An appeals court said Monday that Alina Habba, the former personal lawyer for President Donald Trump, is unlawfully serving as the U.S. attorney in New Jersey.
The ruling affirmed a lower court decision, which disqualified Habba from participating in ongoing cases. The defendants, three men facing criminal charges in New Jersey, argued that her appointment violates the Federal Vacancies Reform Act. The law imposes limitations on how long and under which conditions a presidential appointee can serve without Senate confirmation.
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Habba was appointed the acting U.S. attorney for New Jersey in March, with her interim term set to expire after 120 days unless she received Senate confirmation or the approval of the U.S. district court in New Jersey. Habba, who assumed the role with no experience in criminal law, received neither. The district court judges voted instead to elevate Desiree Leigh Grace, the first assistant U.S. attorney, in July. The Trump administration responded by firing Grace, withdrawing its nomination of Habba to the role and then, after Habba resigned, appointing her as "special attorney" in New Jersey. Since the top prosecutorial job was absent, Habba once again assumed it.
Judge Michael Fisher concluded that her appointment was not "FVRA-compliant" in a 32-page decision.
"It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place," he wrote. "Its efforts to elevate its preferred candidate for U.S. Attorney for the District of New Jersey, Alina Habba, to the role of Acting U.S. Attorney demonstrate the difficulties it has faced — yet the citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office deserve some clarity and stability."
The Trump administration has faced legal pushback elsewhere for installing U.S. attorneys in similar fashion. A federal judge recently dismissed indictments against New York Attorney General Letitia James and former FBI Director James Comey on the grounds that another interim U.S. attorney appointment was invalid.
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