Appeals court considers whether Alina Habba can continue as NJ's top prosecutor
In a legal challenge that could have sweeping implications for President Donald Trump's picks for top prosecutors across the country, a federal appeals court heard arguments Monday about whether Trump's former defense attorney, Alina Habba, is unlawfully serving as the acting U.S. attorney in New Jersey.
A federal judge in August concluded that Habba was serving without legal authority after she ended her 120-day term as interim U.S. attorney without being confirmed by the Senate or securing the support of the federal bench in New Jersey.
Through what a federal judge later described as a "novel series of legal and personnel moves," the Trump administration kept Habba, Trump's former personal attorney, in the position by formally withdrawing her nomination then placing her in a role that allowed her to serve as the acting U.S. attorney.
After a defendant being prosecuted by Habba challenged her authority, U.S. District Judge Matthew Braun disqualified her from serving as New Jersey's top prosecutor. After the Trump administration appealed that ruling, the case was heard Monday by a three-judge panel on the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
"Would you concede that there are serious constitutional implications to your theory, or the Government's theory, which really is a complete circumvention it seems of the Appointments Clause?" asked Judge D. Brooks Smith, an appointee of Presidents Ronald Reagan and George W. Bush.
"I do disagree with that, Judge Smith. The office of the United States attorney is an inferior office" not requiring Senate confirmation, a DOJ lawyer responded.
"There's no question that Ms. Habba was appointed by the attorney general, so any Appointments Clause problem has been fully satisfied by the fact that she has an AG appointment," the DOJ attorney said.
When an attorney tried to suggest that Habba was being targeted personally, Judge Smith fired back.
"Nothing about this involves, in my view, Ms. Habba personally," Smith said. "This is about the statutes. This is about the separation of powers. This is about an important position within the firmament of government. This is about process, which is what the system that we operate under every day is all about."
The three-judge panel -- composed of two judges put on the bench by Bush and one by Biden -- is expected to issue a ruling in the coming weeks. With similar legal challenges playing out across the country for other U.S. attorneys who failed to secure confirmations -- including the top prosecutors in Nevada and the Northern New York -- the decision could have sweeping implications for the Justice Department.
Following the arguments, Habba posted on social media to criticize the legal challenge as well as Senate Democrats for failing to consider her nomination.
"When millions of Americans voted for a change in leadership in November, they voted for a new direction. That choice should not be undermined by political obstruction in Congress or by criminal defendants," she wrote.
