Appeals Court Disqualifies Alina Habba as Prosecutor

Acting New Jersey US Attorney Alina Habba is disqualified after the Trump administration violated federal law to keep her in post, a federal appeals court ruled Monday.

The three-judge panel unanimously upheld a lower court judge’s disqualification order that found Habba’s appointment was non-compliant with a 1998 law governing federal vacancies.

“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” senior US Circuit Judge D. Michael Fisher wrote in the 32-page ruling.

“Its efforts to elevate its preferred candidate for US Attorney for the District of New Jersey, Alina Habba, to the role of Acting US Attorney demonstrate the difficulties it has faced—yet the citizens of New Jersey and the loyal employees in the US Attorney’s Office deserve some clarity and stability.”

The panel, made up of two judges appointed by former President George W. Bush and one appointed by former President Barack Obama, sided with the initial ruling after hearing arguments at which Habba — a former personal attorney for Trump — was present Oct. 20.

Monday’s ruling is the latest legal setback for the White House after a federal judge last week dismissed Virginia criminal cases against former FBI Director James Comey and New York Attorney General Letitia James.

In those cases, the judge concluded that the prosecutor who filed the charges, Lindsey Halligan, was unlawfully appointed to the position of interim US attorney for the Eastern District of Virginia. The Justice Department has said it intends to appeal those rulings.

A similar dynamic is playing out in Nevada, where a federal judge disqualified the Trump administration’s pick to be US attorney there.

Habba’s appointment had been challenged by defendants in two federal criminal cases out of New Jersey. The lower court judge granted their motions to disqualify her from the prosecution and invalidate her actions dating from late July, but stayed the order pending appeal.

The government argued Habba was validly serving in the role under a federal statute allowing the first assistant attorney, a post she was appointed to by the Trump administration, to “temporarily” perform the duties of US attorney.

Habba, 41, was initially sworn in as the Garden State’s top prosecutor March 28, an appointment meant to last 120 days. On July 22, a panel of federal judges voted not to extend her term, elevating First Assistant US Attorney Desiree Grace to the post.

Attorney General Pam Bondi promptly fired Grace and replaced her with Habba.

The appeals court ruled that because Bondi did not first appoint Habba first assistant to Grace before dismissing her, Habba’s later appointment to acting US Attorney was not legal.

In addition, the judges ruled that the law barred Habba from serving as acting US attorney after President Trump nominated her for Senate confirmation June 30, despite later withdrawing the nomination to allow for her appointment to replace Grace.

“[T]he Government’s reading of the nomination bar cuts against its own separation-of-powers argument,” Fisher wrote. “Its interpretation would mean that even rejected nominees—not merely withdrawn nominees—could serve as later-appointed acting officers.”

In her brief tenure, Habba has been at the center of several political controversies.

Shortly after her appointment, she said in an interview with a right-wing influencer that she hoped to help “turn New Jersey red,” a rare overt political expression from a prosecutor.

On May 9, Habba brought a trespassing charge, later dropped, against Democratic Newark Mayor Ras Baraka stemming from his attempt to visit a federal immigration detention center and subsequent confrontation with Immigration and Customs Enforcement officials.

The following month, Rep. LaMonica McIver (D-NJ) was charged with assault stemming from the same incident, a rare federal criminal case against a sitting member of Congress other than for corruption.

McIver denied the charges and pleaded not guilty. The case is pending.