A Barack Obama-appointed judge in Pennsylvania ruled Thursday that President Donald Trump’s former lawyer, Alina Habba, has been unlawfully serving as the top federal prosecutor in New Jersey since July 1. This calls into question all actions by that office after that date.
Chief U.S. District Judge Matthew Brann ruled that, despite the "novel series of legal and personnel moves,” Habba’s term as the interim U.S. Attorney ended no later than July 28.
To fully understand the story, let's look at the timeline.
It all started with a small-time drug dealer contesting a three-count drug and weapons indictment.
The Biden-appointed United States Attorney for the District of New Jersey, Philip R. Sellinger, resigned effective midnight on January 8, as a new administration was taking office. His First Assistant United States Attorney, Vikas Khanna, became Acting United States Attorney and continued in that role until March 8, when John Giordano was appointed as Interim United States Attorney. He held the position until March 24, when President Trump used his Truth Social account to announce he had selected Alina Habba to be the Interim U.S. Attorney.
Pam Bondi swore in Habba on March 28. The term "Interim" is more than a descriptor. Under federal law, an "interim" official can only serve for a maximum of 120 days.
Interim appointments under section 546 are time limited. The statute provides that “[a] person appointed as United States attorney under this section may serve until the earlier of” the Senate’s confirmation of the President’s nominee to the full position, or “the expiration of 120 days after appointment by the Attorney General under this section.”11 For Ms. Habba, that meant that her term ended, at the latest, on Saturday, July 26, 2025.
President Trump did not nominate Habba until June 30, giving the Senate a maximum of 26 days to act—fat chance.
On July 22, the federal judges in the "District of New Jersey invoked their statutory power to appoint a United States Attorney upon the expiration of an Interim United States Attorney’s 120-day term pursuant to section 546(d)." Then the script descended into chaos.
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The judges appointed Desiree Grace, Habba’s First Assistant, as the United States Attorney. As an aside, despite being "legal," the idea that federal judges can appoint officers in the Executive Branch makes as much sense as allowing them to appoint senators or Supreme Court justices; that is, it makes no sense.
The Trump administration took umbrage, and rightfully so.
Deputy Attorney General Todd Blanche accused “[t]he district court judges in NJ [of] trying to force out [Ms. Habba] before her term expires at 11:59 p.m. Friday.” And after the Order was docketed, Ms. Bondi posted that “politically minded judges refused to allow [Ms. Habba] to continue in her position, replacing Alina with the First Assistant.
The day that Grace was appointed, Bondi fired her.
Despite being fired, Grace told the judges that she was ready to take charge. Underscoring her profoundly unserious nature, Grace took to LinkedIn (lolol) to announce she would “follow that Order [of the District of New Jersey] and begin to serve in accordance with the law.” Did I say "lolol?"
On July 25, a series of deft moves, or shenanigans, YMMV, began to keep Habba in place. President Trump withdrew her nomination to be U.S. Attorney. Habba resigned as Interim U.S. Attorney. Then Bondi appointed her "'Special Attorney to the Attorney General' pursuant to 28 U.S.C. §§ 509, 510, and 515 and “authorized [her] to conduct in the District of New Jersey, any kind of legal proceedings, civil or criminal, including Grand Jury proceedings and proceedings before United States Magistrates, which United States Attorneys are authorized to conduct.” For good measure, Habba was also appointed as First Assistant United States Attorney and President Trump re-fired Grace "pursuant to his authority under 28 U.S.C. § 541(c) and Article II of the U.S. Constitution.”
The backstory was complicated enough, so I won't go into the judge's reasoning. The case was assigned to Judge Brann by the Chief Judge of the Third Circuit after the defendant demanded his indictment be quashed because Habba was not the legit U.S. Attorney. As the judge handling his case had voted to install Grace, a more neutral judge was appointed by the Circuit.
Brann said he’s putting his order on hold pending an appeal.
Because of Senator Thune's inability or unwillingness to break the logjam holding up nominations, several interim U.S. Attorneys are facing a vote by a group of judges. Most of those are going for the administration, but there are a couple that seem doomed to follow Habba's rejection.
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