Trump Attempts to Exclude Congress from U.S. Attorney Appointments

Alina Habba asserted that she was serving as the acting United States attorney for New Jersey, a claim endorsed by President Donald Trump and Attorney General Pam Bondi. This week, the U.S. Court of Appeals for the 3rd Circuit unanimously ruled that all three were mistaken. The decision, issued by a panel that included two judges appointed by George W. Bush, underscored a troubling pattern stretching from New Jersey to New York, Virginia, New Mexico, Nevada, and California, where Trump attempted to place loyal allies into U.S. attorney roles without the Senate approval required by the Constitutions Appointments Clause.

Habbas situation demonstrated the unusual measures taken to bypass that constitutional requirement. When U.S. Attorney Philip Sellinger stepped down in January, his first assistant automatically assumed his duties. John Giordano briefly served as interim U.S. attorney before Bondi replaced him with Habba in late March. Three months later, Trump formally nominated Habba for the office, a role that required Senate confirmation. Her prospects were uncertain due to her limited criminal law background, opposition from both Democratic senators in New Jersey, and her involvement in unsuccessful pro Trump lawsuits that resulted in a penalty of 938,000 dollars upheld by a federal appeals court last month.

Federal law limits interim U.S. attorneys to a 120 day term unless extended by district judges. Instead of keeping Habba in place, the judges selected Desiree Grace, a career prosecutor and then first assistant. Bondi removed Grace and replaced her. On July 24, Trump withdrew Habbas nomination, Habba left her interim post, and Bondi appointed her as first assistant in an effort to automatically elevate her to the top position left vacant by Sellinger.

Judge D. Michael Fisher noted that the administration appeared frustrated by legal and political barriers to placing its chosen candidates. The appeals court held that those frustrations did not justify attempts to avoid statutory requirements. Fisher wrote that Habba could not serve as acting U.S. attorney because only the first assistant in office at the moment the vacancy occurs may assume that role under the Federal Vacancies Reform Act. Habba was additionally barred because she had not served as first assistant for at least ninety days and had been nominated to the permanent role.

The court rejected Bondis effort to classify Habba as a special attorney, explaining that the FVRA is the exclusive authority for temporary acting appointments unless another law clearly states otherwise. The panel warned that the administrations interpretation would allow Habba to function indefinitely as a de facto U.S. attorney without Senate confirmation.

A similar pattern emerged in the Eastern District of Virginia, where Trump selected Lindsey Halligan, another former Trump attorney without prosecutorial experience, to replace U.S. Attorney Erik Siebert after Siebert hesitated to pursue cases against two long standing Trump adversaries, former FBI Director James Comey and New York Attorney General Letitia James. Last month, a federal judge dismissed the indictments Halligan had brought, finding that her appointment violated the same 120 day limit.

The court indicated that these setbacks might have been avoided if the administration had followed the legal constraints on interim appointments.

Copyright 2025 by Creators Syndicate Inc.

Author: Sophia Brooks