A line in the musical Hamilton claims, “Everything is legal in New Jersey.” This is not precisely true. At the moment, however, nobody seems to know who in the state is in charge of enforcing federal law.
Last Thursday, a judge ruled that Alina Habba, Donald Trump’s pick to head the U.S. Attorney’s Office in New Jersey, has been illegally leading the office since July 1. That doesn’t just cause problems for Habba going forward: If Habba was not legitimately in office, the prosecutions that took place under her are all now in question. The administration has appealed the ruling. “I am the pick of the president,” Habba insisted on Fox News. “I will serve this country.”
The chaos around Habba is a glimpse into the dubious methods by which Trump has bent the rules to stock his government with loyalists. Now those maneuvers have upended prosecutors’ work in New Jersey—and potentially around the country.
Typically, the president nominates U.S. attorneys for confirmation by the Senate, which gives the president’s choice a thumbs-up or -down. The statutes that allow temporary appointments are structured that way for a reason. As with all Senate-confirmed positions, the Senate’s constitutional power to advise and consent on U.S.-attorney nominations is meant as a check against the president selecting candidates whose only merit, as described in The Federalist Papers, is “of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
But this is exactly what Trump finds appealing about appointees like Habba, one of his closer advisers. Trump originally selected Habba in late March under a statute that allows the president to select an interim U.S. attorney when the chief prosecutor’s office is vacant. Interim appointments expire after 120 days; from that point on, judges in the district may make their own selection. In June, the president officially nominated Habba to fill the position via the normal process. The Senate did nothing to move on Habba’s nomination, and on July 22—120 days since Trump announced that he had appointed Habba “effective immediately”—New Jersey judges selected a career prosecutor in the office, Desiree Grace, for the role instead.
Judges’ authority to make such picks had been previously uncontroversial, but the Trump administration exploded with rage. “When judges act like activists, they undermine confidence in our justice system,” scolded Deputy Attorney General Todd Blanche on X. The Justice Department devised a “solution” to slide Habba back into the job—a Rube Goldberg series of maneuvers, taking advantage of the tangle of authorities that governs temporary appointments. Grace, a registered Republican who previously had earned accolades for her aggressive prosecution of violent crime, was fired. Habba dropped her bid for the permanent role and was reappointed, not as interim U.S. attorney, but as a “special attorney” and the “first assistant” to the U.S. attorney, who did not exist—allowing Habba to step into that role under a different law, the Federal Vacancies Reform Act. Essentially, Habba became her own chief aide.
In his ruling last week, Judge Matthew Brann said that this scheme violated the Vacancies Reform Act. Among other problems with the reappointment, the judge held that the statute forbids slotting a first assistant into the top job if the assistant was appointed after the vacancy in question arose—which, in Habba’s case, is exactly what the Justice Department did.
Habba was in fact the second temporary U.S. attorney to be slotted back into the job in this manner. In the Northern District of New York, the district’s judges declined to appoint John Sarcone as the U.S. attorney after his interim appointment expired on July 15, following a rocky 120 days during which the Albany Times Union reported that the residence Sarcone had listed in the city appeared to be an abandoned building. (U.S. attorneys are required to live in the district they oversee.) Sarcone, too, was transformed into an acting U.S. attorney by becoming his own first assistant. Although details are hard to come by, the Trump administration seems to have used a similar sleight of hand in extending the terms of temporary U.S. attorneys in New Mexico, Nevada, and the Central District of California.
These temporary leaders have struggled to gain the respect of their offices. In California, Acting U.S. Attorney Bill Essayli has pursued exorbitant criminal charges against anti-ICE protesters, reportedly notching an embarrassing string of defeats in front of grand juries that refused to charge. In New Mexico, Acting U.S. Attorney Ryan Ellison’s office faced repeated admonition from judges over his insistence on prosecuting migrants for trespassing in a freshly created military zone along the United States–Mexico border. In Nevada, Acting U.S. Attorney Sigal Chattah has a history of racist remarks against Black officials, once commenting that the state’s attorney general, Aaron Ford, who is Black, should be “hanging from a fucking crane.”
Habba, too, had a rocky tenure as chief prosecutor. During her first months at the New Jersey U.S. Attorney’s Office, she promised on a podcast to “turn New Jersey red,” oversaw the filing of criminal charges against Newark Mayor Ras Baraka and Democratic Representative LaMonica McIver after the two clashed with ICE agents at an immigration-detention facility, and decorated a conference room with pictures of herself. (The office dropped the charges against Baraka, but only once a magistrate judge excoriated prosecutors for bringing what appeared to be a politically motivated case.)
Democratic senators in these states have voiced concerns over these appointees, and could block any formal nomination for so long as Republicans respect existing Senate norms. Trump regularly rages against these constraints. But the scheme around acting appointments has meant that—for some period, at least—these officials haven’t had to worry about securing confirmation. Instead, they can focus on pleasing the president.
Habba is the only prosecutor of this group whose appointment has been challenged in court. A handful of defendants in criminal cases argued that the charges against them should be thrown out because Habba’s appointment was invalid. This is how the case ended up before Judge Brann of the Middle District of Pennsylvania, who joked during a hearing that he had been assigned to oversee the knotty litigation “for my sins”—all of the district judges in New Jersey having been barred from the case because of their role in appointing Habba’s short-lived successor.
Although Judge Brann declined to dismiss the prosecutions outright, that was the only win for the Justice Department. In finding the government’s shell game around Habba’s appointment illegal, he left little wiggle room for Habba to remain in the role. The judge did pause his ruling to give the government time to appeal. However, the litigation has already cast doubt over the normal process of law enforcement in the state, as prosecutors scramble to shore up their cases against challenges to Habba’s illegitimate involvement. During a hearing held by Judge Brann, New Jersey Assistant U.S. Attorney Mark Coyne explained that some New Jersey judges had paused work on criminal cases while they waited for confusion over Habba’s role to be resolved. Shortly after Judge Brann ruled, another federal judge indefinitely delayed a sentencing in a New Jersey fraud case over concerns as to whether Habba had any authority to supervise the prosecution. Other defendants may soon raise their own challenges, both in New Jersey and the Northern District of New York—as well as in the other districts with temporary appointees. Because Brann’s ruling is on hold, it’s not clear what authority Habba might be able to exercise going forward without potentially upending months of prosecutors’ work down the road should higher courts find that she really is not in her role legally.
The Trump administration chose to risk this chaos. Senate confirmations often move slowly, which can lead to delays in confirming U.S. attorneys. But past administrations have dealt with this problem by allowing longtime career officials to run prosecutors’ offices while nominations are pending—an approach explicitly allowed by the Federal Vacancies Reform Act. There’s no shortage of qualified professionals, like the fired Desiree Grace, available to take on such temporary roles. Trump, though, has decided that it’s more important to him to install loyalists whom he can trust to harass his enemies and go easy on his friends. Whether that upends the actual work of law enforcement is apparently beside the point.
The effects of this choice may ripple beyond the Justice Department. Judge Brann’s ruling would sharply constrain the president’s choice of acting officials in Senate-confirmed offices, requiring many of the Trump-selected temporary leaders currently running various agencies to be replaced with career government employees. It would also prevent the administration from filling vacant offices by delegating power to temporary officials like David Richardson, who is currently running FEMA under the ungainly title of “Senior Official Performing the Duties of FEMA Administrator.” Information on what authority any given official is acting under can be difficult to come by, but such placeholders may currently make up a non-negligible chunk of administration officials. According to data compiled by The Washington Post and the Partnership for Public Service, Trump has yet to nominate anyone to almost 300 out of 800 tracked Senate-confirmed positions, and only 126 nominees have been confirmed by the Senate.
Attorney General Pam Bondi seems committed to fighting for Habba—in part as a way of continuing the administration’s efforts to delegitimize the courts by decrying “activist judges.” (Judge Brann, it is worth noting, is no one’s definition of a liberal: He was once active in the Pennsylvania Republican Party and is a member of the Federalist Society and the National Rifle Association.) Even setting aside the New Jersey U.S. Attorney’s Office, the sheer scope of temporary officials affected by Brann’s ruling practically required the administration to appeal. “A government operating by handshake and mutual understanding may go along swimmingly,” Judge Brann wrote, “but only for so long as everyone is willing to play by the rules.” Other presidents have taken advantage of this approach to gain some flexibility in the face of Senate delays. Trump, though, has stretched things to the breaking point. Now they may finally have snapped.
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