A federal appeals court on Monday considered whether Alina Habba, a former personal attorney to President Trump, is lawfully acting as New Jersey’s top federal prosecutor, in a case that could help clarify the limits of a president’s power to keep U.S. attorneys in office without Senate involvement.
In August, a district court judge ruled that Ms. Habba had been acting as U.S. attorney unlawfully, plunging a struggling New Jersey court system into disarray and placing the work of the federal prosecutor’s office there into a novel form of legal limbo. The judge, Matthew W. Brann, found that Ms. Habba’s interim tenure had expired in early July and that she had not lawfully become the acting U.S. attorney, despite what the Justice Department had said.
The department appealed that decision, and in a Philadelphia courthouse on Monday three judges from the U.S. Court of Appeals for the Third Circuit bombarded one of its lawyers with questions while Ms. Habba watched from the gallery.
Ms. Habba is one of several U.S. attorneys who have remained in power after their 120-day interim tenures expired. In each case, the Justice Department has taken extraordinary measures to keep its favored prosecutor in charge. The fundamental disagreement in Monday’s hearing was over whether those measures were legal.
The stakes are high. If the judges find that the government had the authority to act as it did in Ms. Habba’s case, it would give President Trump enormous latitude to keep U.S. attorneys in power, regardless of whether they are confirmed by the Senate. The strategy is part of a broader pattern that has allowed Mr. Trump to take closer control of the Justice Department than any president in the past half-century.
On Monday, the Justice Department’s lawyer, Henry C. Whitaker, sought to convince the judges that the moves the administration had made to put Ms. Habba in office were not only lawful, but normal.
The administration, Mr. Whitaker said, had taken “precise and precisely timed steps,” not to evade the law but to be “scrupulously careful” to comply with it. Mr. Whitaker’s fundamental argument was that the law grants the president numerous ways to place a desired official in office, and that the Justice Department had availed itself of those methods.
The lawyer Abbe D. Lowell, representing defendants who have challenged Ms. Habba’s legitimacy, disagreed.
The government, he said, had constructed a means by which “somebody never has to be nominated and confirmed, and can serve all the functions of a U.S. attorney, forever.” He said that the administration had cobbled together “a chimera of seven different statutes” which it cited by turns, depending on what it was trying to accomplish.
The judges, too, appeared to find the government’s position dubious. They frequently cut Mr. Whitaker off midsentence to pose additional questions. One of them, D. Brooks Smith, said that the administration’s maneuvers in New Jersey seemed to him a “complete circumvention” of the appointments clause, a law that governs the ways high-ranking officials are selected and confirmed.
For a time, the actual sequence of steps the Justice Department had taken to keep Ms. Habba in place went unacknowledged in the hearing. But when Mr. Whitaker described those moves as consistent with longstanding practice, Judge Smith seemed to object, and insisted on reciting the facts.
The judge then described in detail the moves the administration took in July, when Ms. Habba’s tenure as interim U.S. attorney was set to lapse and New Jersey district court judges appointed her first assistant, Desiree Grace, to lead the office.
The attorney general, Pam Bondi, quickly fired Ms. Grace, and the president withdrew Ms. Habba’s nomination to be permanent U.S. attorney from consideration by the Senate.
Then, Ms. Bondi appointed Ms. Habba to take Ms. Grace’s position as first assistant, which, the government argued, automatically elevated Ms. Habba to the role of acting U.S. attorney. At the same time, Ms. Bondi also appointed Ms. Habba to be a “special attorney,” overseeing the district of New Jersey.
After reviewing this history, Judge Smith asked Mr. Whitaker whether he could name another instance in which “such a concatenation of events has occurred with respect to the appointment of a U.S. attorney.”
“I guess I cannot,” Mr. Whitaker acknowledged. He said, though, that the executive branch had undertaken similar moves in analogous contexts at other federal agencies.
The judges also appeared to question Ms. Habba’s résumé; though she had represented Mr. Trump in several civil cases, she possessed no criminal experience before she was appointed to lead the New Jersey office. One of the judges, D. Michael Fisher, said it seemed to him that Congress had sought to make it clear that an acting federal officer should be an “experienced person.”
He asked Mr. Whitaker if he disagreed. Mr. Whitaker said he did.
Judge Smith insisted that “nothing about this involves — in my view — Ms. Habba personally.”
“This is about the statutes,” he said. “This is about the separation of powers, this is about an important position within the firmament of our government. This is about process.”
Jonah E. Bromwich covers criminal justice in the New York region for The Times. He is focused on political influence and its effect on the rule of law in the area’s federal and state courts.
Tracey Tully is a reporter for The Times who covers New Jersey, where she has lived for more than 20 years.
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