Trump and Bondi’s finagling with the appointment process has gotten them nowhere.
Trump and Bondi’s finagling with the appointment process has gotten them nowhere.
A federal appeals court has invalidated the Trump Justice Department’s attempt to install Alina Habba as the de facto United States Attorney for the District of New Jersey (DNJ). The 32-page ruling, issued Monday by a unanimous three-judge panel of the Third Circuit is a sweeping rejection of President Trump’s efforts to circumvent the requirement that district U.S. attorneys be confirmed by the Senate before taking office.
Habba was one of Donald Trump’s private lawyers. She played prominent roles in the civil cases brought against him by New York Attorney General Letitia James and the journalist E. Jean Carroll, and supporting roles on the legal teams that defended Trump in connection with criminal cases brought by the Biden Justice Department and elected Democratic district attorneys in Manhattan and Atlanta. She had never been a prosecutor when Trump, acting through Attorney General Pamela Bondi, named her as the DNJ’s interim U.S. attorney. The president also nominated Habba to be the DNJ’s full-fledged U.S. attorney — i.e., Senate-confirmed and presidentially appointed. Yet, even in a Senate with a six-seat Republican majority, Habba’s nomination got a chilly reception and was never acted on.
District U.S. attorneys are presumed to be inferior officers of the United States. Under the Constitution’s appointments clause (art. II, §2, cl.2), officers of the United States must be nominated by the president and confirmed by the Senate before serving — a process referred to as “PAS” (president and Senate). The appointments clause permits Congress leeway to provide alternative means for appointing inferior officers, but it has subjected district U.S. attorneys to the same PAS process that applies to officers (see Section 541). (That’s why it doesn’t matter whether district U.S. attorneys are deemed officers or inferior officers, a technical matter the Supreme Court has never settled.)
The confirmation process has frustrated President Trump, who believes he was undermined by the Justice Department in his first term and, in his second, has sought to install loyalists. The elevation of fealty to the president over experience and legal acumen creates a challenge because the Senate tends to prioritize the latter attributes — and because, under the chamber’s rules, senators from the state in which a district is located can block the appointment of U.S. attorney nominees (as well as nominees for district judgeships).
Trump’s resistance to negotiating on appointments with senators from the opposition party (as all presidents have had to do) has led him and Attorney General Bondi to pursue dubious strategies to avoid the PAS process. Habba’s installation in the DNJ has featured all of them.
To fill the vacancy created after the Biden-appointed, Senate-confirmed U.S. attorney resigned near the start of Trump’s term, Habba was initially appointed as an interim U.S. attorney under Section 546 (of Title 28, U.S. Code). When that 120-day term expired, it became clear that she wouldn’t be confirmed by the Senate or approved for an extension by the DNJ’s judges, who — pursuant to Section 546(d) — named Desiree Grace (then the DNJ’s first assistant U.S. attorney (FAUSA)) as the interim U.S. attorney until the vacancy was lawfully filled.
The Trump administration reacted by firing Grace and attempting to appoint Habba both as the de facto U.S. attorney (under Bondi’s general delegation authority, which we’ll come to) and as the acting U.S. attorney under the Federal Vacancy Reform Act (FVRA — Section 3345 of Title 5, U.S. Code).
The administration tried to pull this off though the following machinations:
- (1) Trump withdrew Habba’s nomination because the FVRA disqualifies a nominee from serving as acting U.S. attorney (see Section 3345(b)(1)(B));
- (2) Bondi issued an order appointing Habba as a “special attorney” and delegating her to conduct “any kind of legal proceedings . . . which United States Attorneys are authorized to conduct” (principally under Section 515 of Title 28, U.S. Code); and
- (3) Bondi further designated Habba as the DNJ’s new FAUSA, intending to make her the de facto acting U.S. attorney under the FVRA.
Naturally, criminal defendants have challenged Habba’s status and sought to have the cases against them dismissed. Habba’s precarious status has also caused tumult in the DNJ: Judges are left to wonder whether she may legitimately direct various prosecutorial processes (indictments, search warrants, wiretap applications, etc.). In rendering its decision today, the panel obliquely alluded to this tempest, observing that “the citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office deserve some clarity and stability.”
As I’ve previously detailed (here and here), the Third Circuit assigned an Obama appointee, Chief Judge Matthew Brann of the Middle District of Pennsylvania, to rule on challenges to Habba’s status in the DNJ. On August 21, Judge Brann issued a thorough memorandum opinion, ruling that Habba was not qualified to function as the U.S. attorney but declining, at least for the time being, to dismiss indictments brought under her stewardship. The Trump DOJ appealed Brann’s ruling.
That was the occasion for today’s unanimous Third Circuit ruling, which was written by Judge D. Michael Fisher, a Bush-43 appointee, who was joined by Judges David Brooks Smith and Luis F. Restrepo, who are Bush-43 and Obama appointees, respectively.
On appeal, the issue of Habba’s original interim appointment was not disputed. (After Trump’s initial interim appointee served about three weeks, Habba served the rest of the statutory 120-day term, which lapsed; there was no effort thereafter to extend Habba’s appointment under Section 546). The Third Circuit panel easily concluded that Habba was not qualified under the FVRA, and that Bondi’s effort to shore up that gambit by making her a special attorney and delegating broad prosecutorial power was unavailing.
On the FVRA issue, the panel examined the totality of Section 3345 and Congress’s purpose in enacting it to supersede a prior vacancy statute. The judges found that Habba was not qualified because she was not the FAUSA at the time the vacancy arose. The statute (which applies to all government officer vacancies, not just those at the Justice Department) limits acting officers to the first assistant or, in the president’s discretion, a Senate-confirmed official or another experienced person who has served in the same office for at least 90 days. The court rejected the Trump DOJ’s theory that one could lawfully be made acting U.S. attorney if she had been elevated to FAUSA sometime after the vacancy opened. Such a practice would defeat Congress’s clear objectives of having, for a short duration, experienced appointees and continuity in an agency’s operations.
The panel also rebuffed the DOJ’s contention that Trump’s withdrawal of Habba’s nomination to be the Senate-confirmed U.S. attorney cured the problem that Section 3345 disqualifies such nominees. The plain text of the statute applies the disqualification to anyone the president has nominated for the vacant office; the withdrawal of her nomination does not alter the fact that Habba was nominated (it suggests that the nomination was withdrawn solely to circumvent the confirmation requirement).
Finally, the panel swept aside Bondi’s attempt to delegate de facto U.S. attorney authority to Habba. To be sure, the aforementioned Section 515 does give the attorney general broad delegation authority. The FVRA, however, has an “exclusivity” provision — Section 3347 — that, on the relevant facts here, makes Section 3345 the only means for temporarily authorizing an acting official to perform the functions of a vacated executive office.
The judges took note of the fact that the FVRA was enacted, in large part, to address efforts by presidents to avoid the Senate confirmation through acting appointments. If the AG were permitted to end-run the exclusivity provision by simply delegating her own broad prosecutorial power to anyone of her choosing, then the exacting restrictions that Congress has placed on what are supposed to be temporary appointments (while the confirmation process is presumably underway) would be thwarted.
This could bring the Third Circuit’s ruling into tension with the decision of Judge J. Michael Seabright, a Bush-43 appointee, in the case of Bilal Essayli, the lawyer the Trump administration installed to run the U.S. attorney’s office in Los Angeles (the Central District of California). (I wrote about that case here.)
Although Judge Seabright concluded that Essayli was not qualified to function as an interim or acting U.S. attorney, he found that Bondi had the power to appoint him as the district’s FAUSA. In that capacity, he concluded, Essayli could continue to supervise cases without running afoul of the Section 3347 exclusivity provision.
Seabright is a district judge sitting in the Ninth Circuit, so his ruling in no way binds the Third Circuit (a higher court in a different federal jurisdiction). Still, the Third Circuit’s reasoning is noteworthy. The panel described the Trump DOJ’s position as follows:
Even if Habba is not the Acting U.S. Attorney under the FVRA, she nonetheless “may continue to exercise prosecutorial and supervisory authority . . . pursuant to the Attorney General’s express delegation of authority to her in her capacity as a Special Attorney and First Assistant U.S. Attorney.”
The panel then emphatically rejected this theory, reasoning that such a “broad delegation” would be “directly contrary to the exclusivity provision in the FVRA.”
In sum, the Third Circuit appears to be (a) collapsing the positions of acting U.S. attorney and FAUSA into one job — call it de facto U.S. attorney — and (b) holding that the AG may not use her broad delegation authority have this de facto U.S. attorney run the prosecutor’s office. Judge Seabright, by contrast, regards acting U.S. attorney and FAUSA as discrete positions — even if the Trump DOJ is using them as one and the same — and reasons that (a) resorting to the exclusivity provision to disqualify a lawyer from being an office’s acting U.S. attorney does not bar that lawyer from being the office’s FAUSA, and (b) if the Trump DOJ effectively endows such a newly appointed FAUSA with all the powers of a U.S. attorney, there is nothing a court can do about it.
I anticipate that the Trump DOJ will try to argue that Habba is still the FAUSA in the DNJ, and that the Third Circuit’s ruling does not squarely disqualify her from running the U.S. attorney’s office in that capacity — even if FVRA and its exclusivity provision technically prevent her from taking the mantle of acting U.S. attorney. We’ll see where this goes, but eventually the Supreme Court may have to settle any ambiguity about the authority of Trump non-Senate-confirmed operatives.