Trump Lawyer Alina Habba Rejected as United States Attorney, But Her Setback Could Lead to Supreme Court Win for Trump

The refusal of a New Jersey federal appeals court to reconsider the disqualification of Alina Habba as a United States attorney leaves the Trump administration with only one more appellate card to play — an appeal to the Supreme Court.Ms. Habba — a former personal attorney for President Trump whom he appointed interim U.S. attorney for New Jersey — was pursuing an “en banc” review by the full 11th United States Appeals Circuit. A three judge panel of that same tribunal had, in February, unanimously ruled that she was not lawfully appointed as a United States attorney.In a terse ruling on Monday the entire circuit noted that the issue had “been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service.” No judge who previously ruled on the issue asked for a rehearing, and a majority of the court as a whole decided a second look was unnecessary. The Department of Justice argued that Ms. Habba’s disqualification, if allowed to stand, “would invalidate widespread and longstanding executive branch practices.” That could preview the case that Attorney General Pam Bondi could soon mount at the highest court, which has in recent years been solicitous to Mr. Trump’s claims of presidential prerogative.Ms. Habba, who represented Mr. Trump in the civil fraud case brought by New York Attorney General Letitia James, was appointed as the top federal prosecutor for the Garden State in March, albeit on a temporary basis. A fierce Trump loyalist, she enraged New Jersey’s Democratic establishment when she charged a black Democratic congresswoman, LaMonica McIver, with felonies for her role in a melee outside a New Jersey migrant detention center. The charges have survived numerous motions to dismiss on, among other grounds, Speech or Debate immunity, an extraordinarily robust constitutional protection for lawmakers. Ms. Habba’s path to a vote in the Senate was blocked by New Jersey’s Democratic senators —Andy Kim and Cory Booker — who are avowed critics of Mr. Trump. Due to a Senate convention known as blue slipping, they have veto power over U.S. attorney picks, even when they are in the minority party. The Constitution sees Senate approval as the sine qua non of permanent confirmation. By statute, after 120 days the federal judges in a district are empowered to either extend a temporary appointment or reject it. New Jersey’s judges, overwhelmingly appointed by Democratic presidents, rejected Ms. Habba when her time was up. In August Judge David Brann, a Republican who was appointed by President Obama, denounced the DOJ’s “novel series of legal and personnel moves” intended to keep Ms. Habba in her position. He ruled that because she “is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases.” He mused that “a government operating by handshake and mutual understanding may go along swimmingly, but only for so long as everyone is willing to play by the rules.”The DOJ appealed that ruling to the three judge panel of the Third Circuit, the Philadelphia-based appellate tribunal that oversees Judge Brann and that endorsed his ruling. One of the judges, D. Brooks Smith, an appointee of President Reagan, said during oral arguments that “This is about the statutes. This is about the separation of powers, this is about an important position within the firmament of our government.”Another judge on the panel, Judge D. Michael Fischer, wrote in a unanimous ruling that it is “apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place.” Much of that frustration is attributable to “blue slipping.” Mr. Trump has demanded that the upper chamber’s majority leader, Senator John Thune, abandon the practice but Mr. Thune has refused. Ms. Habba, whom Ms. Bondi has described as a “dear friend,” said in a statement after that decision that “As a result of the Third Circuit’s ruling, and to protect the stability and integrity of the office which I love, I have decided to step down. But do not mistake compliance for surrender. This decision will not weaken the Justice Department and it will not weaken me.”Ms. Bondi subsequently appointed Ms. Habba “Senior Adviser to the Attorney General for U.S. Attorneys, helping drive the fight against violent crime nationwide,” a position created for her at Main Justice. It marks a return to Washington for Ms. Habba, who prior to being seconded to New Jersey was at the White House, working on investigating President Biden’s use of the autopen.Notably not an employee at the Department of Justice these days, NBC reports, is the erstwhile United States attorney for the Eastern District of Virginia, Lindsey Halligan, who was disqualified last month. She also served as a defense attorney for Mr. Trump before being appointed as a federal prosecutor. Ms. Halligan’s prosecutions of the former FBI director, James Comey, as well as of New York’s attorney general, Letitia James, were both dismissed. Also facing disqualification woes is the United States attorney for the Northern District of New York, John Sarcone. The push to disqualify him is being led by Ms. James, whom he is investigating for violating Mr. Trump’s civil rights.Ms. Habba’s appeal is the most mature of this cohort, but if the Supreme Court elects to hear it — four justices are required to want to take a case for it to be granted “certiorari” — all the challenges to Ms. Bondi’s prosecutors are likely to be consolidated into one appeal. While the high court could strengthen the administration’s hand, an adverse ruling could further hobble its effort to appoint prosecutors committed to its agenda.

Trump Lawyer Alina Habba Rejected as United States Attorney, But Her Setback Could Lead to Supreme Court Win for Trump

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