Topline
The Justice Department confirmed Friday that former Trump defense attorney Alina Habba will keep serving as U.S. Attorney in New Jersey, seemingly using a little-known legal maneuver to keep her in the role after federal judges voted to replace the staunch Trump ally earlier this week—though there still could be a conflict over her authority.
Alina Habba speaks to reporters outside Manhattan Criminal Courthouse on May 30, 2024 in New York … More
Key Facts
Habba has been designated as the Acting U.S. Attorney in New Jersey, the agency confirmed to Forbes in an email, after she previously served as the interim U.S. Attorney in the state.
Habba’s term as the interim U.S. attorney expired this week, and since the Senate never voted to confirm her, it was up to federal judges in the state to vote to extend her term—which they declined to do, instead appointing her deputy Desiree Leigh Grace to fill the role on Tuesday.
The Trump administration then fired Grace from the DOJ hours later, leaving it up in the air as to what would happen once Habba’s term formally expired on Friday.
Habba suggested Thursday she would remain in the role—tweeting, “I am now the Acting United States Attorney for the District of New Jersey”—which the DOJ confirmed Friday.
While the DOJ hasn’t responded to questions over how specifically Habba was appointed, an agency official cited by Politico suggested the government used a provision of federal law that allows the DOJ to appoint Habba into the number two role at the U.S. attorney’s office, but then promote her to Acting U.S. Attorney because there’s no one else filling that role.
The Trump administration also formally withdrew Habba’s nomination as the permanent U.S. attorney, which takes her out of consideration to be voted on by the Senate, but allows her to be appointed to the role in an acting capacity.
What To Watch For
The federal law that the DOJ likely used to re-install Habba as U.S. Attorney allows her to serve for 210 days, and it remains unclear what could happen after that point, since she’s unlikely to be confirmed by the Senate.
How Was Alina Habba Allowed To Keep Serving As U.s. Attorney?
Habba was previously only allowed to serve for 120 days as U.S. attorney, and when her term expired without the Senate confirming her or judges voting to keep her in place, she was ineligible to simply be appointed to the role again without getting Senate confirmation. As a result, the Trump administration likely used the Federal Vacancies Reform Act in order to keep Habba in her role, legal experts speculate. That federal law has a provision saying that if there’s a vacancy in a role that requires Senate confirmation, like U.S. attorneys, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” While the DOJ has not confirmed this was the case, it’s expected the DOJ named Habba to be the first assistant at the U.S. attorney’s office and then promoted her to the U.S. Attorney role under the FVRA, since the top role was vacant. That’s what the Trump administration previously did in the Northern District of New York after judges there declined to extend U.S. Attorney John Sarcone III’s term. Georgetown University law professor Steven Vladeck noted prior to Habba’s re-appointment that such maneuvering would likely be legal, writing, “It’s a stretch, but one that I do believe the law allows.”
What About Desiree Leigh Grace?
Grace is an experienced prosecutor whom New Jersey judges formally appointed to replace Habba as U.S. attorney. While the DOJ’s decision Tuesday to fire her meant she had to immediately step down as Habba’s first assistant and leave the DOJ entirely, there had been some ambiguity about whether she still had legal grounds to become the U.S. attorney when Habba’s term expired on Friday. Even though Grace was fired from the DOJ, federal judges are allowed to appoint someone from outside the agency to serve as U.S. attorney, Politico noted, suggesting the prosecutor could potentially rejoin the agency to serve in the role. Grace—whom The New York Times notes is a registered Republican—suggested in a social media post she was considering doing just that, writing, “It will forever be the greatest honor that [the judges] selected me on merit, and I’m prepared to follow that order and begin to serve in accordance with the law,” as quoted by the New Jersey Globe. That was before Habba was named as the Acting U.S. Attorney, however, and it remains unclear if Grace will now step aside in response to that, or if she could try to still lay claim to the role through a potential legal battle. Even if Grace were allowed to become U.S. Attorney, her tenure would likely be short-lived, however, as President Donald Trump could simply fire her and promote Habba again.
Key Background
Habba’s appointment as U.S. attorney came after the lawyer had become known as one of Trump’s most ardent defenders, serving as one of the president’s personal defense attorneys from 2021 through his inauguration. She represented Trump in such high-profile cases as the civil fraud trial against him and his company and writer E. Jean Carroll’s defamation case against him, though she did not work on his criminal cases and had no prosecutorial experience prior to being named U.S. attorney. Habba also became a frequent Trump advocate through television appearances and on social media, and appeared at such events as the Republican National Convention and CPAC. She was named as U.S. attorney in March after initially serving as an advisor to Trump, and is one of several former Trump defense attorneys that garnered high-ranking roles in his second administration, along with Deputy Attorney General Todd Blanche, Solicitor General Dean John Sauer and Principal Associate Deputy Attorney General Emil Bove, whom Trump is also trying to appoint as a federal judge.
Further Reading
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