Additional Coverage:
- DOJ lawyer grilled by appeals court on legitimacy of Alina Habba’s role as US attorney in New Jersey (cnn.com)
Federal Appeals Court Grapples with Legality of Alina Habba’s Appointment as NJ’s Top Prosecutor
A federal appeals court is currently deliberating the controversial appointment of Alina Habba as the U.S. Attorney for New Jersey, with a Justice Department lawyer facing a barrage of questions regarding the validity of her role. The legal challenge stems from a lower court’s ruling that found Habba is serving unlawfully, violating the Federal Vacancies Reform Act.
DOJ attorney Henry Whitaker defended Habba’s appointment, arguing that it’s not uncommon for individuals to remain in senior positions even after initial time limits expire. He cited a precedent from the current administration where an attorney led the DOJ’s civil division without Senate confirmation. Whitaker emphasized that the Attorney General’s designation of an individual constitutes a “distinct kind of service,” allowing for the continuation of official functions through delegation.
When pressed on whether delegated authority has an expiration, Whitaker firmly stated it does not. He denied any attempt to circumvent the standard Senate confirmation process, though he conceded the administration has “jumped through hoops” to place its chosen personnel. To demonstrate adherence to normal practice, he noted the recent confirmation of 16 U.S. attorneys.
The Justice Department is appealing the lower court’s decision, which determined that the administration violated the Federal Vacancies Reform Act, a law dictating the process for filling Senate-confirmed positions. This ruling has sparked similar challenges in other states, including Nevada, where the appointed U.S. attorney was also deemed to be serving improperly. Another case concerning the U.S. attorney for the Central District of California is ongoing.
The concept of delegated authority is also expected to be a focal point in the federal charges brought against former FBI Director James Comey by former White House aide Lindsey Halligan, who now serves as U.S. Attorney for the Eastern District of Virginia. Halligan also initiated the criminal case against New York Attorney General Letitia James; both Comey and James deny any wrongdoing.
A three-judge panel from the U.S. Court of Appeals for the Third Circuit, which includes New Jersey, heard arguments on Monday.
The panel consists of two Republican appointees (from Presidents Ronald Reagan and George W. Bush) and one Democratic appointee (from President Barack Obama).
Habba initially served as interim U.S. Attorney for New Jersey until her 120-day term expired.
She subsequently resigned and was then named special attorney, designated as first assistant U.S. attorney, and later delegated the authority of the U.S. Attorney.
Defendants in two separate cases challenged Habba’s authority, arguing she was serving unlawfully. A district court judge sided with the defendants, ruling that the first assistant U.S. attorney at the time of a vacancy should automatically fill the position.
If that is not possible, the president can appoint someone who is Senate-confirmed or has served in the Justice Department for at least 90 days. The Justice Department, however, maintains that Habba can serve through authority delegated by the Attorney General.
Whitaker asserted that various methods exist to fill government vacancies, and the department is choosing which laws to invoke. “We are not asking for limitless power to designate officials,” he stated. He indicated that Habba could serve in her current capacity until February, when a 200-day term expires, but conceded that if she is serving under delegated authority, there is no set expiration.
Abbe Lowell, representing the defendants, accused the DOJ of “constructing this gerry-rigged way to get Ms. Habba to be in power.”
Lowell argued that while the Attorney General can delegate authority for specific tasks, such as investigating mortgage fraud, the comprehensive powers of a U.S. Attorney-including overseeing criminal and civil investigations, giving speeches, and managing personnel-cannot be delegated in their entirety.
“It’s never happened,” Lowell told the panel, adding, “In their interpretation the only thing she doesn’t have is the certificate on the wall that says ‘US attorney.’”
One judge pressed Whitaker on his claim of this being a common practice, highlighting the intricate series of steps taken over a week to reassert Habba’s role as essentially the U.S. Attorney.
The judge asked Whitaker for an example of such a “catenation of events” occurring for the appointment of a U.S. attorney, to which Whitaker responded, “I guess I cannot.” He maintained that the judges should find Habba has the authority to supervise cases, similar to how assistant U.S. attorneys are authorized to conduct criminal investigations, with authority ultimately tracing back to the Attorney General.
Following the court hearing, Habba placed responsibility on Congress for blocking the nominations of over a dozen U.S. attorney candidates. “The President appoints individuals to carry out the mission of this administration and that mandate should be respected.
When millions of Americans voted for a change in leadership in November, they voted for a new direction. That choice should not be undermined by political obstruction in Congress or by criminal defendants,” Habba posted on social media.