A judge’s bombshell ruling threatens to invalidate Trump DOJ appointee’s prosecutions: attorney

Attorney Alina Habba speaking to reporters in New York City on March 21, 2023

After bitter clashes with traditional non-MAGA conservatives he appointed to federal law enforcement positions during his first presidency — including former U.S. attorneys general Bill Barr and Jeff Sessions and ex-FBI director Christopher Wray — Donald Trump is making a concerted effort to pick only ultra-MAGA loyalists for the U.S. Department of Justice (DOJ), the FBI and the U.S. Department of Homeland Security (DHS) this time around. One of those loyalists is Alina Habba, a former personal attorney Trump who chose as interim U.S. attorney for DOJ's District of New Jersey.

When Habba's fourth-month term ended, Trump did two things: He nominated her for the position permanently (which requires a U.S. Senate confirmation vote), and he used legal maneuvers to keep her in the position. But on August 21, Judge Matthew Brann ruled that Habba is now in the position illegally, according to the Federal Vacancies Reform Act of 1998.

In an article published by The Atlantic on August 26, attorney/legal journalist Quinta Jurecic lays out some reasons why keeping Habba in that position without a full U.S. Senate vote is problematic.

Brann's ruling, according to Jurecic, "doesn't just cause problems for Habba going forward."

"If Habba was not legitimately in office," Jurecic explains, "the prosecutions that took place under her are all now in question. The administration has appealed the ruling. 'I am the pick of the president,' Habba insisted on Fox News. 'I will serve this country.'"

The attorney continued, "The chaos around Habba is a glimpse into the dubious methods by which Trump has bent the rules to stock his government with loyalists. Now, those maneuvers have upended prosecutors' work in New Jersey — and potentially around the country."

Jurecic notes that traditionally, a president's U.S. attorney nominations go to the U.S. Senate for a "thumbs-up or -down" vote.

"As with all Senate-confirmed positions," Jurecic explains, "the Senate's constitutional power to advise and consent on U.S. attorney nominations is meant as a check against the president selecting candidates whose only merit, as described in The Federalist Papers, is 'of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.' But this is exactly what Trump finds appealing about appointees like Habba, one of his closer advisers."

Habba, Jurecic observes, has had a "rocky tenure as chief prosecutor" for DOJ's District of New Jersey.

"During her first months at the New Jersey U.S. Attorney's Office," Jurecic observes, "she promised on a podcast to 'turn New Jersey red,' oversaw the filing of criminal charges against Newark Mayor Ras Baraka and Democratic Representative LaMonica McIver after the two clashed with ICE agents at an immigration-detention facility, and decorated a conference room with pictures of herself…. Although Judge Brann declined to dismiss the prosecutions outright, that was the only win for the Justice Department."

Jurecic adds, "In finding the government's shell game around Habba's appointment illegal, he left little wiggle room for Habba to remain in the role…. Trump…. has stretched things to the breaking point. Now, they may finally have snapped."

Quinta Jurecic's full article for The Atlantic is available at this link (subscription required).