When a court ruled that Alina Habba’s appointment as acting U.S. attorney for New Jersey was illegal, it unequivocally disqualified a loyalist to President Donald Trump from a key post.
But two days later, both Habba and the Department of Justice (DOJ) continue to claim that she is the top federal prosecutor in the state.
It’s part of a pattern. Last month, a federal judge drew a similar conclusion about Lindsey Halligan, another one of Trump’s temporary appointees. But the DOJ continues to describe her as a U.S. attorney — often even dropping “acting” from her title.
Since taking office in January, Trump has moved to place loyalists at the helm of key U.S. attorney’s offices across the country, part of his wider effort to refashion the DOJ into his personal law firm.
The DOJ’s failure to acknowledge court rulings against Habba and Halligan, who had no prosecutorial experience when they were appointed, fits into a broader pattern: the Trump administration’s callous disregard for judicial authority.
Monday, a three-judge panel for the Third Circuit Court of Appeals upheld a lower court ruling that found Trump and Attorney General Pam Bondi’s maneuvers to keep Habba at the helm of the U.S. Attorney’s Office for New Jersey violated federal vacancy laws and the Senate confirmation process.
Despite the court order, Habba, a former personal attorney to Trump, still claims the title on both her personal and official DOJ X accounts, where she publishes a steady stream of pro-Trump content and photographs with administration officials and MAGA luminaries.
The DOJ’s official website also lists Habba as acting U.S. attorney for New Jersey.
The DOJ still has several weeks to ask the full Third Circuit to review the panel’s ruling, though it has not done that so far. In the meantime, Habba’s disqualification remains in effect, raising stark questions about who exactly is the top federal prosecutor in New Jersey.
As of Wednesday morning, Habba, Bondi and other senior DOJ officials had not publicly commented on her disqualification.
The DOJ did not respond to questions from Democracy Docket about who now leads the New Jersey office. The Executive Office for United States Attorneys, the DOJ office that supports U.S. attorneys, also did not respond.
Undermining judicial authority
Habba’s disqualification came just a week after a federal judge dismissed charges against former FBI Director James Comey and New York Attorney General Letitia James (D), finding that Halligan, a former Trump personal attorney who was hand-picked to bring charges against them, was also unlawfully appointed.
But the DOJ continues to make broad assertions about her position as well.
On its official website, the department says that the Eastern District of Virginia — one of the most prestigious U.S. attorney’s offices in the country — is “led by United States Attorney Lindsey Halligan.”
By excluding “acting” or “interim” in her title, the DOJ appears to be asserting that Halligan is a permanent U.S. attorney, even though she was never confirmed by the Senate or appointed by judges in the district.
Halligan, too, has claimed the title of a full U.S. attorney in court documents filed after her disqualification.
In sworn court testimony, Bondi has claimed that because she appointed Halligan as a “special attorney,” Halligan should be able to perform all the same functions as a U.S. attorney.
The attorney general made a similar move in response to the challenge against Habba’s appointment. However, the appeals court panel Monday threw cold water on Bondi’s attempts to funnel U.S. attorney powers into the special attorney title, saying it is “plainly prohibited” by federal law.
Circuit Judge Michael Fisher, appointed by former President George W. Bush, wrote that Bondi’s maneuver was so broad that it bypassed the confirmation process laid out by the Constitution.
It would allow Habba, or any other special attorney, to “avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely,” Fisher added.
The courts that determined Habba and Halligan were unlawfully appointed ruled that vacancy statutes actually give federal judges in New Jersey and eastern Virginia the power to select who will lead the U.S. attorney’s offices.
Bondi, however, has undermined the judges’ authority to do so by firing or helping to oust the officials they selected.
Beyond that, Trump officials, including Bondi and senior DOJ appointees, have attempted to circumvent adverse court orders while also publicly attacking judges who rule against the president.
Established trend
Habba and Halligan aren’t even the first Trump loyalists to continue asserting the powers of a U.S. attorney following a disqualification in court.
After a court determined Bill Essayli was illegally serving as acting U.S. attorney for the Central District of California, he declared that the court order changed nothing and that he would continue functioning as a U.S. attorney but under a different title.
Citing his statement, defense attorneys representing two men in California asked a federal judge last month to completely oust Essayli from the top of the Central District of California. They asserted he was unconstitutionally serving as an “inferior officer” without Senate approval.
In addition to Habba, Halligan and Essayli, courts have also determined that Sigal Chattah had been unlawfully serving as acting U.S. attorney for the District of Nevada.
A federal judge in September effectively barred her from prosecuting cases for the Nevada U.S. attorney’s office but later stayed his ruling. A Ninth Circuit Court of Appeals panel is currently considering a challenge to Chattah’s appointment and could choose to disqualify her as well.
A federal court could next determine that John Sarcone, Trump’s acting U.S. attorney in the northern district of New York, has also been serving unlawfully.
A judge is set to hear oral arguments Thursday on whether two subpoenas Sarcone attempted to issue against Letitia James’ office are invalid because of the way he was appointed to his temporary position.