Appeals Court Questions DOJ Lawyer Alina Habba’s Role in New Jersey

A federal appeals court is currently examining the appointment of Alina Habba as the U.S. attorney for New Jersey. Questions were raised by a panel of judges regarding the legitimacy of her appointment, which was defended by Department of Justice (DOJ) attorney Henry Whitaker.

Key Issues Surrounding Alina Habba’s Appointment

Whitaker argued that it is not unusual for officials to remain in their positions beyond the typical time limits. He pointed out a similar situation involving a Biden administration attorney who operated without Senate confirmation. “When the attorney general designates someone, that counts as a distinct kind of service,” Whitaker stated.

Legal Challenges and Background

The DOJ is appealing a ruling from a lower court that deemed Habba’s appointment unlawful. This ruling indicated that the administration violated the Federal Vacancies Reform Act, which regulates how Senate-confirmed positions should be filled. The decision has triggered similar challenges in other states, such as Nevada, where an appointed U.S. attorney was also found to be serving improperly.

• Judges involved: Three judges from the U.S. Court of Appeals for the Third Circuit heard the case.
• Appointments: Two judges were appointed by Republican presidents, Ronald Reagan and George W. Bush, while one was appointed by Democrat Barack Obama.

Habba initially served as an interim U.S. attorney until her term expired after 120 days. Following this, she was appointed as a special attorney, then designated as the first assistant U.S. attorney before receiving delegated authority as the U.S. attorney, leading to allegations of her unlawful serving in the role.

Arguments from the DOJ and the Defendants

The DOJ maintains that Habba can fulfill her role through authority granted by the attorney general. Whitaker emphasized the various methods available for filling governmental vacancies, asserting that they are operating within legal boundaries. He also stated that Habba may retain her position until February when a term of 200 days concludes, though he acknowledged the ambiguity around delegation authority.

Conversely, attorney Abbe Lowell, representing the defendants, accused the DOJ of creating a makeshift approach to maintain Habba in her role. He argued that although delegation is permissible, it should apply only to specific instances, not the full array of responsibilities held by a U.S. attorney.

Panel’s Reaction and Future Implications

Judges expressed skepticism regarding the commonality of the process used to reappoint Habba. One judge questioned Whitaker about prior instances of such intricate maneuvers in appointing a U.S. attorney. Whitaker did not provide an example, framing the situation as a unique case in its intricacies.

After the hearing, Habba attributed the situation to Congressional obstruction. Citing the blockage of over a dozen U.S. attorney nominees, she argued that the President’s authority to appoint suitable candidates should be recognized. “That choice should not be undermined by political obstruction in Congress or by criminal defendants,” she expressed on social media.

The ongoing developments in this case could establish precedents regarding the appointment and authority of U.S. attorneys moving forward.