A federal appeals court on Monday found Alina Habba, President Donald Trump’s former personal attorney, is serving unlawfully as US attorney for New Jersey, dealing a legal blow to the Trump administration that could have far-reaching consequences on other appointments across the country.
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A panel of three appellate judges with 3rd US Circuit Court of Appeals upheld a lower court’s finding that the administration violated the law when it used of a series of maneuvers to install Habba in the position after failing to win Senate support.
“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely,” the unanimous three judge panel wrote. “This view is so broad that it bypasses the constitutional (appointment and Senate confirmation) process entirely.”
The case is the first challenge of the Trump administration’s process for selecting US attorneys to be heard by a federal appeals court. While the 3rd Circuit’s decisions cover New Jersey, Pennsylvania, Delaware and the US Virgin Islands, appeals court cases are often given deference in other parts of the country especially when they are dealing with novel legal issues. The case could end up before the US Supreme Court.
District court judges recently found the US attorneys serving the central district of California and Nevada are also serving unlawfully. Those cases are being appealed. Trump’s pick for the Northern District of New York is pending as last week a district court threw out two indictments after finding Lindsey Halligan, the US attorney for the Eastern District of Virginia, was serving unlawfully.
In the districts where US attorneys were found to be serving unlawfully criminal cases have mostly continued although some judges have postponed trials or sentencings. To date, in each of the decided cases the judges did not dismiss indictments of the defendants who brought – and won – the challenges because they found other prosecutors were involved.
Trump’s lawyers appealed the ruling by Judge Matthew Brann, saying he erred when he found that Habba is not serving legally because she was not the first assistant US attorney at the time the US attorney vacancy arose. They also argued Habba should be able to act as US attorney on authority delegated to her as a special attorney from Attorney General Pam Bondi.
Trump named Habba interim US attorney for New Jersey earlier this year. As the 120 day clock for interim appointments was set to expire, and was it clear the district court judges were not going to name her US attorney Habba resigned. Bondi named Habba special attorney and designated her as the first assistant US attorney. She then delegated to Habba the authority of the US attorney.
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