An appellate court ruled Monday that Alina Habba is unlawfully serving as New Jersey’s top federal prosecutor—marking a setback for President Donald Trump as he works to keep his preferred nominees leading U.S. attorney offices in Democrat-run states.
The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s decision to disqualify Habba, a loyal Trump ally who previously served as the president’s personal attorney.
The Trump administration can still request a rehearing before the full Third Circuit or appeal directly to the Supreme Court.
A three-judge Third Circuit panel heard arguments in October and questioned a DOJ lawyer over the unusual process by which Trump and Attorney General Pam Bondi reinstated Habba after her initial temporary term expired.
Habba is one of several Trump-aligned nominees who have faced legal challenges from opponents claiming the administration bypassed the Senate and made use of federal vacancy laws in ways they argue were improper. While Habba’s case has advanced the furthest, Lindsey Halligan in Virginia and Bill Essayli in California also face court battles over their temporary appointments.
The panel included two judges appointed by President George W. Bush and one appointed by President Barack Obama.
During arguments, the judges pressed DOJ attorney Henry Whitaker on Bondi’s authority to replace a court-appointed U.S. attorney after Trump removed him. Whitaker defended the administration’s approach, saying it followed the legal paths available.
“In this case, the executive branch admittedly took a series of precise and precisely timed steps not to evade or circumvent those mechanisms but rather to be scrupulously careful to comply with them,” Whitaker said.
One judge suggested the situation raised constitutional concerns, asking: “Would you concede that the sequence of events here, and for me, they’re unusual, would you concede that there are serious constitutional implications to your theory here, the government’s theory, which really is a complete circumvention, it seems, of the appointments clause?”
Veteran D.C. attorney Abbe Lowell—well-known for challenging the Trump administration—represented the defendants who argued Habba’s appointment was invalid.
Those defendants, facing routine federal charges, contend that because Habba was not legally serving as U.S. attorney, she should not be permitted to prosecute their cases.
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