Noticias

As expected, President Donald Trump’s Department of Justice has filed an appeal of a federal judge’s ruling that acting U.S. Attorney Alina Habba was appointed improperly and cannot continue to serve.

The appeal is so expected, in fact, that when he issued his ruling last week, Judge Matthew Brann pre-emptively stayed it pending appellate proceedings. The stay means that Habba will remain in office for now; the timeline for the appeals process, as well as which judges on the Third Circuit Court of Appeals will hear the case, is still to be determined.

The saga of Habba’s turbulent tenure in the U.S. Attorney’s office began in March, when Trump named her as interim U.S. Attorney after she previously served as his counselor and personal attorney. Interim U.S. Attorneys have a built-in time limit of 120 days in office before they either have to be confirmed by the U.S. Senate or affirmed by a vote of their local District Court judges.

Around the time that Habba’s term was set to expire (the precise date is up for debate), New Jersey’s federal judges voted not to retain Habba, instead appointing First Assistant U.S. Attorney Desiree Grace to succeed her. The Trump administration, however, fired Grace right as Habba resigned as interim U.S. Attorney, then appointed Habba to succeed Grace as First Assistant, thus elevating her to the role of acting U.S. Attorney by default.

The bold maneuver, evidently designed to circumvent both the federal judiciary and the Senate (which never moved on Habba’s nomination amid strong opposition from New Jersey’s senators), was challenged in court by two New Jersey defendants who said that Habba could not lawfully prosecute them. In a momentous decision last week, Brann agreed with the defendants, finding several legal flaws in the Trump administration’s strategy.

Most importantly, at least from the perspective of setting precedent for the rest of the country, Brann determined that Habba’s tenure properly ended on July 1 – many weeks before the Trump administration claimed it did – because the three-week period that prior interim U.S. Attorney John Giordano served should be counted towards Habba’s total. Without that safeguard, he wrote, presidents could in theory keep appointing new interim officeholders “for an entire term without seeking the Senate’s advice and consent.”

Top Trump officials had already railed against the “activist judges” who decided not to retain Habba in the first place, and Brann quickly became their new target. Attorney General Pam Bondi said after the ruling came down that the government would “immediately appeal” the decision and “protect [Habba’s] position from activist judicial attacks”; Brann was named to the court by President Barack Obama, but he was also a longtime Republican activist in Pennsylvania and a member of the conservative Federalist Society.

The outcome of the appeal could have nationwide implications for presidential appointments, and may eventually end up before the Supreme Court. It’s no surprise, then, how many major Justice Department figures have been directly involved; today’s one-page filing was signed by Bondi, Habba, Deputy Attorney General Todd Blanche, Counselor to the Attorney General Henry Whitaker, and Assistant U.S. Attorney Mark Coyne, who has taken the lead on writing the government’s filings throughout the case.

The Third Circuit, which encompasses New Jersey, Pennsylvania, and Delaware, is closely divided on ideological lines, with seven Republican appointees, six Democratic appointees, and one vacant seat. Appeals are typically heard by three-judge panels.

In theory, that panel could include Emil Bove, whom the Senate confirmed last month after an extraordinarily fractious process. But that may be less likely given Bove’s personal ties to Habba; both of them served as key members of Trump’s legal team during his time out of office, and Habba personally congratulated Bove when the Senate confirmed him. (Bove also has not yet received his judicial commission, and is not included on the Third Circuit’s list of judges.)

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