Alina Habba cares deeply about the rule of law. She just cares about her career more.
Yesterday, the New York Times ran a three-byline piece detailing the chaos in New Jersey thanks to President Trump’s insistence that his personal lawyer serve as the top prosecutor in the Garden State. The shenanigans have been extensive, but briefly …
In March, Trump installed Matthew Giordano, an experienced prosecutor and campaign donor, as US Attorney for the District of New Jersey. Three weeks later, he shoved Giordano aside, mumbling that he was honoring him with an appointment as ambassador to Namibia. Instead Trump installed his personal lawyer Alina Habba, a loyalist with zero prosecutorial experience. Trump nominated Habba for a full term, but the Senate never took up her appointment — and indeed she appears never to have even bothered to fill out the paperwork. On the eve of (what we all assumed was) the expiration of her term, federal judges in New Jersey exercised their statutory right to appoint someone to the vacant office, tapping Habba’s deputy Desiree Grace. This so enraged Attorney General Pam Bondi that she attempted to jujitsu her protégé back into place by firing Grace, appointing Habba as her own deputy and then allowing her to succeed herself in office. For good measure, Bondi appointed Habba as a special counsel, too.
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Multiple criminal defendants sued, alleging that Habba was not legally serving as acting US Attorney, and thus her actions were all ultra vires. And on August 21, Judge Matthew Brann, a Pennsylvania judge sitting by special designation over the New Jersey case, agreed. Indeed, he found that Bondi’s appointment clock started with Giordano, not Habba, and thus her actions for much of July were unauthorized.
Knowing that the administration would appeal, which it did, the judge stayed his order pending review by the Third Circuit. And so Habba remains in office, but in a liminal purgatory where no one knows if she was legally appointed.
Welcome to hot mess summer!
As detailed in the Times, “courts are bracing for the possibility that any proceedings Ms. Habba has touched, or those involving prosecutors she supervises, could be challenged by defense lawyers.” Cases are being stayed and trials postponed. Defendants remain inside or outside of jail indefinitely. The system has effectively ground to a halt.
Does Habba feel a twinge of guilt at occasioning paralysis across an entire state’s criminal justice system?
Ms. Habba could reduce the risk to current and future cases by recusing herself until the appeals court makes a decision, but has thus far declined to do so.
Let’s go with NO. She will make New Jersey great again, if she has to let hundreds of criminal cases die for violating the speedy trial requirement to do it. That’s on the Sixth Amendment, not her! Or probably it’s on those dastardly judges, for failing to recognize her authority as Trump’s own anointed one.
It’s not clear why the administration is digging in so aggressively on this issue. Even under the DOJ’s cockeyed interpretation of the Federal Vacancies Reform Act, Habba would be limited to 210 days in office , not a full term. But perhaps the DOJ views Habba as a test case, since it has at least a dozen acting US Attorneys who are staring down the end of their 120-day appointments with no possibility of Senate confirmation or renomination by the district judges. They’ve also tried a similar I’m my own first assistant! maneuver in the Northern District of New York.
Tapping out on Habba risks conceding that none of the hacks they’ve loosed on prosecutors’ offices are legit. And so New Jersey’s limbo looks likely to drag on into fall. Because nothing says “tough on crime” like making sure that you can’t fight it at all.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.