Judge says ex-Trump lawyer has served as US attorney without legal authority

WASHINGTON – A federal judge on Aug 21 ruled that Ms Alina Habba had been serving as New Jersey’s US attorney without legal authority for more than a month, thrusting the state’s already paralysed federal court system deeper into disarray and potentially placing limits on the President’s power to choose his own top federal prosecutors.

“Faced with the question of whether Ms Habba is lawfully performing the functions and duties of the office of the United States attorney for the District of New Jersey, I conclude that she is not,” wrote Judge Matthew W. Brann of the Middle District of Pennsylvania.

“Because she is not currently qualified to exercise the functions and duties of the office in an acting capacity,” he added, “she must be disqualified from participating in any ongoing cases.”

But the judge delayed the practical effect of his own decision, including an order disqualifying Ms Habba from participating in ongoing cases. The pause will allow the government to fight on Ms Habba’s behalf in a federal appeals court.

Still, the ruling was a remarkable rebuke to a Justice Department that has undertaken extraordinary measures to keep its preferred US attorneys in their jobs.

Ms Pam Bondi, the US attorney-general, vowed to appeal the judge’s decision.

Ms Habba “is doing incredible work in New Jersey”, she wrote in a social media post on the evening of Aug 21, “and we will protect her position from activist judicial attacks”.

Ms Habba, who previously served as President Donald Trump’s personal lawyer, was appointed in March to a 120-day term as

interim US attorney.

Trump nominated her to take on the role permanently, but New Jersey’s senators indicated they would block her and in July a panel of federal judges declined to extend her tenure.

Instead, the judges tapped a veteran prosecutor, Ms Desiree L. Grace, to lead the office.

In response, Ms Bondi publicly disparaged the judges, fired Ms Grace and, in a complicated series of legal maneuvers, elevated Ms Habba to the role of acting US attorney.

Two separate legal motions were quickly filed challenging the legality of Ms Habba’s appointment, and confusion has since gripped much of the state’s federal court system.

For weeks, the questions have left the state’s district court system at a standstill, delaying hearings, plea agreements, grand jury proceedings and at least one trial.

The moves used to keep Ms Habba in charge of the New Jersey office after her interim tenure ran out have been replicated by the Justice Department in several other US attorney’s offices.

Judge Brann’s ruling may encourage challenges to the legal authority of those prosecutors, too.

“The Habba case might be the most visible example of this, but the district court’s decision here, if affirmed, would prevent the Trump administration from similar machinations in the rest of the country as well,” said Professor Stephen I. Vladeck, a Georgetown University law professor.

Neither Ms Habba nor a Justice Department spokesperson responded to requests for comment.

Mr Gerald Krovatin and Mr Abbe D. Lowell, the lawyers who challenged Ms Habba’s authority, said in a joint statement that they appreciated the thoroughness of the court’s opinion.

“Prosecutors wield enormous power, and with that comes the responsibility to ensure they are qualified and properly appointed,” they said, adding: “This administration cannot circumvent the congressionally mandated process for confirming US attorney appointments.”

Judge Brann noted last week during a hearing on the matter that any decision he made could be expected to be reevaluated by the Court of Appeals.

But he also indicated that swift action was urgently needed in order to return the state’s federal court system to “at least some level of normality”.

Ms Habba, 41, has represented Mr Trump in several civil cases and served as a campaign spokesperson.

But she had no experience in criminal law before the President said on social media in late March that he had appointed her as New Jersey’s interim US attorney “effective immediately”.

Days later, she told a podcaster that she hoped to use her job in the traditionally nonpartisan office to help Republicans “turn New Jersey red”.

Within months, her office had brought charges against two prominent New Jersey Democrats, Mayor Ras J. Baraka of Newark and Representative LaMonica McIver of the 10th Congressional District, stemming from a confrontation outside a migrant detention centre.

She quickly dropped the trespassing charge against Mr Baraka, eliciting a harsh rebuke from a judge for what he called a “hasty arrest”. (Mr Baraka is now suing Ms Habba for malicious prosecution.)

Lawyers for Ms McIver, who is charged with assault, have said that the government engaged in “vindictive prosecution” that smacks of disparate treatment, particularly in light of the President’s leniency towards the Jan 6 Capitol rioters.

Her tenure has coincided with a collapse of morale within the historically prestigious US attorney’s office, which plummeted further after questions about Ms Habba’s authority began to stall cases.

The office’s leadership has also been depleted. On Aug 21, another of its leaders, Ms Caroline Sadlowski, announced that she would leave at the end of this week, according to two people with knowledge of the matter. Ms Sadlowski did not immediately respond to a request for comment.

During last week’s oral argument, Mr Mark E. Coyne, the head of appeals at Ms Habba’s office, acknowledged that few proceedings, other than preliminary actions by magistrate judges, were being held.

Certain upcoming trials, he said, “likely will be adjourned”.

In the court appearances that have taken place, prosecutors have begun to say that they are appearing for the United States on behalf of the deputy attorney-general as well as on behalf of Ms Habba, making plain the uncertainty of her authority.

The government has so far refused the judge’s suggestion that Ms Habba recuse herself to eliminate confusion and to ensure that the courts function efficiently while the legality of the appointment is debated.

“There’s sort of a dignity component to this, as well,” Mr Coyne told Mr Brann last week. “And by that I mean that the executive branch has made very clear whom they wish to be in charge of my office.”

But Judge Brann said that the Justice Department had made several legal mistakes as it sought to keep Ms Habba in the role.

Ms Habba was not the first interim US attorney installed by the department in New Jersey in 2025. She was preceded for about three weeks by another interim US attorney, Mr John Giordano.

The administration believed that Ms Habba’s late March appointment meant that her tenure would last until late July.

But Judge Brann found otherwise, saying that a new 120-day term did not start when Ms Habba replaced Mr Giordano as interim US attorney. Instead, she continued Mr Giordano’s 120-day term, which expired on July 1.

That date, the judge said, marked the beginning of Ms Habba’s unlawful occupation of the office. He added that there were other reasons for her illegitimacy.

The Trump administration believed that Ms Habba’s tenure would expire at midnight July 25. Accordingly, several days before that, Justice Department officials fired Ms Grace, Ms Habba resigned as interim US attorney and the President withdrew her nomination for the permanent role.

Ms Bondi then appointed Ms Habba as first assistant in Ms Grace’s place, arguing that the move had simultaneously elevated Ms Habba to the position of acting US attorney, according to a federal law called the Federal Vacancies Reform Act.

To further ensure Ms Habba’s authority, Ms Bondi also appointed her as a special attorney charged with oversight of the district of New Jersey.

But Judge Brann said that there were several reasons Ms Habba had not automatically become acting US attorney under federal law, including that she was not first assistant when the US attorney seat became vacant, as the law required.

He also said that the special attorney designation did not pass muster, in part because the duties of special attorney as defined by Ms Bondi were effectively identical to those of a US attorney.

It is not clear that a higher court will agree with Judge Brann, assuming the government appeals.

Professor Anne Joseph O’Connell, a law professor at Stanford University who has written about temporary federal appointments, said the ability to install acting leaders at federal agencies was vital, particularly when the Senate is often stymied by politics.

“Modern agencies run on delegation in the face of a broken appointments process,” she said.

“If upheld on appeal, this ruling would upend common practice of acting officials under Democratic and Republican administrations,” she added.

Mr Henry C. Whitaker, a lawyer representing the Justice Department, stressed during the hearing last week that federal law should be interpreted to give the executive branch “substantial authority to decide who is executing the criminal laws of the United States”.

The Supreme Court, he argued, has made clear that that was “at the core of the executive power”.

“To me, that is a feature of the statute, not a bug – that the executive branch has substantial authority over these officials who are exercising that core executive power,” Mr Whitaker told the judge.

Judge Brann was a member of the conservative Federalist Society and active in Republican Party politics before he was nominated to his post by former president Barack Obama. He joined the federal bench in 2013 and has been the Middle District of Pennsylvania’s chief judge since 2021.

In 2020, after Mr Trump lost the presidential election, Judge Brann dismissed a lawsuit by the Trump campaign that had claimed there were widespread improprieties with mail-in ballots in Pennsylvania.

In a scathing decision, the judge said the campaign’s argument had been “haphazardly stitched together”, likening it to Frankenstein’s monster.

Prof Vladeck said that while the Aug 21 ruling would not be the last word on the matter, it was a reaffirmation of a principle that “the President can’t just pick who he wants, when he wants for whatever reason he wants”.

“Whether that’s actually going to prevent the President from carrying out his policy goals is less obvious,” he added. NYTIMES