PHILADELPHIA (AP) — Federal appeals court judges on Monday questioned the Trump administration's maneuvers to keep the president's former lawyer, Alina Habba, in place as New Jersey's top federal prosecutor.
The three-judge panel of the 3rd U.S. Circuit Court of Appeals sitting in Philadelphia didn't immediately issue a ruling after the arguments, which were attended in person by Habba.
The hearing is the most recent development in President Donald
Trump's administration's effort to keep his preferred candidate in the role of U.S. attorney for New Jersey, a powerful post that oversees criminal and civil law enforcement.
The questioning started early, when Judge D. Brooks Smith asked Henry Whitaker, the attorney arguing for the government, what role Habba was filling because she was listed as a “special attorney” as well as acting U.S. attorney.
“Would you concede that the sequence of events here — and for me, they’re unusual — would you concede there are serious constitutional implications to your theory here?” Smith asked, adding that the government’s theory was a “complete circumvention of the appointments clause."
Whitaker defended Attorney General Pam Bondi's appointment of Habba to both positions as within her authority and authorized by law.
Asked again later if he could name another similar circumstance with a U.S. attorney, Whitaker said he could not, but added that Habba's appointment was analogous to what the executive branch had done in other cases.
“We colored inside the lines here,” Whitaker said.
"Habba said after the hearing in a statement posted to X that she was fighting on behalf of other candidates to be federal prosecutors who have been denied a chance for a Senate hearing.
"When millions of Americans voted for a change in leadership in November, they voted for a new direction. That choice should not be undermined by political obstruction in Congress or by criminal defendants," she said.
In addition to Smith, who was appointed by Republican President George W. Bush, judges Luis Felipe Restrepo, appointed by Democratic President Barack Obama, and D. Michael Fisher, also appointed by Bush, heard the case.
The hearing comes after a lower court judge said in August her appointment was done with a “novel series of legal and personnel moves” and that she was not lawfully serving as U.S attorney for New Jersey.
The judge's order said that her actions since July could be declared void but put his order on hold so the U.S. Justice Department could appeal.
Habba is validly serving in the role under a federal statute that permits the first assistant attorney, a post she was appointed to by the Trump administration, the government said in court briefs ahead of Monday's hearing.
A similar dynamic is playing out in Nevada, where a federal judge disqualified the administration's pick to be U.S. attorney there.
In the Habba case, U.S. District Judge Matthew Brann's decision came after several people charged with federal crimes in New Jersey challenged the legality of Habba’s tenure. They sought to block the charges, arguing she didn’t have the authority to prosecute their cases after her 120-day term as interim U.S. attorney expired.
Abbe Lowell, the attorney arguing for the defendants challenging her appointment, said the government employed a “chimera” of seven different statutes to support her tenure, alluding to the mythical creature made up of various animals.
Habba was Trump's attorney in criminal and civil proceedings before he was elected to a second term. She served as a White House adviser briefly before Trump named her as a federal prosecutor in March.
Shortly after her appointment, she said in an interview she hoped to help “turn New Jersey red,” a rare overt political expression from a prosecutor, and said she planned to investigate the state’s Democratic governor and attorney general.
She then brought a trespassing charge, eventually dropped, against Newark Mayor Ras Baraka stemming from his visit to a federal immigration detention center.
Habba later charged Democratic U.S. Rep. LaMonica McIver with assault stemming from the same incident, a rare federal criminal case against a sitting member of Congress other than for corruption. McIver denied the charges and pleaded not guilty. The case is pending.
Questions about whether Habba would continue in the job arose in July when her temporary appointment was ending and it became clear New Jersey’s two Democratic U.S. senators, Cory Booker and Andy Kim, would not back her appointment. Habba said Monday she hadn't had a conversation with either senator despite reaching out.
"That is not how the process should work in a functioning democracy," she said.
Messages seeking comment were sent to Kim and Booker.
Earlier this year as her appointment was expiring, federal judges in New Jersey exercised their power under the law to replace Habba with a career prosecutor who had served as her second-in-command.
Bondi then fired the prosecutor installed by the judges and renamed Habba as acting U.S. attorney. The Justice Department said the judges acted prematurely and said Trump had the authority to appoint his preferred candidate to enforce federal laws in the state.
Brann’s ruling said the president’s appointments are still subject to the time limits and power-sharing rules laid out in federal law.
