Have you ever watched someone try to thread a needle while wearing boxing gloves? That’s pretty much what the last few months have felt like watching the Department of Justice scramble to keep certain people in powerful positions. And on Monday, the Third Circuit Court of Appeals basically yanked the thread away.
In a unanimous decision that didn’t bother mincing words, a three-judge panel ruled that Alina Habba – yes, the same attorney who gained fame defending a former president in multiple high-profile cases – has been serving without lawful authority as the acting United States Attorney for the District of New Jersey.
It’s one of those rulings that feels both technical and seismic at the same time. Technical because it dives deep into appointment statutes and vacancy laws. Seismic because it directly challenges how the current administration has been filling some of its most sensitive law enforcement positions.
The Core of the Controversy
Let’s start with what actually happened, because the timeline reads like a legal thriller someone forgot to edit for plausibility.
Back in early summer, Habba was tapped to temporarily lead the U.S. Attorney’s Office in New Jersey. Everyone understood this was an interim gig – federal law allows someone to serve in an acting capacity for a limited period, typically 120 days, unless certain conditions are met.
When that clock was about to run out, the federal judges in New Jersey did something unusual: they declined to extend her tenure and instead voted to install her deputy as the acting U.S. Attorney. Perfectly normal procedure, right? Not quite.
The Creative Workaround That Backfired
What happened next is where things get interesting – and where the appeals court saw red flags waving like it was the Fourth of July.
The administration executed what can only be described as a multi-step appointment shuffle. First, the nomination was withdrawn. Then Habba resigned as interim U.S. Attorney. Then the Attorney General appointed her as a “special attorney” and simultaneously made her first assistant U.S. Attorney. And because the top job was now technically vacant, boom – she automatically became acting U.S. Attorney under the Federal Vacancies Reform Act.
It was, on paper, a clever bit of legal gymnastics. In practice, the Third Circuit just called it what it was: an attempt to permanently sidestep Senate confirmation.
“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely.”
Judge Michael Fisher, writing for the Third Circuit panel
That quote should probably be framed somewhere in the Justice Department, because it cuts straight to the heart of constitutional governance.
Why This Matters Beyond One Appointment
Look, I’ve covered legal appointments for years, and I can tell you this isn’t just about one person or one district. This ruling has implications that ripple far beyond New Jersey’s borders.
The United States Attorney positions aren’t junior roles. These are the people who decide which federal cases get prosecuted, which companies get investigated, which public corruption cases move forward. They wield enormous power with relatively little day-to-day oversight.
And the Constitution – yes, that document everyone claims to love until it gets inconvenient – is pretty clear about how people get these jobs. The president nominates, the Senate confirms. There are limited exceptions for temporary service, but those exceptions have guardrails for a reason.
- The 120-day limit on acting service
- The ability of district judges to appoint interim prosecutors
- The requirement that acting officials meet specific qualifications
- The overarching principle that significant offices require Senate confirmation
The Third Circuit essentially said: you don’t get to treat these guardrails like suggestions.
The Lower Court Decision That Started It All
Credit where it’s due – this whole chain of events started with a district judge who wasn’t afraid to call out what he saw as improper.
When the initial 120-day period expired and the local judges chose Habba’s deputy instead, the administration pushed back hard. They removed the deputy and tried to reinstall Habba through different statutory authority. The district judge looked at this maneuver and essentially said: nice try, but no.
He disqualified her from ongoing cases and made clear she’d been serving without authority since July. The appeals court didn’t just affirm that decision – they amplified it, warning that accepting the government’s argument would render entire sections of federal law meaningless.
This Isn’t Happening in a Vacuum
Perhaps the most interesting aspect – and the one getting less attention than it deserves – is that this isn’t an isolated incident.
Another federal judge recently dismissed criminal charges in a high-profile case because the prosecutor bringing those charges was serving under similarly questionable authority. When interim appointments start affecting actual criminal prosecutions, we’ve moved from theoretical concerns to very real consequences.
In my experience covering these kinds of disputes, courts tend to give the executive branch considerable leeway in personnel decisions. The fact that multiple judges, including a unanimous appellate panel, have now pushed back so forcefully tells you something about how far they believe the administration went here.
Where Does This Go From Here?
The administration has options, of course. They can ask the full Third Circuit to rehear the case, though en banc review is rare and granted only in exceptional circumstances. They can petition the Supreme Court, which would almost certainly want to resolve conflicting interpretations of the Vacancies Reform Act if other circuits start weighing in differently.
Or they can do what previous administrations have done when faced with similar rulings: follow the law as written and submit nominations for Senate confirmation.
That last option probably feels like surrendering to some in the current DOJ, but it’s worth remembering that Senate confirmation exists for a reason. It’s not just a hurdle – it’s a feature of our system, designed to ensure that the most powerful law enforcement positions in the country aren’t filled indefinitely by people who never faced public scrutiny.
The Bigger Picture on Executive Power
Stepping back for a moment, this case touches on something that’s been building for years: the gradual erosion of norms around temporary appointments.
Every administration pushes the boundaries a bit. They all have acting officials serving longer than anyone intended when these laws were written. But there’s a difference between working within the gray areas of complex statutes and deliberately constructing elaborate workarounds to avoid constitutional requirements entirely.
The Third Circuit drew that line clearly on Monday. Whether other courts will follow suit – and whether the Supreme Court ultimately gets involved – will tell us a lot about how much flexibility the judiciary is willing to give modern presidents in staffing their administrations.
For now, though, one thing is certain: Alina Habba’s tenure as acting U.S. Attorney for New Jersey just hit a very hard, very definitive wall. And the echoes from that impact are going to be felt in Justice Department offices across the country.
Sometimes the most important legal rulings aren’t the ones that make the front page with dramatic revelations. Sometimes they’re the ones that quietly but firmly remind everyone – including the people running the government – that there are rules even they have to follow.
Monday’s decision was one of those moments.
