When President Donald Trump chose former Fox News host Jeanine Pirro to be interim U.S. Attorney for the District of Columbia last month, it represented a stretching – perhaps a breaking – of the laws and norms that had long governed interim U.S. Attorney appointments.
Pirro’s predecessor in the role, Ed Martin, had already held the job for 114 days before Trump pulled his nomination in the face of opposition from some Senate Republicans, pushing right up against the 120-day limit for interim U.S. Attorneys appointed directly by the president (via the Attorney General). By installing Pirro in his place, Trump essentially declared that he could reset the 120-day clock with each new appointment – contrary to many prior interpretations of federal statute that held that presidents could get 120 days total for interim U.S. Attorney appointments before either the Senate or the federal judiciary stepped in.
So far, nothing has happened to stop Pirro from continuing on in her new role, and 137 days have passed since Martin first took office. But New Jersey is now hurtling towards a similar deadline, raising the possibility of a showdown over interim U.S. Attorney Alina Habba, who has courted major controversy over her attempts to prosecute several Democratic elected officials.
Trump’s first pick for U.S. Attorney in New Jersey, State Sen. Doug Steinhardt (R-Lopatcong), turned down an interim appointment in February. The Trump administration then landed on John Giordano, a relatively little-known attorney from Burlington County, and quietly swore him in on March 3.
But Giordano wasn’t long for the job, either. On March 24, Trump announced that he would instead install Habba, his former personal lawyer and a lightning rod for criticism during his criminal trials, as interim U.S. Attorney “effective immediately.”
That sets up two competing timelines for how long Habba is allowed to stay in the job. If the 120-day clock (which is enshrined into federal law) began when Giordano took office, Habba’s term would theoretically end on July 1; if Habba gets 120 days all to herself, however, she’ll have until July 22.
But if the latter interpretation of the 120-day limit prevails, then that gives Trump an extraordinary amount of leeway to do what he likes with U.S. Attorney offices with no input from the Senate or the judiciary. Theoretically, it would mean Trump could continue appointing new interim U.S. Attorneys indefinitely, letting them run out their 120-day stay and then choosing someone new who similarly aligns with his policy and political goals.
Habba could also stay in the post longer through two other methods: the state’s 17 District Court judges could appoint her on a permanent basis, or the Senate could confirm her. Most of New Jersey’s federal judges were nominated by Democrats, though, and seem unlikely to approve of Habba’s tactics while in office; the Senate, meanwhile, typically defers to home-state senators on U.S. Attorney nominations, and Senators Cory Booker and Andy Kim have given no indication they’d be remotely interested in supporting Habba.
In fact, the Trump administration hasn’t even deigned to nominate Habba to a full term; a Trump spokesperson did not respond to a question about whether the president intended to do so, or what will happen to the office instead if he doesn’t. (Booker said last month that he’s been told by the Trump administration that Habba will not be nominated for a full term, though Trump’s press secretary denied that the administration said any such thing.)
“I don’t think anybody knows exactly what’s going to happen next – including Alina Habba, including the Trump administration,” Kim told the New Jersey Globe. “I’ve had multiple conversations with the White House Counsel about a number of different appointments, more on the judicial side, and they seem to be uncertain about their overarching approach.”
(There is also another option Trump could pursue, as laid out by the New York Times: appoint an acting U.S. Attorney – a title district from interim U.S. Attorney – for 210 days under the Vacancies Reform Act. That person, however, would either have to already hold a Senate-confirmed job or have held a top position in the Justice Department for at least 90 days before the role became vacant, significantly constraining the president’s choices.)
The timing dispute is notable in part as one of many examples of the Trump administration skirting longstanding laws and norms – but it’s also important because of who Habba is specifically, and what her impact could be in New Jersey.
Known for being an attack dog when defending Trump in court, Habba quickly made it clear that she would approach the U.S. Attorney’s office with a far more political bent than most prior officeholders. She attacked Booker and Gov. Phil Murphy by name the day she was chosen for the role, and she later said in an interview that she hoped to use her office to help “turn New Jersey red.”
Last month, Habba charged Newark Mayor Ras Baraka with trespassing after a kerfuffle at Newark’s Delaney Hall detention center – then subsequently dropped the charges, earning her office a scathing rebuke from a federal magistrate judge (and a lawsuit from Baraka). Habba is now pursuing separate charges against Rep. LaMonica McIver (D-Newark), whom she alleges assaulted immigration officers at Delaney Hall; McIver has strongly denied the charges, which Democrats across the country have said are politically motivated.
The timing of when Habba leaves, and who succeeds her, will thus be hugely important to the McIver case. Habba likely won’t be able to see the case all the way through during her 120-day window – but does she stay there longer? Does the Trump administration move to replace her with someone of the same ideological bent?
None of this is typically how the process for choosing U.S. Attorneys works. Historically, the job – there are 93 of them spread across the country – has been a relatively nonpartisan one, and presidents work with home-state senators to find a nominee who is acceptable to both sides.
It’s also usually common practice to allow the second-in-command from a prior administration’s U.S. Attorney’s Office to lead the office on an acting basis while the new president’s nominee works their way through the Senate.
Rachel Honig, for example, served as acting U.S. Attorney for nearly the entire first year of President Joe Biden’s administration after previously serving as first assistant U.S. Attorney under Trump-era U.S. Attorney Craig Carpenito. Honig finally left the job in December 2021 after Biden’s pick, Phillip Sellinger, was confirmed by the Senate (on a unanimous voice vote).
And during his first term, Trump let first assistant U.S. Attorney William Fitzpatrick, an apolitical career prosecutor, hold the top job for nearly a year before naming Carpenito as interim U.S. Attorney in early 2018. (Carpenito struggled to get through the Senate thanks to opposition from Booker and then-Senator Bob Menendez, but he was uncontroversial enough that the state’s District Court judges appointed him on a permanent basis when his 120 days were up; Booker later said he was wrong to oppose Carpenito’s nomination.)
That wasn’t the case this year, however. After Sellinger resigned a few weeks before Trump took office – as is customary when a new president arrives – first Assistant U.S. Attorney Vikas Khanna was elevated to the top job on an acting basis, but he only remained there for a short while before he was sent packing by Giordano.
With the potential July 1 and July 22 deadlines both approaching, it’s unclear what will happen if Habba overstays her tenure or if Trump attempts to appoint yet another interim U.S. Attorney in her place.
New Jersey’s federal judges could step in and make their own determination about what needs to happen to the office, perhaps choosing someone new to fill it, but they may be reluctant to aggressively combat the Trump administration amid escalating GOP rhetoric against “rogue judges.” It’s possible that someone under prosecution by the office after the 120-day mark could sue, precipitating a legal fight over whether cases handled by an interim prosecutor whose term has expired can continue.
In Washington D.C., notably, nothing has happened – at least publicly – since Pirro took office on May 14. Senator Dick Durbin (D-Illinois), the top Democrat on the Judiciary Committee, said last month that Pirro’s appointment was an “untested and unprecedented use of the interim appointment authority” and that Judiciary Committee Democrats would be “looking into this.”
Asked whether he and other Democrats had formulated plans for what to do if Habba and other controversial interim U.S. Attorneys overstay their terms, Kim said more generally that he and Senate Democrats are working to find ways to combat Trump’s judicial appointments.
“What we know for certain is that this is a president that demands loyalty and fealty from his appointments,” Kim said. “Regardless of what happens – whether it’s Alina Habba that continues on, or somebody else – we know it’s going to be somebody that is going to be pledging absolute loyalty to this president.”
“All of Trump’s nominees are going to be of that same ilk,” he continued. “And so whether it’s Alina Habba or someone else nominated for the more permanent position, we’re going to face the same problems.”
