Habba asks Third Circuit to reconsider U.S. Attorney disqualification

A month after her dramatic disqualification and subsequent resignation from the U.S. Attorney’s office in New Jersey, Alina Habba filed a petition yesterday for the court to rehear her case.

In December, a three-judge panel on the Third Circuit Court of Appeals ruled that the methods President Donald Trump used to keep Habba in office were unlawful, and thus her appointment as acting U.S. Attorney was invalid. Habba resigned a week later but said she was still interested in returning to the office if the courts would allow it, and the Justice Department is now asking the entire Third Circuit to reconsider the case en banc.

“The panel’s interpretation of the [Federal Vacancies Reform Act] would hobble Presidential transitions and has been routinely violated by the last four administrations without any court holding the practice unlawful,” reads the motion, which was submitted by Attorney General Pam Bondi and other top Justice Department officials. “Rehearing en banc is warranted.”

Habba, a former attorney on Trump’s personal legal team, served for several months last year as interim U.S. Attorney, a designation that can be made unilaterally without Senate or judicial approval. When the 120-day window on the interim appointment ran out without Senate action, however, the state’s District Court judges voted not to retain Habba; Bondi and Trump then took an extraordinary series of actions to ensure Habba could stay on, cobbling together a number of different federal statutes to do so.

Several defendants being prosecuted by Habba’s office cried foul, and District Judge Matthew Brann ruled in August that Habba’s authority was illegitimately derived in several ways. Upon appeal, a Third Circuit panel, consisting of two George W. Bush appointees and one Barack Obama appointee, unanimously upheld his ruling in December.

Habba resigned the next week, saying that she made the decision “to protect the stability and integrity of the office which I love.” Both she and Bondi, however, made it clear that they disagreed with the judges’ opinion, and left the possibility of further legal action open.

“The Department of Justice will seek further review of this decision, and we are confident it will be reversed,” Bondi said in a December statement. “Alina intends to return to lead the U.S. Attorney’s Office for the District of New Jersey if this occurs.”

That promise materialized in yesterday’s rehearing motion, though it’s far from guaranteed that the full Third Circuit will be any more sympathetic to the Trump administration’s arguments than other judges have been. The circuit is nearly evenly split between Republican and Democratic appointees, and in other similar cases around the country revolving around U.S. Attorney appointments, judges of all stripes have consistently ruled against the administration.

In the meantime, the Justice Department has designated three lower-level officials to jointly run the U.S. Attorney’s office in New Jersey, with each having jurisdiction over different divisions. That unusual limbo, though, is now subject to legal challenges, which the department says has “created further uncertainty” and provides another reason for rehearing Habba’s case.

“Several defendants are now challenging the current supervisory structure in the U.S. Attorney’s Office as a violation of [the FVRA] on the grounds that allocating among three officials the delegable authority of a U.S. Attorney still results in a ‘de facto’ U.S. Attorney,” yesterday’s petition states. “Although meritless, those challenges further illustrate that the panel’s atextual interpretation of [the FVRA] warrants reconsideration.”