Judge says Trump admin’s tripartite U.S. Attorney structure is unlawful

After Alina Habba was barred from continuing to serve as acting U.S. Attorney for the District of New Jersey late last year, the Department of Justice came up with an unusual workaround to replace her: name three different prosecutors as co-leaders of the U.S. Attorney’s office, with each handling different divisions of the office’s work.

Today, after several months of legal proceedings, the same federal judge who originally disqualified Habba ruled that the new arrangement violates the law, too.

“One year into this administration, it is plain that President Trump and his top aides have chafed at the limits on their power set forth by law and the Constitution,” U.S. District Judge Matthew Brann, a Pennsylvania judge who was first assigned to oversee the New Jersey U.S. Attorney dispute last summer, wrote in his 130-page ruling. “To avoid these roadblocks, this administration frequently purports to have discovered enormous grants of executive power hidden in the vagaries and silences of the code.”

Much like he did when ruling against Habba last August, Brann quickly issued a stay of his own opinion pending appeal to the Third Circuit, but he did so with a warning for President Donald Trump’s administration.

“Recognizing the novelty of these legal questions, I believe that a stay of this decision is appropriate to ensure a speedy appeal,” he wrote. “However, my reasoning makes clear that a stay cannot validate an unlawful appointment. If the Government chooses to leave the triumvirate in place, it does so at its own risk.”

That leaves Jordan Fox, Philip Lamparello, and Ari Fontecchio, who were named the office’s de facto leaders in December, in limbo for now. Brann, however, warned that continued attempts by the Trump administration to circumvent the regular process for U.S. Attorney appointments could result in dismissals of pending cases; the suit against the tripartite structure was brought by two New Jersey defendants under prosecution by the office, though Brann declined to immediately dismiss the charges against either.

It remains unknown for now whether the Trump administration will appeal the decision, just as it has not been clear for months what their longer-term plan for the office is. The New Jersey Globe reported last month that the DOJ was pushing for New Jersey’s federal judges to appoint Fox as acting U.S. Attorney, but there’s been little movement on that front since then.

Habba has also not halted her efforts to win reinstatement, making an unsuccessful effort in January to get the Third Circuit Court of Appeals to reconsider her disqualification. The next step would be an appeal to the U.S. Supreme Court, something Habba has not yet undertaken.

Responding to Brann’s opinion on the triumvirate, Habba – who is now a senior advisor to U.S. Attorney General Pam Bondi – called it “another ridiculous ruling” designed to prevent Trump from carrying out the will of the voters who elected him.

“The unconstitutionality of this complete overreach into the Executive Branch, time and time again, will not succeed,” Habba wrote on social media. “They would rather have no U.S. Attorney than safety for the people of NJ. Judges do not fire DOJ officials, AG Pam Bondi and POTUS do – get in line.”

When Habba was first named as interim U.S. Attorney last March, Trump largely followed established appointments procedure. Habba had a 120-day period to serve as interim U.S. Attorney (though the precise timeframe for those 120 days were subject to debate), and the president submitted her nomination to the U.S. Senate for confirmation to a full term.

But after Senators Cory Booker and Andy Kim blocked Habba’s path to Senate confirmation, and after the state’s District Court judges chose her deputy to replace her after her 120-day term ended, the Trump administration entered uncharted territory. The deputy, Desiree Grace, was fired from the Justice Department, and Habba was appointed as First Assistant U.S. Attorney in her place, thus elevating her to her own vacant U.S. Attorney posting by default.

Brann ultimately ruled in August, and a three-judge Third Circuit panel affirmed in December, that the complex appointment process ran afoul of the Federal Vacancies Reform Act and the Constitution’s separation of powers in several ways. In his ruling today, Brann determined that the new “triumvirate” workaround was just as invalid, writing that federal law does not give the Trump administration the power to appoint or delegate the authority of the U.S. Attorney in such a manner.

And as Brann noted, the issue is not one constrained to New Jersey. Other U.S. Attorney’s offices in New York, Nevada, California, Virginia, and New Mexico have been rocked by similar appointment controversies, with judges issuing decisions against Trump appointees that echoed Brann’s original Habba ruling; Brann’s new triumvirate ruling could be a model for future cases against any similar Trump administration workarounds in other districts.

Above all, the sentiment that pervades Brann’s ruling is exasperation: why are Trump and his top deputies so intent on bypassing all established laws and norms regarding appointments, even at the risk that cases will be dismissed and New Jersey’s justice system will descend further into chaos?

“With all these options remaining, why does the fate of thousands of criminal prosecutions in this District potentially rest on the legitimacy of an unprecedented and byzantine leadership structure?” Brann wrote. “The Government tells us: the President doesn’t like that he cannot simply appoint whomever he wants.”

Brann triumvirate ruling