Trump’s Failed US Attorney Push to Haunt Future Administrations

President Donald Trump’s failed bid to keep his former personal lawyer as New Jersey’s top federal prosecutor without Senate confirmation creates an obstacle for future administrations to staff up quickly.

A federal appeals court’s decision disqualifying Alina Habba as acting US attorney for the District of New Jersey limits a legal mechanism that a new president can use to immediately fill key positions at the outset of an administration, before initial nominees win Senate approval, legal observers said.

The US Court of Appeals for the Third Circuit held earlier this month that Habba’s appointment violated the legal requirements to qualify as a “first assistant” who automatically assumes the role of a vacant Senate-confirmed position on an acting basis.

“Bad actions of this administration will hurt government functioning,” said Anne Joseph O’Connell, a Stanford University law professor who’s written extensively on acting government officials.

All modern presidents have relied on acting officials, but Trump turned to them more extensively during his first term than his predecessors, O’Connell found. His use of acting officials for Senate-confirmed positions hasn’t been as broad in his second term, but he’s still pushed the boundaries in ways that will restrict future presidents.

Trump tapped a raft of officials who’ve won Senate confirmation for one position to also handle a second on an acting basis.

For example, Treasury Secretary Scott Bessent is the acting Internal Revenue Service commissioner, Transportation Secretary Sean Duffy is the acting NASA administrator, and US Trade Representative Jamieson Greer is the acting head of the Office of Special Counsel.

Some officials even wear three hats: Secretary of State Marco Rubio also serves as the acting national security advisor and acting chief of the National Archives; and Office of Management and Budget Director Russell Vought also heads the Consumer Financial Protection Bureau and the effectively shuttered USAID on an acting basis.

Using Senate-confirmed officials to lead multiple agencies seems legal, said Nina Mendelson, a University of Michigan law professor who’s studied presidents’ use of acting officials.

“But we have to be concerned whether they have the capacity to do multiple jobs, or whether the work is really being done by somebody who is not Senate confirmed,” she said.

Meanwhile, Trump’s attempts to plug in loyalists as top prosecutors on an acting basis have proven legally problematic. District courts have ruled against the appointments of acting US attorneys in Los Angeles, Nevada, Virginia, and New Jersey.

First Assistant Limits

The Third Circuit handed down the first appeals court ruling on one of Trump’s acting US attorneys earlier this month in its decision disqualifying Habba. She’s since resigned her post.

Attorney General Pam Bondi named Habba first assistant to the US attorney as part of an effort to keep her in office after her term as interim US attorney expired. The Federal Vacancies Reform Act, a 1998 law that governs the conditions allowing presidents to temporarily fill posts that require Senate approval, elevates first assistants to serve on an acting basis if there’s no confirmed official in place.

But the Third Circuit held that a first assistant must be in place when the Senate-confirmed position becomes vacant in order to assume acting status. The last confirmed US attorney for New Jersey resigned in January.

The circuit court’s holding on the vacancy law’s first assistant provision is a problem because that’s frequently the tool for new administrations to appoint acting officials for important leadership positions among the roughly 1,200 roles that require confirmation, legal observers said.

The FVRA calls for the first assistant to a presidentially appointed, Senate-confirmed official to automatically become the acting official if the post is vacant, unless the president designates somebody else. “First assistant” is a bureaucratic term identifying an agency official’s place in the line of succession.

Presidential Transitions

When a new president takes office, numerous first assistants from the preceding administration resign alongside Senate-confirmed officials. Filling those empty open first-assistant slots, including with people coming from outside government, provides a way to immediately install acting officials.

The Biden administration frequently used the first assistant position to get people in place, a Biden White House official said. Restricting the use of that method would make it difficult for future administrations to staff policymaking and leadership positions right out of the gate, the official said.

Nevertheless, the FVRA also permits career civil servants who’ve reached the highest pay grade, known as GS-15, to serve as acting officials.

New presidents can turn to those senior workers to make sure government operations aren’t interrupted despite the Third Circuit’s ruling on first assistants, said Thomas Berry, director of the Cato Institute’s Center for Constitutional Studies.

“There is no shortage of GS-15s available to serve as acting officers at the beginning of an administration,” he said.