Trump Defeat on NJ Prosecutor Pick Doesn’t Derail Criminal Cases

Prosecutions by the US attorney’s office in New Jersey are poised to advance despite a federal court decision that the office’s acting leader isn’t lawfully serving in the role, legal scholars said.

A three-judge panel for the US Court of Appeals for the Third Circuit on Monday said the Trump administration unlawfully named Habba as acting US attorney after her 120-day interim appointment expired.

The ruling, which affirms a lower court’s disqualification of Habba, continues President Donald Trump’s losing streak in cases challenging federal prosecutors installed in interim and acting capacities. Habba is one of six US attorneys facing lawsuits over their installations, with judges so far agreeing the appointments violate federal laws.

Monday’s decision, however, doesn’t touch on the indictments brought under Habba’s leadership against the criminal defendants challenging her appointment. The lower court previously refused to dismiss the charges.

While a federal judge last week tossed indictments brought by another federal prosecutor, Lindsey Halligan, other courts have declined to dismiss charges by contested US attorneys when additional office attorneys have signed off on the prosecutions. This indicates that criminal defendants aren’t automatically spared from prosecutions by disqualified US attorneys perceived as loyal to the Trump administration’s agenda, legal analysts said.

“Cases are different depending on how many names and whose names are on that indictment,” said Laurie Levenson, a former federal prosecutor and criminal law professor at Loyola Law School.

In Habba’s case, “the court’s remedy seems to be to disqualify, it doesn’t necessarily mean that the case is going away,” she said.

DOJ and the US attorney’s office in New Jersey didn’t immediately respond to requests for comment.

‘Case-By-Case Basis’

The validity of future cases brought by contested US attorneys will hinge on the presence of lawfully serving attorneys when securing indictments, legal scholars say.

For Habba, “prosecutions in her district may still be valid if they were signed and presented by validly appointed assistant U.S. attorneys in addition to Habba,” Thomas Berry, director of the libertarian Cato Institute’s Robert A. Levy Center for Constitutional Studies said in an email.

“Courts will have to determine that on a case-by-case basis,” he added.

Habba, a former personal attorney for Trump, was first appointed March 28. Trump also nominated her for a four-year term, but New Jersey’s senators, Democrats Cory Booker and Andy Kim, both said she was unqualified.

Halligan, an insurance lawyer with no prior prosecutorial experience, was the sole prosecutor to sign the Eastern District of Virginia’s indictments against former FBI Director James Comey and New York Attorney General Letitia James (D). This resulted in a federal judge’s dismissal of the charges when Halligan was deemed to be illegally serving in her role.

A Bloomberg Law review of recent indictments from Habba’s office, meanwhile, shows assistant US attorneys from the office also signing off. That’s a key distinction that could help the office continue the prosecutions, said Michael Gerhardt, a University of North Carolina law school professor and former special counsel to the Senate Judiciary Committee.

Standing By Picks

Legal scholars agree there’s likely no viable path for Habba to continue to lawfully lead the New Jersey federal prosecutor’s office absent a ruling overturning the Third Circuit panel’s opinion. But they don’t anticipate this will stop the administration from trying to keep Habba in place.

The three-judge panel ruled Monday that the Federal Vacancies Reform Act, or FVRA, bars someone from serving on an acting basis if the president submitted their nomination to the Senate, even if it’s not pending at the time. Trump previously nominated Habba for a four-year term but later withdrew her nomination as the administration executed a series of unusual steps to elevate Habba to the positions of “special attorney” and acting US attorney.

The opinion “held that not only was she not validly appointed acting officer, but that her previous nomination means she is forever disqualified from becoming the acting officer, even by otherwise valid means,” Berry said.

But the DOJ Office of Legal Counsel’s direction last week that Halligan continue to be referred to as the Eastern District of Virginia’s US attorney in court filings signals the administration’s approach is to “disregard as much as possible what the court rules,” Levenson said.

“It gives you their attitude, which is to ignore the court’s decisions until they’re forced to do so, and the only court that really can force them to do so is the Supreme Court,” Levenson said.