DOJ Standoff Tests Trump Authority Over Court-Appointed Prosecutors

A standoff over who should lead the US attorney’s office in New Jersey is raising thorny legal questions about whether President Donald Trump or federal judges have the power to appoint the top prosecutor on a temporary basis.

The issue came into focus this week as the four-month term of interim US Attorney Alina Habba runs out and the Senate has failed to confirm her nomination to serve for four years. Federal judges in the state chose Habba’s top assistant, Desiree Grace, to succeed her. Trump Attorney General Pam Bondi then fired Grace and slammed the judges.

On Wednesday night, Grace forced the issue, saying in a social media post that she’s “prepared to follow” the judge’s order and “begin to serve in accordance with the law.’’

It wasn’t immediately clear whether Grace plans to challenge the removal in court. She didn’t immediately reply to a comment request sent to her DOJ email Thursday. The DOJ also didn’t return a request for comment.

But the dispute could open the door to legal challenges from defendants facing charges from the US attorney’s office, testing the president’s authority to remove an official appointed under a Civil War era statute giving appointment power to federal judges.

A defendant could challenge the constitutionality of a pick to replace Grace under the “power to remove follows the power to appoint” doctrine, which says “unless Congress choose otherwise, that only the court can remove Grace,” said Stanford Law School professor Anne Joseph O’Connell.

“The defendant would lose under the” conservative-majority Supreme Court’s “view of separation of powers, which seems to require the president to be able to remove such a person,” said O’Connell. “But it would be a fight.”

Any effort to give Habba another interim term could also be contested. The DOJ “has long concluded” that the attorney general “can’t continue to re-appoint an interim U.S. Attorney at the end of each 120-day period,” wrote Georgetown Law professor Steve Vladeck in a post in his Substack newsletter.

Bondi claimed power “she doesn’t have to remove the person Habba had herself chosen to be her deputy—in an effort to keep Habba in a position that she no longer has any legal basis for holding,’' Vladeck said.

Past Standoffs

Such a fight would carry some parallels with the first Trump administration, when a top official inside the Consumer Financial Protection Bureau challenged Trump’s choice to be acting director of the agency.

Leandra English argued in a lawsuit she was the rightful acting director of the CFPB under language in the Dodd-Frank Act. Former director Richard Cordray appointed her to the position upon his departure in November 2017,and she engaged in a leadership struggle after the first Trump administration tapped Mick Mulvaney for the role.

English ultimately dropped her challenge and resigned her position in July 2018 before the US Court of Appeals for the D.C. Circuit had a chance to rule in the case.

Interim US attorneys can serve for no longer than 120 days after their appointment. Under federal law, once that term expires, district courts can appoint a US attorney to serve until their vacancy is filled, by a Senate-confirmed appointee of the president.

Another standoff almost came to a head in 2020 in the Southern District of New York, where judges appointed Geoffrey Berman to continue leading the US attorney’s office after his interim term expired. Berman initially fought the Justice Department’s effort to oust him, but he later relented after then-Attorney General William Barr agreed to name a top Berman deputy as interim chief prosecutor in Manhattan.

During that dispute, Barr sent a letter to Berman saying that a president had authority to fire court-appointed prosecutors.

“To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President,” Barr said.

Courts have repeatedly exercised their appointment authority over the years, usually picking first assistants of the office they’re tapped to lead or “acting people with experience,” said Jennifer Selin, an associate law professor at Arizona State University who researches US attorney appointments.

“Most presidents feel comfortable with those people in the interim position because they’ve been doing that job essentially already,” Selin said.

But the judges’ role in appointments has also drawn criticism. Paul Clement, a prominent litigator who has challenged the Trump administration in several ongoing legal matters, said Thursday that the law used to appoint Grace is a “weird provision.”

“It puts a lot of pressure on the system when the judges are basically rejecting the executive branch’s appointee for US attorney for that district,” he told lawyers and judges gathered at the Ninth Circuit’s judicial conference in Monterey, Calif. “Maybe my conservative is peeking out here, but that’s an executive branch official. “It’s weird to have the judges be in that role.”