Habba the Nutt The U.S. Attorney Pick that New Jersey's Judges Had to Reject Harry Litman Jul 25 In their zeal to make Trump crony and rabid partisan Alina Habba the United States Attorney for the District of New Jersey, the Trump Administration and Department of Justice have turned what should have been a calm and straightforward transition into a bare-knuckled power grab. Talking Feds Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. In March, the administration appointed Habba (more about her in a moment) to a 120-day stint as interim United States Attorney, then later nominated her for the permanent, Senate-confirmed position. Those 120 days are nearly up, but the Senate has not considered Habba’s nomination. In this situation, Congress has provided a statutory remedy in 28 U.S.C. §546(d): the judges of the district court in which the office sits may select a temporary replacement, who serves until the political process runs its course. The Attorney General can appoint an interim U.S. Attorney for up to 120 days. If that period ends without the Senate confirming a nominee, the local district court steps in and appoints someone to serve until the White House’s pick is confirmed. This isn’t radical. It’s statutory. Congress designed this fallback to ensure continuity in the office when political gridlock prevents a timely appointment. But that’s not how the President and his allies saw it. Pam Bondi called the appointment “a shocking and unprecedented move that reeks of partisan interference.” Deputy Attorney General Todd Blanche said it reflected “a left-wing agenda, not the rule of law.” Their outrage revealed not just ignorance of the law but a worldview in which every decision is a political one—and any result that doesn’t serve the administration’s political interest must be an act of sabotage. Bondi, in her familiar tub-thumping style, declared: “This Department of Justice does not tolerate rogue judges—especially when they threaten the President’s core Article II powers.” She followed up by firing Desiree Grace, the long-serving career prosecutor whom the judges had appointed. In doing so, Bondi made clear she was willing to burn down the office—and sacrifice a career prosecutor who had done nothing wrong—to preserve what she mistakenly sees as Trump’s rightful political prerogative. Grace, for her part, asserted her readiness to assume the role the court appointed her to—and the statutory framework appears to back her up: once appointed by the court, a U.S. Attorney may be removed only by the President, not the Attorney General. On Thursday, the Department made what it clearly believed was a game-ending move: it withdrew Habba’s nomination and appointed her First Assistant United States Attorney. That maneuver was meant to clear the way for her to assume the acting role automatically once the office became vacant—at least for 210 days. But it may not be so simple. As Stephen Vladeck has pointed out, the Administration’s maneuvering could fail under the labyrinthine operation of a different law, the Federal Vacancies Reform Act. That statute prohibits the promotion of a newly installed first assistant to the acting position if they’ve already been nominated to the permanent post. It’s designed to prevent an Administration from doing an end-run around the Senate’s constitutional role of advice and consent. Now, somebody has to sign indictments come Monday. I expect that will be Habba, if only through the use of brute force. But the controversy likely means that a convicted defendant or someone else hurt by Habba’s tenure can bring an action to challenge the legitimacy of her stewardship of the office. So the office, already beset by large problems (see below), will have a cloud of uncertainty over its leadership and the legal effectiveness of its work for a good while. Bondi and Blanche’s view is that the judges should have simply reinstalled Habba, and that any alternative was “a shocking and unprecedented move” reflecting “a left-wing agenda, not the rule of law.” Bondi and Blanche seem to think the court’s role is to act like a second-string Senate—standing by to rubber-stamp the President’s pick if the real Senate stalls. That’s exactly wrong. When the court is called on to appoint an acting U.S. Attorney under §546(d), its job—and its authority—is to install someone who will manage the office capably and impartially until a confirmed nominee is in place. Blanche has further implied that in practice the court nearly always chooses the administration’s interim appointee. That’s also false. Courts sometimes go in a different direction, for good reasons completely consistent with the statute. I know that from personal experience. I was confirmed as U.S. Attorney in 1998 during the tumultuous Clinton impeachment period, when few nominees were making it through. While that impasse played out, the court appointed a respected Republican—someone the administration never would have selected—to lead the office. She was a top-flight professional who did the job well. Grace seems to fit that mold exactly. In a LinkedIn post announcing her readiness to take the job—and implicitly distinguishing herself from Habba’s lack of qualifications—she wrote, “I’ve served under both Republican and Democratic administrations. I’ve been promoted four times in the last five years by both—including four months ago by this administration. Politics never impacted my work at the Department. Priorities change, of course, and resources are shifted, but the work and the mission were steady.” There’s no law or tradition requiring judges to select whoever’s already holding the chair. They may if the pick seems unexceptionable, but the alternative is by no means as rare as the Administration is making it out to be. If that were the norm, courts would become glorified backup staff for the executive branch—there only to ratify the White House’s choice. And that brings us back to Alina Habba. Trump named Habba interim U.S. Attorney last year, bypassing the usual pool of experienced federal prosecutors. Why her? It wasn’t her qualifications—she had no prosecutorial background. Her legal career was marked by ethical issues and sanctions, including nearly $1 million for filing a blunderbuss complaint against Hillary Clinton and the DNC that the court deemed “completely frivolous” and “an abuse of the judicial process.” Worse still, Habba used the office’s nonpartisan authority for overtly political purposes. From the outset, she approached the role as a partisan warrior—and said as much. Shortly after taking office, she announced in an interview, “We could turn New Jersey red… Hopefully, while I’m there, I can help that cause.” That wasn’t a slip of the tongue. It was a jaw-dropping admission of political intent—from the very person tasked with leading federal law enforcement in the state. That posture defined her tenure. Habba launched investigations and indictments targeting high-profile New Jersey Democrats—including the mayor of Newark and a sitting congresswoman—and announced probes involving the state attorney general, despite pushback from career prosecutors. Morale plummeted. Several senior AUSAs resigned. Habba indicted the mayor, but the charges were quietly dropped. The congresswoman’s indictment was announced at a press conference where Habba declared, “Democratic corruption is the real organized crime in this state.” Multiple outlets reported that morale in the office had plummeted under her stewardship and that several senior members of the office had left. In brief, this is not someone any court would appoint. And even if the default practice were to retain the sitting officeholder (which it isn’t), Habba would be the exception. She had no background in criminal law. No experience in federal court. No record of nonpartisan public service. She made openly political declarations about “turning the state red.” She initiated partisan prosecutions that collapsed under scrutiny. She left the office depleted and demoralized. So when her 120-day term expired and the court had to make a call, it did what the law envisions: it chose someone else. That should have been the end of it. Instead, DOJ went ballistic—plunging the New Jersey office into a brass-knuckles standoff that’s likely to leave it demoralized and dysfunctional. The deeper problem is that Bondi, Trump, and this DOJ can’t conceive of any decision from any branch of government that isn’t rooted in political loyalty. Bondi’s tantrum reveals a worldview in which public service is always partisan warfare. Every appointment is political. Every actor is either loyal or treasonous. Every institution must be bent to the will of the boss. In this worldview, government is a tool to reward friends and punish enemies. So if the court rejected Habba, it must be part of a liberal plot—because what else could explain it? Here’s what: Habba is exactly the kind of person who shouldn’t be anywhere near this job. And the district court was under no obligation to ignore that glaring fact. The court didn’t reject Habba because she’s a Republican. They rejected her because she’s unqualified, polarizing, and hostile to the rule of law. That’s what §546(d) is for. And that’s what this administration, in its endless conflation of politics with principle, still refuses to understand. Talk to you later. Talking Feds Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. I Read the News Today, Oh Boy Harry Litman · Jul 23 Read full story Trump’s Grand Jury Head Fake Harry Litman · Jul 22 Read full story