A federal district judge was correct to disqualify Alina Habba as the top federal prosecutor in New Jersey, an appellate panel ruled Monday, dealing the Trump administration its latest loss on an issue that’s pending in U.S. attorney’s offices around the country.
The Supreme Court could have the last word on the subject, which affects federal prosecutors installed by the administration who haven’t been confirmed by the Senate and whose tenures have been challenged as illegal by criminal defendants.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” the panel observed in disapproving of the attempt to install Habba.
Another Trump-installed prosecutor whose tenure is in doubt is Lindsey Halligan in the Eastern District of Virginia. She lacked prosecutorial experience and was placed in that office to secure indictments of Donald Trump’s political opponents over the objections of career prosecutors. Halligan, who brought charges against former FBI Director James Comey and New York Attorney General Letitia James, was recently deemed by another federal district judge to have been unlawfully appointed. The Trump administration said it will appeal that ruling.
Like Halligan, Habba is a former personal lawyer to the president.
A federal district judge ruled in August that Habba was serving unlawfully. The administration appealed to the federal appeals court that covers New Jersey, the U.S. Court of Appeals for the Third Circuit. At an October hearing, a three-judge circuit panel sounded skeptical of the administration’s arguments. Making that skepticism official on Monday, the panel affirmed the district court’s disqualification order.
The administration’s promised appeal of Halligan’s disqualification in Virginia would fall under a different federal circuit (the Fourth). When different federal circuits rule differently on an issue, that makes it more likely that the Supreme Court will step in to resolve a conflict if asked to do so. The legal issues surrounding Habba’s and Halligan’s appointments aren’t exactly the same but there is overlap. The appointment issue has also been litigated on the other side of the country in federal districts in California and Nevada, where judges have likewise disapproved of the administration’s attempts to bypass Senate approval of top federal prosecutors. Those western states fall under the Ninth Circuit.
Though the appellate ruling in Habba’s case came first, the administration may be more eager to revive Halligan as the top federal prosecutor in Virginia. Unlike in the appeal in Habba’s case, the judge in Comey and James’ challenge not only said that Halligan was unlawfully serving but that the indictments she brought against those Trump targets must be dismissed as a result.
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