A panel of federal appeals court judges pressed the Trump administration on Monday over its creative use of appointment powers to keep Alina Habba in place as U.S. attorney for New Jersey, a test case that could reshape how presidents install top prosecutors without Senate confirmation.
During more than an hour of arguments before the U.S. Court of Appeals for the Third Circuit in Philadelphia, the three-judge panel zeroed in on how the administration extended Habba’s tenure after her four-month interim term expired.
The panel included Judge L. Felipe Restrepo, appointed by former President Barack Obama, and Judges D. Michael Fisher and D. Brooks Smith, both appointed by former President George W. Bush. Smith called the maneuver “a complete circumvention, it seems, of the appointments clause,” while Fisher said the relevant statute suggested Congress intended such interim posts to be filled by career officials, not political allies.
The Trump administration’s attorney, Henry Whitaker, counselor to Attorney General Pam Bondi, defended the process, arguing that “we colored inside the lines here.”
Smith pushed back, emphasizing that the case “is about the statute, the separation of powers, and process,” not about Habba personally.
In August, a federal district court judge in Pennsylvania ruled Habba, a former personal attorney to President Donald Trump, has been serving unlawfully since July 1. That decision was stayed pending appeal, but it has already caused significant disruption in New Jersey’s federal courts, where more than a dozen judges have delayed proceedings amid uncertainty over her authority to prosecute cases.
Defense attorney Abbe Lowell, who represents one of several criminal defendants challenging Habba’s appointment, argued that the administration’s strategy undercuts Congress’s confirmation power.
Notably, Lowell represents two prominent figures currently under indictment in other jurisdictions by the Department of Justice, including former Trump national security adviser John Bolton and Democratic New York Attorney General Letitia James. While neither of those defendants are challenging the constitutionality of the placement of prosecutors handling their cases, Lowell’s involvement continues a streak of recent work for Democrats and opponents of Trump, following his service to former President Joe Biden’s son, Hunter Biden, in his pair of criminal cases.
Habba attended the hearing and later posted online that she has “not had so much as a single conversation” with New Jersey’s Democratic senators about her stalled confirmation. Both senators have said Trump’s appointment tactics undermine judicial independence.
JUDGE’S RULING AGAINST ALINA HABBA TEES UP CONSTITUTIONAL CLASH
Any ruling from the appellate court will likely be appealed, potentially setting up an emergency petition to the Supreme Court. It was not immediately clear when the appeals court would issue its decision.
The outcome could also affect the criminal case against former FBI Director James Comey, whose lawyers have cited Habba’s removal ruling in their bid to disqualify prosecutor Lindsey Halligan, another Trump-appointed U.S. attorney facing similar legal challenges.
