Trump’s Federal Prosecutor Picks Keep Backfiring on Him
It’s been a rough week for a particular group of lawyers—specifically, those who served as President Donald Trump’s personal attorneys while he was out of office, only to be rewarded with legally dubious appointments to top jobs as federal prosecutors earlier this year without Senate approval. Yes, there is somehow more than one such attorney walking the earth.
The Third Circuit Court of Appeals ruled on Monday that Alina Habba, the person supposedly serving as the acting U.S. attorney for the district of New Jersey, had been unlawfully elevated to that position. The three-judge panel ruled that the Trump administration had violated a federal law that governs vacant positions by tapping her to serve as the chief federal prosecutor in New Jersey.
The panel’s ruling followed a separate decision by a federal district-court judge in Virginia to dismiss the charges against former FBI Director James Comey and New York Attorney General Letitia James because the prosecutor overseeing them, Lindsay Halligan, was also unlawfully working as the acting U.S. attorney for the eastern district of Virginia. Attorney General Pam Bondi had elevated Halligan to the position in September to secure indictments against Comey and James at the president’s demand, after Halligan’s predecessor reportedly concluded there wasn’t enough evidence to bring charges.
Each decision would be a humiliating setback for a normal presidential administration. For this one, however, such sloppiness is almost routine. The Trump administration’s aversion to the rule of law is more than just a moral and ethical failing—it is a self-defeating strategy as well.
Halligan’s situation is more well known because of the high-profile nature of the cases she is prosecuting and the extent to which she is way in over her head. As I wrote about last month, Trump personally demanded earlier this year that the Justice Department pursue dubious charges against two of his political adversaries, Comey and James. Those cases are floundering for other reasons, but the nature of Halligan’s appointment is the most immediate one for now.
Generally speaking, federal criminal cases are prosecuted by federal prosecutors working at one of the 93 U.S. attorney’s offices around the country. For logistical and practical reasons, these offices almost always mirror the jurisdictions of the 94 federal district courts that were also created by Congress. (Guam and the Northern Mariana Islands fall under a single U.S. attorney’s office even though the territories each have their own federal courts.)
These offices typically consist of dozens or even hundreds of lawyers who prosecute criminal cases and represent the federal government in a wide range of civil litigation. All of them are overseen by the U.S. attorney, which might be the most confusingly named title in the republic. U.S. attorneys wield so much power that they must be nominated by the president and confirmed by the Senate under the Constitution’s Appointments Clause.
What happens if a vacancy arises in one of these positions? Congress provided for a smooth continuity of operations by enacting the Federal Vacancies Reform Act, or FVRA, in 1998. The FVRA says that the first assistant U.S. attorney—a career civil service position—serves as the acting U.S. attorney while the job is vacant. Second, the law says that the president may temporarily appoint someone to serve as an interim U.S. attorney. These two options expire after 120 days to avoid constitutional issues, with one exception we’ll discuss later.
The FVRA is, in essence, a pragmatic gloss on the Appointments Clause. The Constitution otherwise forbids non-Senate-confirmed officials from wielding significant executive power. Since it can take time for the Senate to confirm a new appointee, the law proves a stopgap way to keep things running despite the vacancy. This most often occurs when there is a change in presidential administrations, since an incoming president almost always wants to appoint his own slate of nominees.
In Halligan’s case, the incumbent Senate-confirmed U.S. attorney resigned on January 20 when Trump was inaugurated for a second time. The Justice Department appointed Erik Siebert, who had worked within the EDVA office since 2010, as the interim U.S. attorney on January 21, as permitted under the law. Under the FVRA, the judges in a federal district court can extend an interim U.S. attorney’s appointment if the post remains formally vacant. (This is the aforementioned exception.) The EDVA judges voted to extend Siebert’s tenure in May.
Siebert later resigned in September over a dispute with the White House and the Justice Department’s main office over the cases against Comey and James. (In this case, the dispute was over the aforementioned lack of evidence to support criminal proceedings and Siebert’s inconvenient commitment to prosecu.) At Trump’s insistence, Attorney General Pam Bondi appointed Halligan, an insurance lawyer with no prosecutorial experience, to serve as the next interim U.S. attorney. Halligan duly signed the indictments against Comey and James in the weeks that followed.
The two defendants almost immediately challenged Halligan’s appointment as unlawful. Among other things, Comey’s lawyers argued that the 120-day interim appointment was the only one that Bondi could make under the FVRA, and that further appointments had to be made by the courts. The Justice Department countered that Bondi could make multiple interim appointments under the FVRA, with the law’s sole restriction being that she couldn’t appoint someone to the post whom the Senate had rejected. (That restriction will be important later.)
Judge Cameron McGowan Currie sided with Comey based on the structure of the FVRA. “Under the government’s interpretation, attorney general appointees can serve indefinitely without Senate confirmation as long as the attorney general revisits her interim appointments every 120 days,” he wrote. “But if that were correct, the attorney general could prevent interim appointments from ever expiring [...], which in turn would prevent the district court from ever exercising its appointment power[.]” (I’ve cleaned up the internal quotation marks for readability’s sake.)
Among the things Currie cited to support this interpretation was a memo by a young lawyer named Samuel Alito, who happened to serve as the deputy assistant attorney general when an earlier version of the FVRA was enacted in 1986. That law also had the 120-day appointment provision. Alito, who is now known for other legal work (some on behalf of the president), concluded that once that 120-day window expires, “further interim appointments are to be made by the court rather than by the attorney general.”
Bondi appeared to recognize that Halligan’s appointment might be on legally dubious footing by the end of October. On Halloween, she issued a formal order that appointed Halligan to the “additional position” of “special attorney” to exercise some of Bondi’s own delegated power, and backdated it to the date of Halligan’s original appointment in September. While this in and of itself is lawful, Currie noted, he also archly noted that the Justice Department “has identified no authority allowing the attorney general to reach back in Tim and rewrite the terms of a past appointment.”
Further up north, the Justice Department went to even stranger lengths to install Habba as the interim U.S. attorney for New Jersey. As noted earlier, the FVRA designates the first assistant U.S. attorney as the default backup for a U.S. attorney vacancy. The attorney general is free to designate someone else as the interim U.S. attorney during the 120-day appointment, as shown by the EDVA case.
In March, Trump chose (and Bondi formally designated) Habba for the position. While Habba is an experienced lawyer who handled civil cases in private practice, she too had no prosecutorial experience prior to her selection. Trump also nominated her to be confirmed for the job by the Senate. Since New Jersey’s two Democratic senators oppose her, however, she is unlikely to ever receive a confirmation vote.
When Habba’s 120-day term expired in July, the district’s judges declined to extend her appointment and instead elected Desiree Leigh Grace, the district’s first assistant U.S. attorney, to serve in an interim role. That choice sparked a flurry of moves to re-install Habba as the interim U.S. attorney. Bondi fired Grace from her position as first assistant, then appointed Habba as her replacement as first assistant, arguing that this effectively made her the interim U.S. attorney once more.
To further buttress Habba’s authority, Bondi also designated her as a “special attorney” on behalf of the attorney general with authority over all cases in the state of New Jersey. Two defendants in otherwise non-notable federal criminal cases later challenged the legality of their indictments, which Habba had signed, sparking the appeal that eventually reached the Third Circuit.
Unsurprisingly, the panel took a dim view of the Justice Department’s too-clever-by-half maneuvers. It rejected Habba’s appointment on two grounds. First, the court held that only the first assistant in place when a Senate-confirmed U.S. attorney leaves their position can automatically become the interim U.S. attorney. The panel concluded that the FVRA’s language meant that it only applied at the specific moment a Senate-confirmed U.S. attorney resigned, retired, died, or was fired. Installing Habba in this position could not operate as some sort of free-standing workaround to the FVRA’s other provisions.
Second, the panel noted that the attorney general is free to designate someone else to serve as the interim U.S. attorney under the FVRA. But that person cannot be Habba, the panel reasoned, because the Senate has not approved her nomination to hold the position on a permanent basis. The court pointed to explicit language in the FVRA that says “a person may not serve as an acting officer for an office under this section, if […] the President submits a nomination of such person to the Senate for appointment to such office.” This provision is an important separation-of-powers check: it prevents the president from bypassing the Senate by temporarily appointing a doomed nominee to the position anyway.
While all of this might seem hypertechnical and arcane, it has profound consequences for how the federal government operates on a day-to-day basis. In the Third Circuit, the judges merely upheld the district court’s decision to disqualify Habba from working as a prosecutor in the cases at hand. That decision will be binding on lower courts, so it will effectively freeze her out of the U.S. attorney’s office’s work for the time being.
For Halligan and EDVA, the consequences are even more severe since it led to the outright dismissal of the charges against Comey and James, pending appeals by the Justice Department. No tears should be shed for the demise of two malicious prosecutions against a president’s perceived political enemies, of course, but those were not the only two cases that Halligan would have overseen since September. By installing an illegal appointee, the Trump Justice Department may have imperiled a host of legitimate criminal cases within the EVDA office since September as well.
The second Trump administration is less constrained and more destructive than its first iteration, partly because the president and his allies had four years to learn from their past mistakes. Even now, Trump’s presidency is still hampered by its perpetual and original sin: elevating a lawless president’s personal whims over the law and the Constitution itself. So long as Trumpworld treats the law as a puzzle to solve or an obstacle to overcome instead of a process to follow, they will be constrained even more tightly by it—at least, unless the Supreme Court bails them out once again.
