Recently questions have swirled around how the Attorney General can appoint an "interim" U.S. Attorney before the Senate has acted to permanently fill the position, with a focus on the New Jersey position that has been filled temporarily by Alina Habba. A statute (28 U.S.C. 546) allows the Attorney General to make an interim appointment for 120-days, but then provides that the district judges in the district can step in to make a further appointment. On Saturday, VC co-blogger Steve Calabresi questioned the constitutionality of this statute, contending that such cross-branch appointments by the Judiciary of an Executive Branch officer violates separation of powers principles. Yesterday, I rebutted his argument, explaining why the Constitution's Appointments Clause allows Congress to set up this approach to interim appointments. And, if my constitutional analysis of § 546 is correct, then only statutory questions remain about how an interim U.S. Attorney can be appointed.
But Ms. Habba very recently resigned her position as "interim" U.S. Attorney to become "acting" U.S. Attorney. Is this permissible? Over the last 24 hours, this seemingly technical academic issue has suddenly assumed tremendous practical importance. As the New York Times is reporting in a lead story, "New Jersey Criminal Cases Screech to a Halt as [N.J. U.S. Attorney] Habba's Authority is Challenged." In this post, I address the current controversy surrounding the authority of the New Jersey U.S. Attorney. And, more broadly, I also attempt to set out the relevant statutory framework and policy issues surrounding appointments to the important U.S. Attorney positions.
To make a long story short, in my view, Ms. Habba is lawfully the acting U.S. Attorney in the District of New Jersey, at least for a short period of time, via the somewhat circuitous route of having been appointed by the Attorney General to be the First Assistant in the Office, and then being elevated to the Acting U.S. Attorney via the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. But one problem with this approach is that, while seemingly authorized by statute, it appears to have the potential to deprive the Senate of its opportunity to vote on the U.S. Attorney selection for a lengthy period of time. Rather than relying on the FVRA, a more straightforward path for the Attorney General is to simply appoint an "interim" U.S. Attorney every 120 days, under § 546—while the President simultaneously nominates that person to be the permanent U.S. Attorney. Indeed, Ms. Habba could now be reappointed as the interim U.S. Attorney and, simultaneously, her nomination resubmitted to the Senate. Under this approach, the Senate has an opportunity to speak to nomination, while at the same time the Attorney General is entitled to put her own legal team in place in the important U.S. Attorney positions around the country.
