Over the last several days, Steve Calabresi and I have been posting about the President's authority to appoint acting and interim U.S. Attorneys. See posts here, here, and here. We both generally believe the President's appointment (through his Attorney General) of Alina Habba to be Acting U.S. Attorney for the District of New Jersey is valid.
As I mentioned in my post earlier today, a criminal defendant in New Jersey has challenged Habba's appointment. And late this afternoon, the Justice Department filed its strong response. Here is the Department's introduction explaining why Habba is validly appointed and, in any event, the defendant is not entitled to attack the prosecution:
First, Ms. Habba is validly serving as the Acting United States Attorney. The Attorney General properly appointed her as the First Assistant United States Attorney; the First Assistant can serve as the Acting United States Attorney under the Federal Vacancies Reform Act when that office is vacant; and the President properly removed as United States Attorney an individual whom the District Court for the District of New Jersey purported to appoint.
Second, and in any event, even were Ms. Habba not eligible to serve as the Acting U.S. Attorney, there would be no basis for dismissing this indictment or prohibiting everyone in the U.S. Attorney's Office for the District of New Jersey (USAO-NJ) from participating in this prosecution. At minimum, Ms. Habba has been properly appointed as a Special Attorney to the Attorney General of the United States and directed to supervise the USAO-NJ. Pursuant to that appointment alone, she could still supervise this case—which was initiated by a validly empaneled grand jury and a Senate-confirmed U.S. Attorney—and the Assistant U.S. Attorneys assigned to it can continue prosecuting it under their own delegated authority from the Attorney General, subject to supervision by both Ms. Habba and Senate-confirmed officials in Main Justice, including the Attorney General and the Deputy Attorney General.
