Today the U.S. Court of Appeals for the Third Circuit affirmed a district court ruling that Alina Habba is disqualified from serving as the acting U.S. Attorney for the District of New Jersey. The ruling is a setback for the Trump Administration's efforts to install its own leaders in U.S. Attorneys Offices in New Jersey and elsewhere. I have my doubts about the merits of the decision, on statutory construction grounds that I have previously blogged about here and here. (Co-blogger Steven Calabresi has also highlighted constitutional concerns that cast doubt on the underpinnings of the Circuit's decision). But rather than dive into those details, it may be more important to highlight a curious limitation to the Third Circuit's ruling. In its ruling's penultimate paragraph, the Circuit seems to invite the Administration to simply divide the powers of the U.S. Attorney between two people—rather than one. So divided, the opinion seems to suggest, then there is not a single "acting U.S. Attorney." And, accordingly, no problem exists under the relevant statutes with those two appointees each exercising half of the powers of the U.S. Attorney. Rather than appeal the Circuit's ruling (or, perhaps, in addition to appealing), the Administration could swiftly work-around the decision by cleaving Habba's duties in half.
The background surrounding the dispute has been laid out in my earlier posts, and recounted this morning by co-blogger Jonathan Adler's post about the Third Circuit ruling. In a nutshell, Senate Democrats have (for whatever reason) been slow-walking Trump Administration nominees for U.S. Attorney positions. While Senate Republicans have described these delaying tactics as "unprecedented", the important point for this blog post is that the Administration has needed to find a way to put in place its legal teams in place U.S. Attorneys Offices around the country, such as in New Jersey.
The approach that Administration took in New Jersey is, no doubt, complex. I have described the maneuver in detail previously. To quickly recap, on July 24th of this year, the Trump administration took the following steps (as the Third Circuit recounts): (1) the President withdrew Habba's then-pending nomination to be the U.S. Attorney for the District of New Jersey; (2) Habba resigned as the Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as "Special Attorney" to the Attorney General, accompanied by a letter authorizing Habba to conduct "any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" pursuant to 28 U.S.C. § 515; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a)(1). As a result of these moves, the Administration contends that Habba is properly the Acting U.S. Attorney for the District of New Jersey.
