Today a federal district court (Judge Brann) ruled that Alina Habba is not lawfully acting as the U.S. Attorney for the District of New Jersey. But, remarkably, the district court failed to explain who instead lawfully holds the power of the U.S. Attorney for that district. The district court apparently recognized the uncertainty that its ruling would create, staying the ruling pending the Justice Department's sure-to-follow appeal. But the fact that the district court's order gives no answer to that basic question is, itself, strong reason for questioning its reasoning. On my reading of the relevant statutes, Ms. Habba is currently lawfully exercising the powers of the U.S. Attorney for New Jersey via the interim appointment statute. And if for some reason Ms. Habba lacks authority under that statute, the Attorney General has authority to name someone to assist in carrying out the Department's prosecutions in that state—and the Attorney General has properly named Ms. Habba.
I've blogged about this appointment issue earlier. Because the details are important, a recapitulation is in order (with some minor details omitted—you can read the District Court's 77-page opinion for the full chronology). As with my earlier posts, I express no view on the merits of Ms. Habba's appointment, only its lawfulness.
On January 8, 2025, as President Trump's inauguration was approaching, President Biden's U.S. Attorney—Philp R. Sellinger (who had previously been confirmed to the Senate by voice vote)—resigned to make way for the new Administration's nominee. Upon Sellinger's resignation, his First Assistant U.S. Attorney—Vikas Khanna—became the Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA). (Since then, Mr. Khanna has left the Department to go into private practice.)
