Topline

The Trump administration is trying to overrule a panel of judges’ decision to oust ex-Trump defense attorney Alina Habba as the U.S. Attorney in New Jersey, firing the prosecutor that judges had appointed as Habba’s successor and possibly pursuing a workaround that could return her to the role—but potentially compromising her work.

Yes. While Bondi railed Tuesday against their declining to extend Habba’s term, calling them “rogue judges” who “threaten[ed] the President’s core Article II powers,” federal law states that when a U.S. attorney’s appointment expires, “the district court for [the attorney’s] district may appoint a United States attorney to serve until the vacancy is filled.”

Yes. Federal law gives presidents the power to appoint and fire U.S. attorneys. While there’s been some legal debate over the years about whether that still applies in the case of U.S. attorneys who are appointed by the courts, rather than by the president, a legal memo from 1979 contends presidents do have the right to fire judicially appointed U.S. Attorneys. The DOJ argued at the time that only “makes sense” if it applies to attorneys the president appoints “but also … to ‘each’ U.S. Attorney, including the court-appointed ones.” That memo is not binding, suggesting Grace or the New Jersey judges could challenge the decision in court, but there’s no indication yet they intend to do so. DOJ officials’ statements did not explicitly say Tuesday whether Grace was fired by Trump directly or by DOJ leadership, who likely would not have the authority to fire a U.S. attorney. Deputy Attorney General Todd Blanche said on X the prosecutor was being removed “pursuant to the president’s authority,” however, suggesting President Donald Trump fired her.

It’s unclear. Grace was reportedly fired from the DOJ entirely, according to Politico, where she had been serving as Habba’s first assistant. But that doesn’t necessarily stop her from rejoining the agency Friday as U.S. attorney, Politico notes, because judges can appoint people who aren’t DOJ employees. It remains to be seen if Grace could still try to assume the role after Habba departs on Friday—though doing so would likely be futile, as any tenure she could try to hold would likely be short-lived before Trump just fires her again.

While the panel of judges could have voted in favor of letting Habba stay on as U.S. attorney, their decision to oust her means she can now only assume the role if she gets Senate confirmation. That so far appears unlikely, as New Jersey Sens. Cory Booker and Andy Kim, both Democrats, have signaled they oppose her confirmation. Home state senators can oppose nominations through what’s known as the “blue slip” process, which would likely derail any chance of Habba’s nomination being brought to a vote. Republicans could ignore Booker and Kim’s objections, but Carl Tobias, a law professor at the University of Richmond, told Forbes Wednesday the Senate Judiciary Committee has honored objections to other nominees in the past, so they’re likely to similarly honor the New Jersey senators’ opinions. The White House, however, has continued to push Habba’s nomination, with spokesperson Harrison Fields saying in a statement Tuesday, “The Trump Administration looks forward to her final confirmation in the U.S. Senate and will work tirelessly to ensure the people of New Jersey are well represented.”

In order to keep Habba in the New Jersey prosecutors’ office, the Trump administration reportedly may appoint her to a special position, as it it recently did for another U.S. Attorney, John Sarcone III. The Trump administration named Sarcone as a “special assistant to the attorney general” last week, after judges in the Northern District of New York similarly declined to extend his term. That special assistant role carries the same responsibilities as the U.S. attorney role, the Trump administration said, effectively creating a workaround in order to keep Sarcone in his job. NBC reports the administration intends a similar tactic so Habba remains in New Jersey, but “no specific method has been established yet.” But Tobias told Forbes that if Habba or Sarcone’s authority in such new positions gets challenged in court, it could create long-term problems, as any prosecutions under Habba or Sarcone later could be challenged and found “ not valid,” jeopardizing any of the office’s indictments or convictions.

Habba, a New Jersey-based lawyer previously known for representing a parking garage, became one of Trump’s most vocal advocates when she joined the president’s legal team in 2021. She represented Trump in multiple legal cases between his first and second terms, including the civil fraud trial against him and his company and a defamation case brought against him by writer E. Jean Carroll. She also frequently advocated on Trump’s behalf on television and social media, and made appearances at high-profile events like the Republican National Committee and CPAC. Trump subsequently named her as an advisor to him in his second term before promoting her to U.S. Attorney in March, even though she did not have any prosecutorial experience. Habba generated widespread controversy during her tenure as U.S. Attorney, particularly for her office’s decisions to criminally charge Newark Mayor Ras Baraka and Rep. Monica McIver, D-N.J., for altercations at a federal immigration detention facility in New Jersey. While the case against McIver remains ongoing (the lawmaker has pleaded not guilty), Habba’s office dropped its charges against Baraka shortly after they were brought—prompting the judge overseeing the case to chastise Habba and her office for making a “worrisome misstep” by bringing the charges.