The two sides aren’t in a negotiating mood, but this needs a solution, and the Senate needs to get cracking on getting Trump’s appointees up or down votes.
Well, the New Jersey donnybrook we foresaw here on Monday has broken out.
The judges of the federal district court, headquartered in Newark, did indeed decline to extend the 120-day term of Alina Habba, the interim U.S. attorney appointed by Attorney General Pam Bondi on President Trump’s behalf. As I noted, the bench in New Jersey skews 15-2 in favor of Democratic appointees.
The aggressive judges then took things a step further — which is to say beyond their constitutional authority. They attempted to install Habba’s first assistant, Desiree Leigh Grace, as the district’s top prosecutor. The Trump DOJ predictably responded by removing Grace from her position.
It is not clear to me from the reporting (check out this piece from NJ.com) whether Grace has been fired or merely sidelined so that she is rendered unable to be elevated to acting district U.S. attorney by the court.
To repeat what I explained Monday, the text of the governing statute, Section 546, ostensibly allows the judges to fill the U.S. attorney post if the AG’s interim appointee is not extended, but this crashes into the Constitution:
Textually, if the court does not extend beyond 120 days the interim U.S. attorney appointed by the attorney general, Section 546 empowers the district judges to appoint their own chosen U.S. attorney. Constitutionally, though, that is a non-starter. Because interim appointees wield significant executive power, the president has the power to remove them at will. Consequently, there is no point in the court’s naming someone to whom the president objects.
Bondi reminded the judges of this stark reality, although I have to think they knew it was coming. To reiterate, “the judges’ choice is: Extend the president’s interim appointee, agree with the administration on an alternative appointee, or allow the position to remain vacant.”
Habba didn’t have much of a chance to be extended. She is inexperienced: Her interim gig running the nation’s fifth largest U.S. attorney’s office (with about 170 assistant U.S. attorneys, in addition to scores of support staff) was her first ever as a prosecutor. Aside from the facts that she is an unabashed, aggressive pro-Trump partisan and needed the approval of an overwhelmingly Democratic district court bench in order to stay on, she had presided over both the arrest of Newark Mayor Ras Baraka (who is now suing the government after Habba dismissed the charges) and the indictment of LaMonica McIver, one of the Garden State’s Democratic members of the House of Representatives.
Trump has formally nominated Habba to be the U.S. attorney. Were the Senate to confirm her, it would not matter whether the judges object to her — she would be the United States Attorney for the District of New Jersey. But it’s not clear whether Habba is confirmable. I’m sure the president, who is fond of Habba, will be tempted to pressure Senate Republicans to confirm her; but she may not have the votes, and Trump has to pick his battles carefully.
The president could find a meaningful job for Habba at the White House counsel’s office (where she was before he and Bondi made her interim U.S. attorney) or at Main Justice (as I noted in the earlier post, that’s what happened with another Trump favorite, Ed Martin, once it became clear that he didn’t have the votes to be confirmed as U.S. attorney for the Washington, D.C.).
So what happens now in New Jersey? Not clear.
I opined that the White House should have tried for an agreement with the judges to let Habba stay on as interim until the Senate votes on her nomination. Section 546 prohibits the installation of an interim U.S. attorney whose nomination has been rejected by the Senate, so the president would have had to agree that (a) this prohibition applied to Habba if she were rejected, and (b) he would not withdraw her nomination if the judges extended her pending a confirmation vote. I don’t know if there were such negotiations; I tend to doubt it.
Setting Habba aside, the next option would be for the administration and the court to agree on a mutually acceptable interim U.S. attorney. To put it mildly, Bondi is not laying the groundwork for fruitful negotiations. After the judges rejected Habba and imperiously tried to replace the president’s choice with their own, Bondi not only removed the judge’s choice but posted on X that “politically minded judges” had refused to extend Habba’s interim appointment, and elaborated that she believes they are “rogue judges.”
If there is no practical possibility of a negotiated solution, the president could try to appoint a second interim U.S. attorney — as he did in Washington, D.C., when Martin was replaced by Jeanine Pirro (whom the president has formally nominated and who is awaiting Senate confirmation). As discussed in the earlier post, I do not believe Section 546 is properly interpreted as allowing multiple interim appointments. If Trump tries to do it anyway, expect legal challenges — and expect the district judges to be quite indulgent of those challenges.
The position could remain vacant for a while. Again, it is worth watching whether we’re seeing a new trend in which heavily Democratic benches in blue federal districts refuse to extend interim U.S. attorneys named by Trump and Bondi.
There are reports (see, e.g., here from The Hill) that the president is pressuring the Senate to cancel its summer recess in order to confirm his nominees. As Rich observed earlier in the week, “this is important,” and they are way behind.