


The battle between the Trump administration and the federal judges in New Jersey is intriguing, and complicated.
The battle between the Trump administration and a federal court over the president’s determination to have his former defense attorney Alina Habba serve as New Jersey’s top federal prosecutor — which I’ve written about here and here — has taken a strange twist.
Let’s summarize how we got here. As has become customary since the firing by President Clinton, then newly inaugurated, of nearly all Bush-41-appointed U.S. attorneys whose nominal four-year terms had not expired, Philip R. Sellinger, the Biden-appointed and Senate-confirmed U.S. attorney for the district of New Jersey (DNJ), resigned on December 8, after President Trump’s victory in the 2024 election.
Once the Trump administration had begun to settle into office and Attorney General Pam Bondi took over the Justice Department (after being confirmed in February), John Giordano was appointed interim U.S. attorney for the DNJ on March 2. This was done under Section 546 (of Title 28, U.S. Code), which authorizes the AG to appoint an interim U.S. attorney for 120 days.
President Trump, however, soon decided to make Giordano his ambassador to Namibia and to appoint Alina Habba (who was then working in the White House Counsel’s office) to be the DNJ’s U.S. attorney, on the 120-day interim basis specified in Section 546. Trump also formally nominated Habba to be the DNJ’s full-fledged U.S. attorney, which would require Senate confirmation.
The confirmation process has been slow for a number of Trump executive and judicial nominees. It is also not clear that Habba — a firebrand MAGA favorite whose interim tenure has featured the arrest of Newark’s Democratic mayor (Habba subsequently dropped the charges) and the indictment of one of New Jersey’s Democratic House members — has sufficient support to be confirmed by the Senate. (To be clear, I am not saying she lacks support; the Senate has a 53–47 Republican majority, which has narrowly approved a number of controversial Trump appointees. I have no idea what the whip count on Habba may be.) As a result, Habba’s 120-day term came to an end this week.
Section 546 provides that an interim appointee can continue in office indefinitely (at least, until a nominee for the post is confirmed by the Senate) only if the judges of the district court approve. The DNJ bench is heavily Democratic (15 Democratic appointees to two Republican), and this week the court rejected the administration’s bid to extend Habba.
Section 546 also authorizes the court to install an interim U.S. attorney of its own choosing. This, however, is a constitutionally fraught provision. Because U.S. attorneys exercise executive power, the Constitution empowers the president to remove them at will. The judges tried to install the first assistant in the DNJ’s U.S. attorney’s office, Desiree Leigh Grace. Grace was promptly removed. As I’ve argued, Section 546 is designed to force the president and the judges to cooperate on the selection of an appointee who has not been Senate-confirmed.
(Aside: Grace is reportedly an experienced, career prosecutor — not a political appointee or activist. It is not clear to me whether she was merely removed from the position of interim U.S. attorney, which would allow her to remain in the office as a prosecutor, or fired outright. It is also not clear to me whether the firing was done by AG Bondi, one of her subordinates — e.g., Deputy AG Todd Blanche, to whom the nation’s district U.S. attorneys report — or President Trump. Bondi would surely have authority to remove an interim U.S. attorney she had appointed if that person had not been extended by the judges. Only the president has authority to remove Senate-confirmed district U.S. attorneys. I am not certain that Bondi could lawfully remove an interim U.S. attorney appointed by the court under Section 546 — some progressive administrative law thinkers would posit that, if the court appointed the interim U.S. attorney, the court could remove her but the AG could not. The question is academic, though, because the president clearly has the constitutional authority to remove an interim U.S. attorney. Ergo, even if we assume it was Bondi or Blanche who communicated the removal order to Grace, if there were an objection, Bondi would simply ask the president to formally remove Grace, and that would surely be done.)
Rather than accept the DNJ court’s rejection of Habba, the Trump administration has now endeavored to appoint her as the acting U.S. attorney under the Vacancies Reform Act (VRA) (Section 3345 et seq., Title 5, U.S. Code) — which is not to be confused with the afore-described interim U.S. attorney post under Section 546. The VRA, which governs vacancies government-wide, is broader than Section 546 (which mainly covers the Justice Department).
While many congressional statutes are not models of clarity, Section 3345 is nearly inscrutable.
I assume that Section 3345 of the VRA is properly being applied because the vacancy was initially created by the resignation of the last Senate-confirmed U.S. attorney, Sellinger. Some would argue, however, that a new vacancy has been created each time someone rightfully in the position — whether as acting or interim U.S. attorney — either resigned (as Giordano did) or became unqualified (as Habba did when the court declined to extend her term). This matters because a person qualified to serve as an acting U.S. attorney generally gets a term of 210 days. There could be debate over when that 210-day period began — in December when Sellinger resigned, or earlier this week when the DNJ judges voted down Habba?
Under the VRA, to qualify as the acting officer (here, the acting U.S. attorney), the appointee must be either (a) the first-assistant in the office, (b) someone else in the office chosen by the president (and only the president), or (c) someone in the government who is already serving in a position requiring Senate confirmation and who is chosen by the president (and only the president).
When Grace was removed this week, Habba was appointed as first-assistant. (It’s not clear to me whether she was so appointed by the president or the AG, but that probably doesn’t matter — I believe they both have the necessary authority.) President Trump also withdrew Habba’s formal nomination to be the full-fledged U.S. attorney. That sounds like a rebuke of Habba, but it was the opposite — done to clear the path for her appointment as acting U.S. attorney under the VRA (I’ll explain this momentarily).
Habba announced yesterday on X that she has been named the acting U.S. attorney. I assume there are two theories for this.
The first is that Habba was initially appointed the first assistant, and under Section 3345, the first assistant is the preferred choice to fill the acting role. But the matter is not clear-cut. Under Section 3345, a first assistant may not be appointed as an acting U.S. attorney if the president has formally nominated the person to the office of U.S. attorney. That is why — as noted above — Trump withdrew Habba’s nomination.
That, however, is not the end of the story. A first assistant is not qualified to be acting unless she was serving in the first assistant position for at least 90 days prior to the occurrence of the vacancy. Habba was never the first assistant in the DNJ until yesterday.
I suspect, nevertheless, that pointing this out elevates form over substance. Prior to the court’s vote against her this week, Habba had been the interim U.S. attorney. In the chain of command, the first assistant is the direct subordinate of the interim U.S. attorney. It is thus plausible to argue that, for more than 90 days, Habba held a position in the office that made her the first assistant’s superior. Hence, she should be deemed qualified (even if this departs from the statute’s text).
Which brings us to the second theory.
As noted above, Section 3345 empowers the president may elevate to an acting leadership position someone who is already serving in the office. The provision states:
The President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity [subject to the relevant time limitations].
Habba was in the office, both as interim U.S. attorney and, as of yesterday, as first assistant. Hence, even if there is a question whether she technically qualifies under Section 3345’s first-assistant provision, she probably qualifies under the presidential-selection-from-within-the-office provision just excerpted above.
One final point: The last subsection of Section 3345 states that “the expiration of a term of office is an inability to perform the functions and duties of such office.” Based on this, I anticipate the objection that, because Habba’s 120-day term as interim U.S. attorney under Section 546 expired and the court declined to extend her, she should be deemed unable to perform the functions of an acting U.S. attorney. I don’t pretend to know whether such an objection would gain traction. (I suspect the DNJ judges are going to be miffed and quite receptive to arguments that Habba is not statutorily qualified.)
While the political combat between the administration and the district court is full of intrigue, the significant aspect of this controversy is the risk to law enforcement. If there is any infirmity in Habba’s appointment, criminals who have violated the law could argue that any prosecutions of them by the DNJ while Habba is in the acting U.S. attorney post should be invalidated. That is something to watch.
Finally, if President Trump and Senate Republicans know at some point that they can round up sufficient votes to confirm Habba, I would expect her to be renominated and Senate-confirmed. If she doesn’t have the votes, she will probably be the acting U.S. attorney for the next six or seven months. Probably.