The panel of judges seemed to question the administration’s moves during more than an hour of oral arguments.
By Ry Rivard and Erica Orden
PHILADELPHIA — A panel of federal appeals court judges appeared skeptical Monday of President Donald Trump’s use of unconventional methods to install loyalists as top prosecutors without Senate confirmation.
A trio of judges from the Philadelphia-based 3rd Circuit Court of Appeals spent over an hour questioning the multistep process the Trump administration used to designate his former personal attorney Alina Habba the top federal prosecutor in New Jersey and keep her there even after district judges sought to replace her.
In August, a lower-court judge ruled that Habba is serving unlawfully, and the Trump administration is appealing that determination.
The panel Monday consisted of Judge L. Felipe Restrepo, an appointee of former President Barack Obama; and Judges D. Michael Fisher and D. Brooks Smith, appointees of former President George W. Bush.
All three questioned the government’s move, with Smith at one point calling it “a complete circumvention, it seems, of the appointments clause.”
Habba’s is the most advanced of several cases around the country, including in California and Nevada, in which defendants are challenging the authority of U.S. attorneys installed by the Trump administration through unusual tactics meant to quickly put or keep loyalists in place and without Senate confirmation.
The challenges to Habba’s authority came from defense attorneys, including Abbe Lowell, trying to get charges against their clients thrown out.
Henry Whitaker, the counselor to Attorney General Pam Bondi who represented the administration in court, defended its actions, saying: “We colored inside the lines here.”
At one point, he appeared to suggest Habba was being personally targeted, prompting a particularly strong reaction from Smith, who jumped in to say the case was not about Habba personally.
“This is about the statute, this is about the separation of powers, this is about an important position within the firmament of our government, this is about process,” Smith said.
Smith then went through the series of events that the Trump administration used to keep Habba on the job past a four-month period interim U.S. attorneys are allowed to serve. First, Trump withdrew Habba’s Senate nomination to permanently take the post. Then Bondi appointed Habba a special attorney, and then first assistant U.S. attorney — typically the second-ranking official in the office. Because the U.S. attorney’s post was vacant, Habba then automatically filled the top job on a permanent basis. In the process, the administration fired a respected career prosecutor who had been first assistant.
“Can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney?” Smith asked.
Whitaker could not, though he said there were other examples in other parts of government.
Habba attended the hearing at the federal courthouse in Philadelphia. In a social media post after the arguments, she urged the Senate to take up the nominations of other U.S. attorneys and argued the president should be able to appoint his picks to carry out his mission.
“To date, I have not had so much as a single conversation with New Jersey Senators, despite repeated outreach,” she said in the post. “That is not how the process should work in a functioning democracy.”
Both of New Jersey’s Democratic senators have said the process Trump used to keep Habba in place undermines the judiciary.
Fisher repeatedly suggested that one of the key laws at issue in the case suggested Congress wanted unconfirmed acting top prosecutors to be career prosecutors, rather than political picks.
“It’s not the best and most clearest statute that I’ve ever read, I’ll grant you that there’s some confusion in it,” he said. “But it does say to me that Congress had a very specific intent. They wanted an experienced person to be that acting officer.”
Lowell, who is representing someone charged with a Ponzi-like scheme and with bribing a Paterson, New Jersey, official, faced little pushback from the judges. He spoke uninterrupted for about six minutes, while Whitaker was interrupted almost immediately.
Lowell disagreed with one of the Trump administration’s fallback arguments, which asserts that regardless of other statutes, Bondi could delegate powers of a Senate-confirmed U.S. attorney to Habba for a lengthy period of time.
Lowell conceded this could be done for a large share of the job, but not everything.
“You cannot delegate all the functions,” he said.
Any decision from the circuit will almost certainly be appealed. The case raises issues of presidential and congressional power that seem destined to be presented to the Supreme Court.
For several months, Habba has been serving with a cloud over her authority. In August, a district court judge ruled Habba “is not lawfully holding the office of United States Attorney” and has been in the position without legal authority since July 1. That ruling was stayed pending appeals, which could drag on for months.
In the meantime, the New Jersey federal court system is in turmoil because of questions about what Habba can and cannot legally do. According to an August legal filing submitted by Bondi, at least a dozen federal judges in New Jersey have delayed proceedings because of questions about whether Habba is allowed to prosecute cases.
Habba’s office faces another major test this week.
On Tuesday, a federal judge in Newark will consider Rep. LaMonica McIver’s motions to dismiss assault charges Habba filed against the New Jersey Democrat following a May scuffle outside a federal immigration facility.
Reps. Bonnie Watson Coleman and Rob Menendez are both expected to attend those oral arguments.
The trio of New Jersey Democrats was present during the chaos that led to charges against McIver and a trespassing charge against Newark Mayor Ras Baraka. The case against the mayor was dropped by prosecutors and criticized as a blunder by another federal judge.
