Judges Seem Skeptical of DOJ's Moves to Keep Habba

A three-judge federal appeals court panel reportedly seemed skeptical on Monday of the lengths the Trump administration has gone to retain Alina Habba as the top federal prosecutor in New Jersey.

According to Politico, the panel from the 3rd Circuit Court of Appeals in Philadelphia spent more than an hour questioning the process the administration used to install the president's former personal lawyer as the Garden State's acting U.S. attorney, even as district judges sought to oust her.

A lower court judge ruled in August that Habba's appointment is unlawful, and Trump's administration is appealing that decision.

The panel on Monday reportedly included Judge L. Felipe Restrepo, an appointee of former President Barack Obama; and Judges D. Michael Fisher and D. Brooks Smith, both appointees of former President George W. Bush.

Politico reported that all three judges questioned the administration's maneuvering, with Smith labeling it "a complete circumvention … of the appointments clause."

Justice Department attorney Henry Whitaker defended the administration's actions in court, saying, "We colored inside the lines here."

Whitaker argued that it's common for someone in a senior role to stay in the position after the time limit is up, pointing to a Biden administration attorney who ran the civil division at the Department of Justice without being confirmed by the Senate.

"When the attorney general designates someone, that is a distinct kind of service," Whitaker said, according to CNN. "Congress recognized nonetheless we can keep the lights on, and we can continue to have officials exercise functions purely by delegation."

At one point, Smith shot down a suggestion from Whitaker that Habba was being personally targeted by the case.

"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, according to Politico.

After it became clear that Habba's expiring appointment would not be backed by New Jersey Sens. Cory Booker Andy Kim, both Democrats, federal judges in the state exercised their authority to replace Habba with a career prosecutor who had served as her first assistant.

Attorney General Pam Bondi then fired the prosecutor who had been put in place by the judges and reappointed Habba as acting U.S. attorney.

After running through the maneuvers that the Trump administration used to keep Habba at her post beyond the four-month period that an acting U.S. attorney is permitted to serve, Smith asked if Whitaker could provide an example of another instance in which a similar chain of events occurred.

Whitaker reportedly said he could not, but noted there were examples present in other parts of government.

Habba was present for the proceedings at the federal courthouse in Philadelphia, Politico reported.

In a post on X following the hearing, she called on the Senate to consider the nominations of other U.S. attorneys and claimed there was a "politically motivated effort to impede the President's constitutional authority to appoint U.S. Attorneys."

"The President appoints individuals to carry out the mission of this administration and that mandate should be respected," Habba wrote. "When millions of Americans voted for a change in leadership in November, they voted for a new direction."

She continued, "That choice should not be undermined by political obstruction in Congress or by criminal defendants. To date, I have not had so much as a single conversation with New Jersey Senators, despite repeated outreach. That is not how the process should work in a functioning democracy."

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