A federal judge has ruled that Alina Habba, former personal attorney to President Donald Trump, was unlawfully appointed as Acting U.S. Attorney for the District of New Jersey. The ruling follows months of legal wrangling by the Trump Justice Department to extend Habba’s tenure beyond the statutory limit, despite opposition from the district’s judges and criminal defendants.
On August 21, 2025, a federal judge in Pennsylvania ruled that Alina Habba's machinations to remain U.S. Attorney for New Jersey were unlawful and that she cannot serve as the top prosecutor in the state — for now.
Let’s understand the different laws around appointing U.S. attorneys before explaining how the court ruled.
The Appointments Clause
The U.S. Constitution addresses the appointment of powerful positions within the executive branch. Article II, Section 2 states that important government jobs (like United States Attorneys, Ambassadors, and Judges) aren’t just handed out by presidential whim. Instead, the Senate has to give its blessing, known as “advice and consent.”
The Founders believed that unchecked appointment power leads to cronyism and, eventually, tyranny. The Senate’s role is, therefore, more than ceremonial; it safeguards against executive overreach. And when things get messy (as they often do), it’s up to the courts to ensure everyone plays by the rules.
Statutory Provisions
Congress has fleshed out these constitutional basics with some statutes that spell it out in more detail. For example, 28 U.S.C. § 541 says U.S. Attorneys are picked by the President and confirmed by the Senate, no shortcuts allowed.
But what happens if there’s a sudden vacancy? For that we have 28 U.S.C. § 546, sometimes called the “interim appointment statute." This law lets the Attorney General appoint an Interim U.S. Attorney for up to 120 days. If that time runs out and no one new has been confirmed by the Senate, then it’s up to the district court to appoint someone until a permanent replacement arrives.
And for those times when things get really complicated, we’ve got the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345 et seq.
The Federal Vacancies Reform Act
The FVRA is basically Congress’ way of making sure presidents don’t just toss their allies into powerful jobs without following the rules. When a top spot in an executive agency unexpectedly becomes vacant, the FVRA steps in to say who can fill the shoes temporarily. FVRA is designed to prevent presidents from using loopholes or endless acting appointments as a way to dodge Senate confirmation.
Here’s how it works: The person who was already second-in-command (the “first assistant”) automatically steps up as acting boss when there’s a vacancy. What if the president doesn't approve of the first assistant? The president must instead choose from a short list. This includes another Senate-confirmed official or a senior agency employee who’s been around for at least 90 days and gets paid at a certain level.
FRVA also has what you might call an “exclusivity clause.” It says FVRA is usually the way to fill vacant PAS jobs, unless another specific law says otherwise (like for U.S. Attorneys under the interim appointment statute). It also slams the door on using general delegation statutes to sneak someone into an acting role.
Some Appointments Are Hard to Keep
On March 3, 2025 John Giordano was appointed Interim United States Attorney by the Attorney General pursuant to the interim appointment statute. Giordano served until March 28, when Alina Habba was formally sworn in as Interim United States Attorney under the same statute.
Habba’s interim appointment was subject to the statutory 120-day limit, which, as the court determined, began with the initial appointment of Giordano, expiring on July 1. But despite this expiration, Habba continued to act as United States Attorney. On July 22, 2025, the District Court attempted to appoint Desiree Grace as United States Attorney under the interim appointment statute.
Determined to have the pick who said she was going to "turn New Jersey red," U.S. Attorney General Pam Bondi responded by firing Grace later that day. The Trump administration then orchestrated a series of moves to get their pick in place. Habba’s nomination for permanent appointment was withdrawn, she resigned as Interim United States Attorney, was appointed Special Attorney, designated First Assistant, and then claimed Acting United States Attorney status under the FVRA. As an acting U.S. attorney fulfills the role of the actual position if it's vacant, this effectively gave Habba the job for at least the next 210 days.
However, a few criminal defendants in New Jersey had something to say about that.
Defendants Strike Back
Two criminal defendants claimed Habba was appointed illegally. As such, her actions, including signing indictments and supervising prosecutions, were voidable. The court ordered her disqualified from participating in ongoing cases.
U.S. Chief District Judge Matthew Brann declined to dismiss the charges against the defendants, which ranged from drug trafficking to fraud.
Perhaps cognizant that his ruling was part of a legal journey as opposed to the end, Judge Brann stayed most of the effects of his decision pending appeal. The decision, which is already being appealed, sets the stage for further legal challenges to the administration’s handling of top federal prosecutor appointments.
Related Resources
- The Appointments Clause (FindLaw's U.S. Constitution)
- Trump's LA Military Deployment Trial Unfolds (FindLaw's Federal Courts)
- Trump Administration Moves to Restrict Public Service Loan Forgiveness (FindLaw's Law and Daily Life)
