DOJ lawyer grilled by appeals court on legitimacy of Alina Habba’s role as US attorney in New Jersey

By Kara Scannell, CNN

(CNN) — A Justice Department lawyer was peppered with questions about the appointment of Alina Habba as the US attorney for New Jersey as a federal appeals court panel weighs its validity.

DOJ lawyer Henry Whitaker defended the appointment of Habba – one of Donald Trump’s former attorneys – saying it’s not uncommon for someone to be placed into a senior role and stay in it after the time limit is exceeded. Whitaker pointed to a Biden administration attorney who ran the civil division at DOJ without being Senate confirmed.

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

Asked whether there is an expiration to delegated authority, Whitaker said there is not. He was adamant that the administration was not trying to circumvent the normal practice of Senate confirmation, but admitted they’ve “jumped through hoops” to get their people in place. To prove that they’re trying to follow the normal practice, he noted that 16 US attorneys were recently confirmed.

DOJ is appealing a lower court’s ruling that found Habba is serving in the role unlawfully after finding the administration violated the Federal Vacancies Reform Act, which guides the process for how Senate confirmed positions should be made. That decision prompted challenges in other states, including Nevada where the US attorney appointed there was also found to be serving improperly. Another challenge over the US attorney for the Central District of California is currently being litigated.

The concept is also expected to be raised by former FBI Director James Comey as he fights federal charges brought by former White House aide Lindsey Halligan. Halligan, who is now US attorney for the Eastern District of Virginia, also brought the criminal case against New York Attorney General Letitia James. Comey and James have denied wrongdoing.

A panel of three judges from the US Court of Appeals for the Third Circuit, which includes New Jersey, heard arguments on Monday. Two of the judges were appointed by Republicans – President Ronald Reagan and George W. Bush – and one judge by Democratic President Barack Obama.

Habba was initially serving as interim US attorney for New Jersey until that term expired after 120 days. She resigned and was named special attorney, designated as first assistant US attorney and then delegated the authority of the US attorney.

Defendants in two cases argued she was serving unlawfully. A district court judge agreed and found that the first assistant US attorney at the time of the vacancy should automatically fill the position and if that isn’t possible, the president can appoint someone who is Senate confirmed or has been serving in the Justice Department for at least 90 days.

The Justice Department also argued that Habba can serve through authority delegated by the attorney general.

Whitaker said there are different ways to fill vacancies across government and they are selecting which laws to invoke. “We are not asking for limitless power to designate officials,” he said.

Whitaker said Habba can serve in her role until February when a term of 200 days expires, but conceded if Habba is serving under delegation authority there is no expiration.

Abbe Lowell, who argued on behalf of the defendants, said DOJ is “constructing this gerry-rigged way to get Ms. Habba to be in power.”

Lowell said the attorney general can delegate authority but only for a specific role, such as the designation of a special attorney to investigate mortgage fraud, but all the power of a US attorney – overseeing criminal and civil investigations, giving speeches, and moving personnel – cannot be delegated.

“It’s never happened,” he told the panel. “In their interpretation the only thing she doesn’t have is the certificate on the wall that says ‘US attorney,’” Lowell said.

A judge pressed Whitaker on his contention that this is a common practice and then recited the multiple steps that played out over a week to reassert Habba to serve essentially as US attorney.

“Can you come up with an example of any time that such a catenation of events has occurred with respect to the appointment of a United States attorney,” the judge asked Whitaker.

“I guess I cannot,” Whitaker said. He said the judges should find that Habba has authority to supervise cases the same way assistant US attorneys are authorized to conduct criminal investigations – through authority that traces back to the attorney general.

Following the court hearing, Habba placed the blame on Congress, where lawmakers have blocked the nominations of over a dozen US attorney candidates.

“The President appoints individuals to carry out the mission of this administration and that mandate should be respected. When millions of Americans voted for a change in leadership in November, they voted for a new direction. That choice should not be undermined by political obstruction in Congress or by criminal defendants,” Habba wrote on X.

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