A Minor Crisis In Jersey

There are usually guards at the entrance to the United States Attorney’s office for the District of New Jersey. Two women walk boldly toward the door, one Desiree Grace and the other Alina Habba. Only one of the two still has a position in the office. Which one does the guard let pass?

The Justice Department on Thursday cleared the way for Alina Habba to remain in her role as the top federal prosecutor in New Jersey.

Ms. Habba’s tenure as interim U.S. attorney was set to expire on Friday. But she announced on social media on Thursday that she would be New Jersey’s acting U.S. attorney.

The decision will allow Ms. Habba to lead the New Jersey office for at least the next 210 days.

Oh? Is that how the law works? The Times seems to think so, but Steve Vladeck doesn’t think so. Neither do I. The Trump administration, as it’s wont to do, believes it found a loophole that allows it to play shenanigans with the law. Realizing that they were screwed under 28 USC §546, which limited an interim US Attorney to 120 days, which authorized the district court to name the US Attorney so that the position wouldn’t be vacant, first claimed that Habba was not appointed when Trump twitted her appointment, but on the date the order was signed, which they claim was March 28. Apparently, they’re of the view that you can be fired by twit but not appointed by twit.

That meant that the 120 day period had not yet expired when the district court issued its order naming Desiree Leigh Grace the acting United States Attorney. So Attorney General Pam Bondi fired Grace from her then-position as First Assistant United States Attorney and, they now claim, appointed Habba, who was still the interim United States Attorney if they are right about the dates, who quit the interim position to take Bondi’s appointment to the position as her own first assistant.

Habba’s uncomfirmed nomination as United States Attorney was withdrawn and, boom, since the interim position was now vacant, Habba as her own first assistant assumed the acting United States Attorney position under the Federal Vacancies Reform Act. Whew.

Except that doesn’t work either.

(b)
(1)Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—

(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

In other words, the law expressly prohibits the effort to circumvent the law by the very shenanigans used here. Habba did not serve in the First Assistant position for 90 days of the preceding 365-day period. And despite the withdrawal of Habba from nomination as the United States Attorney for the District of New Jersey, it was most definitely submitted, which is what the text of the law provides. It does not state that it needs to be pending, but merely submitted, and it does not become unsubmitted because of withdrawal.

And yet, the bold, brave and unpolitical Alina Habba has proclaimed herself the United States Attorney anyway, with the blessing of the Attorney General.

I would hate to be the guard at the door to the United States Attorney’s office for the District of New Jersey, and I would hate to be an assistant in the office making an appearance before a district court judge informing them that I reject their appointment of Desiree Grace and that I’m appearing for Alina Habba. The irony of a United States Attorney prosecuting Americans for violating the law when she has usurped a position contrary to law might be more than a good and decent judge can bear.

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4 thoughts on “A Minor Crisis In Jersey”

  2. Miles

    It seems unlikely that Grace will challenge her “firing,” which leaves it to the judges of the district court to decide whether to recognize Habba or not. Is this the place where they take their stand or will this become the new precedent for circumventing the law?

    1. PK

      As of Wednesday, after her firing but before this scheme, Grace stated via a linkedin post that she planned to serve as selected, presumably beginning when Habba vacated the position today. Now that Habba plans on staying, Grace gets to decide whether to bow to the administration or take up the appointment by the Court. A dilemma for her, perhaps.

  3. Hal

    “The decision will allow Ms. Habba to lead the New Jersey office for at least the next 210 days.”

    The word “lead” is an interesting choice…

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