Alina Habba to remain N.J. prosecutor: "I don't cower to pressure"
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Alina Habba at the White House on March 28. Photo: Bonnie Cash/UPI/Bloomberg via Getty Images
Alina Habba on Thursday proclaimed herself the acting U.S. attorney for the District of New Jersey, days after federal judges replaced her from the position.
The big picture: The move potentially sets up another fight with the courts after Habba, President Trump's second U.S. attorney nominee, was replaced by the judges in a signed court order.
Driving the news: "Donald J. Trump is the 47th President. Pam Bondi is the Attorney General. And I am now the Acting United States Attorney for the District of New Jersey," Habba declared in a post on X.
- "I don't cower to pressure. I don't answer to politics. This is a fight for justice. And I'm all in," she added.
- Bondi reshared the post.
State of play: Trump had appointed his then-presidential counselor Habba to serve as interim U.S. attorney for the District of New Jersey in March.
- Federal judges on Tuesday appointed a new interim U.S. attorney for the District of New Jersey as Habba awaited Senate confirmation.
- But hours after Desiree Leigh Grace was appointed, Bondi announced she had been removed from the position and criticized the judges.
Behind the scenes: A Department of Justice source told Axios on Wednesday that Habba's 120 days' tenure had not expired as the appointment order was signed on March 28.
- She can now remain in the acting role for 210 days as her nomination was pulled and she resigned as interim U.S. attorney under a congressional rule on the matter, the source said on Thursday.
- Habba was appointed as first assistant U.S. attorney and because there is a vacancy, she is now serving as the acting U.S. attorney, according to the source.
Between the lines: The president can't appoint the first assistant to be the acting officer if her nomination was submitted, not just if it's pending, said Steve Vladeck, a constitutional law professor at Georgetown University, on Bluesky.
- "Withdrawing the nomination doesn't change the fact that it was submitted," he said, citing U.S. Code.
Context: The U.S. Code stipulates that interim U.S. attorneys are only allowed to serve for 120 days if they are not confirmed by the Senate or extended by the district court.
- After the appointment expires, the district court is allowed to appoint a new prosecutor to serve until "the vacancy is filled."
What we're watching: The act the Trump administration is apparently relying on doesn't allow an individual to hold an office on an acting basis if the president "submits" a nomination for them to that office, "unless they were already the first assistant for 90 of the 365 days preceding the vacancy," Vladeck said in a Thursday email.
- "Given that she was formally nominated earlier this month, that ought to preclude reliance upon this provision here," Vladeck said.
- The "point of the statute is to prevent just this kind of bootstrapping; it doesn't require a nomination to be pending — only submitted," added Vladeck, who said he wouldn't be surprised if the administration's actions were challenged.
Go deeper: DOJ fires newly appointed N.J. prosecutor who replaced Trump ally Habba
