The Justice Department Powerfully Defends Alina Habba's Appointment as Acting U.S. Attorney for New Jersey

Over the last several days, Steve Calabresi and I have been posting about the President’s authority to appoint acting and interim U.S. Attorneys. See posts here, here, and here. We both generally believe the President’s appointment (through his Attorney General) of Alina Habba to be Acting U.S. Attorney for the District of New Jersey is valid.

As I mentioned in my post earlier today, a criminal defendant in New Jersey has challenged Habba’s appointment. And late this afternoon, the Justice Department filed its strong response. Here is the Department’s introduction explaining why Habba is validly appointed and, in any event, the defendant is not entitled to attack the prosecution:

First, Ms. Habba is validly serving as the Acting United States Attorney. The Attorney General properly appointed her as the First Assistant United States Attorney; the First Assistant can serve as the Acting United States Attorney under the Federal Vacancies Reform Act when that office is vacant; and the President properly removed as United States Attorney an individual whom the District Court for the District of New Jersey purported to appoint.

Second, and in any event, even were Ms. Habba not eligible to serve as the Acting U.S. Attorney, there would be no basis for dismissing this indictment or prohibiting everyone in the U.S. Attorney’s Office for the District of New Jersey (USAO-NJ) from participating in this prosecution. At minimum, Ms. Habba has been properly appointed as a Special Attorney to the Attorney General of the United States and directed to supervise the USAO-NJ. Pursuant to that appointment alone, she could still supervise this case—which was initiated by a validly empaneled grand jury and a Senate-confirmed U.S. Attorney—and the Assistant U.S. Attorneys assigned to it can continue prosecuting it under their own delegated authority from the Attorney General, subject to supervision by both Ms. Habba and Senate-confirmed officials in Main Justice, including the Attorney General and the Deputy Attorney General.

Unsurprisingly given my defense of her appointment, I find this brief to be highly persuasive. I did want to highlight the detailed response in the brief to the New Jersey defendant’s claim (endorsed by some law professors) that the fact that Ms. Habba had previously been nominated to serve as the U.S. Attorney blocked her appointment. This specific statutory argument about the Federal Vacancies Reform Act (FVRA) is based on 5 U.S.C. § 3345(b)(1). The Department’s response this point seems particularly powerful:

Although Ms. Habba did not previously serve as the First Assistant, she is not subject to § 3345(b)(1)’s bar because she is not presently nominated to serve as United States Attorney in a permanent capacity (and was not even so nominated at the time of her appointment as First Assistant).

The purpose of subsection (b)(1) is to prevent the President from circumventing the Senate’s advice-and-consent function by installing a pending nominee for an office on an acting basis before the Senate can act on the nomination. See NLRB v. SW General, Inc., 580 U.S. 288, 295–96 (2017) (tracing history of provision). Accordingly, “if a first assistant is serving as an acting officer under [subsection (a)(1)], he must cease that service if the President nominates him to fill the vacant [Presidentially-appointed, Senate confirmed] office,” or else withdraw from nomination. Id. at 301; see Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 558 (9th Cir. 2016) (“Subsection (b)(1) thus precludes someone from continuing to serve as an acting officer after being nominated to the permanent position, unless he or she had been the first assistant for ninety days of the prior year.”).

Subsection (b)(1) therefore presupposes a current nomination to an office that is pending before the Senate. Nothing in the FVRA, however, suggests that the mere fact of a past nomination for an office—withdrawn by the President and never considered or acted upon by the Senate—forever bars an individual from serving in that capacity on an acting basis. The statute precludes a person from serving as an acting officer once “the President submits a nomination of such person to the Senate for appointment to such office,” 5 U.S.C. 3345(b)(1)(B) (emphasis added); it does not say that the person is barred from such service if the President ever submitted a nomination in the past, or continues to be barred once a nomination is withdrawn. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (explaining that a statutory provision “expressed in the present tense” requires consideration of status at the time of the regulated action, not before); Nichols v. United States, 578 U.S. 104, 110 (2016) (same). Indeed, a lifetime ban of that sort would have no logical relationship to the distinct separation-of-powers problem that Congress sought to address in subsection (b)(1): Congress’s desire to protect its ability to consider and act upon a pending nomination for an office can hardly be served if no nomination is pending.

In light of this strong response, the defendant’s specific and narrow statutory challenge to Ms. Habba’s authority should be—and likely will be—quickly dismissed. A quick dismissal will be helpful to the administration of justice, because the challenge to Habba’s authority is reportedly leading to some other cases being put on hold.

Of course, there are other broader issues at play in the appointment of interim and acting U.S. Attorneys, as my earlier posts discuss.

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