The basics:

• DOJ appeals ruling Habba is unlawfully serving as US attorney in NJ
• Judge ruled interim tenure expired July 1; extended actions may be invalid
• Case moves to 3rd U.S. Circuit Court; some federal cases postponed or canceled

The Justice Department has reportedly appealed a federal judge’s decision that barred President Donald Trump’s former personal lawyer from serving as New Jersey’s top federal prosecutor.

According to Bloomberg, the DOJ filed notice Aug. 25 that it would appeal last week’s ruling by Judge Matthew Brann that Alina Habba is unlawfully serving as acting U.S. attorney for New Jersey. Brann also ruled that Habba is “not currently qualified” to perform the job.

Additionally, Brann deemed the series of maneuvers that the administration took to extend her 120-day interim tenure as improper. Also, he ruled that Habba’s lawful time in office expired July 1 and that any actions taken since then may be invalidated.

Brann’s ruling was put on hold pending appeal. The appeal filing means the case will now head to the Third U.S. Circuit Court of Appeals.

Workaround

After Trump announced her appointment as interim U.S. attorney in March, Habba had 120 days to serve in that capacity. He then formally nominated Habba for the role July 1.

However, New Jersey U.S. Sens. Andy Kim and Cory Booker, both Democrats, have publicly refused to endorse her, making a Senate confirmation for a full four-year term unlikely. Since the Senate did not sign off on Habba within the 120-day window that federal law requires for presidential appointments, a panel of federal judges from New Jersey intervened.

Instead of reappointing Habba last month, the district court judges named then-First Assistant U.S. Attorney Desiree Grace as acting U.S. attorney.

But, that move was effectively reversed July 22, when U.S. Attorney General Pam Bondi abruptly fired Grace. Two days later, Trump withdrew his nomination of Habba as U.S. attorney. She also resigned her position as interim U.S. attorney. Then, the president appointed Habba first assistant U.S. attorney, paving the way for her to automatically take on the acting role.

Since, two criminal defendants have sought dismissal of their indictments because they believe the maneuver bypassed constitutional checks. Given the uncertainty over Habba’s role, some of the 1,500 active federal cases in New Jersey have been postponed or canceled over the past few weeks.

‘I won’t be intimidated’

Before joining the Trump administration, Habba represented the president in multiple legal battles over the years. A graduate of Widener University School of Law, she previously served as managing partner at Bedminster-based Habba Madaio & Associates LLP.

Her controversial tenure as interim U.S. attorney has also included investigations against prominent Democrats in New Jersey. Habba took on Newark Mayor Ras Baraka and U.S. Rep. LaMonica McIver, D-10th District, over their May visit to a privately run federal immigration detention center.

Under Habba, the local U.S. Attorney Office charged Baraka with allegedly trespassing at the facility. The office later dropped those charges, but the mayor sued federal officials for “false arrest and malicious prosecution.” Additionally, Habba brought charges against McIver for allegedly “assaulting, impeding and interfering with law enforcement.” McIver recently pleaded not guilty.

I stand by my work as the U.S. attorney, and I won’t be intimidated by this type of political rhetoric.
— Alina Habba

There’s also been probes announced into Gov. Phil Murphy and state Attorney General Matthew Platkin regarding a state directive that bars local law enforcement from cooperating with federal agents conducting immigration enforcement.

Following Brann’s decision, Habba took to Fox News to criticize the U.S. Senate’s blue slip tradition that empowers home-state senators to block U.S. attorney and district court judges.

“Senator Booker and Senator Kim had absolutely every right to vote no for me for the U.S. attorney position, but I had the right as the nominee to get in front of the Senate and to be voted on, to be vetted. I never even got there. Of course not. I was, according to them, unqualified,” she said. “Look at Rep. Hakeem Jeffries’ tweet. Because I arrested a congresswoman for a charge of assaulting a police officer. And you know what? I stand by my work as the U.S. attorney, and I won’t be intimidated by this type of political rhetoric.”