Acting U.S. Attorney Alina Habba’s appeal to the Third Circuit after a lower-level judge disqualified her from service will be heard by two appellate judges appointed by George W. Bush and a third appointed by Barack Obama, according to a court document filed yesterday.
Oral arguments in the appeal – which has national implications for President Donald Trump’s ability to install U.S. Attorneys without Senate approval – will be heard on October 20 in Philadelphia.
The three-judge panel hearing the case will consist of Judge L. Felipe Restrepo of Philadelphia, appointed by Obama in 2016; Judge D. Michael Fisher of Pittsburgh, appointed by Bush in 2003; and Judge D. Brooks Smith of Duncansville, Pennsylvania, appointed by Bush in 2002. Fisher and Smith have both assumed senior status, but are still able to be assigned cases.
That means that none of Trump’s own five appointees to the court will have a say in the case, including brand-new Judge Emil Bove, a controversial former Justice Department official and a close ally of Trump who also knows Habba personally. The panel also excludes all of the court’s New Jersey-based judges, one of whom is Bove.
Habba, Trump’s former personal lawyer, was appointed to the post of interim U.S. Attorney in March, and when her 120-day tenure ran out in July without Senate confirmation, the Trump administration executed an extraordinary set of maneuvers to keep her in office. After New Jersey’s District Court judges voted to appoint a career prosecutor to replace Habba once her term ended, the Trump administration fired their pick and appointed Habba as First Assistant U.S. Attorney, allowing her to be elevated to the role of acting U.S. Attorney by default.
The maneuvers, designed to get around the typical checks-and-balances imposed by the Senate and the federal judiciary, met with swift blowback. Two New Jersey defendants with cases pending in federal court sued to strip Habba of her authority, saying she was illegitimately appointed and could not legally prosecute them; in a momentous ruling, District Judge Matthew Brann agreed with them, finding that the Trump administration had run afoul of appointment laws in several ways and that Habba lacked authority as U.S. Attorney.
Brann, however, stayed his own ruling pending appeal, leaving Habba in limbo and causing the federal justice system in New Jersey to grind to a halt.
In its appeal, the Trump administration is hoping that Restrepo, Fisher, and Smith will be more receptive to their arguments than Brann was: that the president, ultimately, has the power to choose U.S. Attorneys as he sees fit, and anything else amounts to judicial interference.
“The President has made clear that he will not permit anyone other than Ms. Habba to fill the current vacancy in the office of the United States Attorney on a temporary basis,” the Justice Department stated during the initial District Court proceedings. “That is his prerogative; this Court cannot second-guess it.”
