Trump’s efforts to keep Alina Habba the top prosecutor in N.J. aren’t legal, a Philly federal appeals court rules

A federal appeals court in Philadelphia ruled Monday that President Donald Trump’s attempts to keep his former personal lawyer Alina Habba as New Jersey’s U.S. attorney have been illegal.

The decision was unanimous from a Third Circuit Court of Appeals panel of three judges, including two appointed by former Republican President George W. Bush and one appointed by former Democratic President Barack Obama.

It supports a federal district court judge’s ruling in August that determined the Trump administration kept Habba in her powerful role unlawfully since her temporary term expired in July. The top federal law enforcement role in the state is charged with enforcing U.S. criminal and civil law.

The Monday ruling is the first federal appeals court decision on Trump’s efforts to sidestep the Senate confirmation process for U.S. attorneys.

That makes it “critically important,” said Carl Tobias, a professor at the University of Richmond School of Law who specializes in federal judicial selection.

The Trump administration can either bring the case to the Supreme Court or petition for all the appeal court’s judges to hold a rehearing through a rare process, he said.

“I assume the Justice Department will ... go to the Supreme Court, ask for a stay and continue to litigate it,” Tobias said. “Whether the justices will take it is not clear.”

Trump nominated Habba to the role in March through an interim appointment that was supposed to last no more than 120 days.

Wanting to instill his loyalist for a full four-year term, the president sent Habba’s name to the Senate over the summer for confirmation. But U.S. Sens. Andy Kim and Cory Booker, both New Jersey Democrats, said they opposed Habba in the position in part because she lacked experience and politicized the office.

The Senate traditionally defers to the home state senators for these nominations, putting that path out of the picture.

The two Democratic senators said in a joint statement Monday afternoon that the appeals court decision “vindicates concerns we have long raised about the extraordinary and unlawful steps taken by the Trump Administration to keep Habba in office without Senate confirmation.”

Kim and Booker urged Trump’s administration to “follow the long-established process” to “restore public trust” in the position.

Judge D. Michael Fisher, a Bush appointee, acknowledged that “the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place” in the panel’s Monday opinion.

“Where a vacancy exists, Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office,” he also stated in the roughly 30-page appellate court opinion.

New Jerseyans and U.S. attorney employees “deserve some clarity and stability,” the opinion also said.

Some criminal cases have slowed down and some grand jury proceedings have been halted in New Jersey’s federal courts due to Habba’s unclear status, the New York Times reported.

Habba had no prosecutorial experience prior to her appointment and most of her experience was in state courts, not federal. She represented Trump in personal cases before his second term and was involved in both his campaign and administration prior to her appointment. She previously worked as a partner in a small law firm near his Bedminster golf course.

She said after her appointment that she wanted to help “turn New Jersey red” in her role, which is supposed to be apolitical.

As the clock was slated to run out on Habba’s limited term, federal judges in New Jersey appointed her first assistant and longtime prosecutor Desiree Leigh Grace to replace her. In response, U.S. Attorney General Pam Bondi quickly fired Grace from the post and reinstated Habba through maneuvers that Trump’s administration argued were allowed.

In the role, Habba brought a trespassing charge against Newark Mayor Ras Baraka, a gubernatorial candidate at the time, who was arrested outside an ICE facility. Those charges were quickly dropped, drawing a scolding from a federal judge who called the situation “worrisome” and “embarrassing” for Habba.

Habba later charged Democratic U.S. Rep. Monica McIver with assault stemming from the same scuffle with ICE officers, a rare federal criminal case against a sitting member of Congress other than for corruption. McIver denied the charges, which she has called political. She pleaded not guilty and the case is pending.

New Jersey Gov.-elect Mikie Sherrill said in a statement that the judges’ decision “makes clear that the rule of law applies to everyone, regardless of who they are.”

“The Trump administration should not be playing political games with the U.S. Attorney’s Office,” she said. “We need a new candidate in that post as soon as possible, so the office can focus on serving the people of New Jersey, not the president.”

Trump and Habba took another blow in an Atlanta-based appeals court last week when it upheld penalties nearing $1 million against them for making “frivolous” legal arguments against his political enemies.

Trump is running into similar roadblocks elsewhere in his pursuit of instilling loyalists into prosecutorial positions and sidestepping Senate approval.

Last week, a federal judge dismissed criminal cases against former FBI Director James Comey and New York Attorney General Letitia James after determining that the U.S. attorney for the Eastern District of Virginia, who brought the charges in both cases at Trump’s urging, was unlawfully appointed by his administration.

The U.S. Justice Department has not yet publicly commented on that matter.

In September in Nevada, the Trump administration was found to have kept the acting U.S. attorney in her position for too long. In October, a federal judge ruled the same for the pick in Los Angeles.

The Associated Press contributed to this article.