DOJ uses this maneuver to keep top federal prosecutors on the job, even after judges reject them
The U.S. Department of Justice is defending the validity of its decision to appoint Alina Habba as the acting U.S. attorney in New Jersey by first designating her as a “special attorney,” one of several efforts around the country to keep top prosecutor picks in place without U.S. Senate confirmation.
Habba is among four lawyers named as acting U.S. attorneys without confirmation by the Senate or appointment by a panel of federal judges authorized to act when an interim appointment expires, the Los Angeles Times reports.
The moves signal “the Trump administration’s willingness to use legal workarounds to keep its appointees for U.S. attorney in power as the clock runs out on their interim status,” the article explains.
The three other lawyers given acting U.S. attorney status are in the Northern District of New York, the District of Nevada and the Central District of California.
Habba had been serving as the interim U.S. attorney in New Jersey, a position that lasts for 120 days or until Senate confirmation of a new nominee. After Habba resigned her interim position, federal judges appointed a career prosecutor as her replacement on July 22.
The new appointee was promptly fired by the Trump administration.
Habba was instead named the acting U.S. attorney using a procedure under the Federal Vacancies Reform Act in which a first assistant U.S. attorney can be elevated to acting U.S. attorney when the office is vacant, the DOJ indicated in a July 29 court filing noted by the Volokh Conspiracy.
The department named Habba the first assistant before elevating her to the acting position and also used a backup designation, the response said. She was appointed as a “special attorney to the attorney general of the United States” and directed to supervise the U.S. attorney’s office in New Jersey.
The court filing opposed a motion by two New Jersey defendants to bar their prosecution or dismiss their indictment based on an argument that Habba wasn’t properly appointed as the acting U.S. attorney. Questions about the validity of Habba’s appointment have also led to canceled plea deals and the pausing of grand jury proceedings, the New York Times reports.
Besides Habba, the acting U.S. attorneys given unusual appointments are:
• John Sarcone III, who was rejected by a panel of federal judges as the U.S. attorney for the Northern District of New York after his interim term expired. He was named a “special attorney to the attorney general” and given the same powers as a U.S. attorney, according to previous reporting by the ABA Journal. He later said in a letter he was designated as the first assistant U.S. attorney and was now “indefinitely” serving as the acting U.S. attorney, according to the Los Angeles Times.
Sigal Chattah, left, in Las Vegas in March 2024. (Photo by Wade Vandervort/The Las Vegas Sun via the Associated Press)
• Sigal Chattah, who resigned from her position as the interim U.S. attorney for the District of Nevada shortly before the 120-day deadline expired, Bloomberg Law reports. She was appointed as a special attorney to the attorney general, as well as the acting U.S. attorney, she told KLAS. Nevada’s two Democratic senators have opposed her appointment.
• Bilal A. “Bill” Essayli, who had served as the interim U.S. attorney for the Central District of California but was reportedly rejected for the permanent job by a federal judicial panel. If he had been nominated, he would have faced “fierce opposition” from California’s two Democratic senators, the Los Angeles Times reports.
Laurie Levenson, a professor at the Loyola Marymount University’s Loyola Law School in Los Angeles, told the Los Angeles Times that the Trump administration was exploiting a legal loophole.
“These laws have never been used, as far as I can see, to bypass the Senate confirmation process or the judicial one,” Levenson said. Consequences could include “indictments that are not valid because they weren’t signed by a lawful U.S. attorney.”
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