Donald Trump’s former personal lawyer Alina Habba, whom his administration has maneuvered to keep in the post of New Jersey’s top federal prosecutor, is ineligible to serve in the role, an appeals court said Monday.
A panel of judges from the 3rd U.S. Circuit Court of Appeals, sitting in Philadelphia, supported the lower court judge’s decision after hearing oral arguments, at which Hubba himself was present, on October 20.
“It is clear that the current Administration has been frustrated by certain legal and political obstacles in achieving its appointments. Its efforts to promote its preferred candidate, Alina Hubba, to the role of Acting U.S. Attorney for the District of New Jersey, demonstrate the difficulties it has faced – yet the citizens of New Jersey and the loyal staff in the U.S. Attorney’s Office deserve some clarity and stability,” the court wrote in a 32-page opinion.
It concluded: “We will affirm the district court’s disqualification order.”
The decision comes amid pressure from Trump’s Republican administration to retain Hubbard as acting U.S. attorney for New Jersey, a powerful position charged with enforcing federal criminal and civil laws. This comes even as the judges questioned the government’s actions in allowing Habba’s interim appointment to expire and keeping him in office without receiving Senate confirmation.
Hubba said in a statement posted to
Messages were left Monday seeking comment from the U.S. Attorney’s Office in New Jersey, Hubba’s personal staff and the Justice Department.
Hubbard is hardly the only Trump administration prosecutor whose appointment has been challenged by defense lawyers.
Last week, a federal judge dismissed the criminal cases against former FBI Director James Comey and New York Attorney General Letitia James after concluding that Lindsay Halligan, the hastily installed prosecutor who filed the charges, was unlawfully appointed to the position of interim U.S. attorney for the Eastern District of Virginia. The Justice Department has said it intends to appeal the decision.
The panel included two judges appointed by Republican President George W. Bush, D. Brooks Smith and D. Michael Fischer – as well as one judge nominated by Democratic President Barack Obama, Luis Felipe Restrepo.
A lower court judge ruled in August that Hubba’s appointment was accompanied by “a new series of legal and personnel steps” — and that she was not legally serving as U.S. attorney for New Jersey.
That order said his actions could be invalidated from July, but it stayed the order pending an appeal.
The government argued that Hubba was lawfully serving in the role under the federal statute allowing first assistant counsel, a position to which she was appointed by the Trump administration.
A similar situation is playing out in Nevada, where a federal judge disqualified the person chosen by the Trump administration as US attorney.
The Hubba case comes after several people accused of federal crimes in New Jersey challenged the validity of Hubba’s tenure. He sought to halt the charges, arguing that he no longer had the authority to prosecute their cases after his 120-day term as interim US attorney ended.
Hubbard was Trump’s attorney in criminal and civil proceedings before he was elected to a second term. He briefly served as a White House adviser before Trump nominated him as a federal prosecutor in March.
Shortly after his appointment, he said in an interview with right-wing influencers that he hoped to help “make New Jersey red”, a rare direct political expression from a prosecutor.
He then filed a charge of trespassing against Democratic Newark Mayor Ras Baraka over a visit to a federal immigration detention center, which was ultimately dropped.
Hubbard later charged Democratic U.S. House member LaMonica McIver with assault stemming from the same incident, a rare federal criminal case against a sitting member of Congress other than corruption. McIver denied the charges and pleaded not guilty. The matter is pending.
Questions about whether Hubba would remain in the job arose in July when his temporary appointment was expiring and it became clear that New Jersey’s two Democratic U.S. senators, Cory Booker and Andy Kim, would not support his appointment.
Earlier this year as his appointment was expiring, federal judges in New Jersey used their power under law to replace Hubba with a career prosecutor, who had served as his second-in-command.
Bondi then removed the judge-installed prosecutor and renamed Hubba the acting U.S. attorney. The Justice Department said the judges acted prematurely and said Trump had the authority to appoint his preferred candidate to enforce federal laws in the state.
Brann’s decision states that presidential appointments are still subject to term limits and power-sharing rules set in federal law.
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