Alina Habba’s tenure as the not-really-U.S. Attorney for the District of New Jersey reached another predictable milestone today as Judge Matthew Brann disqualified Habba from a criminal prosecution on the grounds that she doesn’t actually have the job in any legal sense.
Brann, the chief judge of the Middle District of Pennsylvania, heard the case by designation since all the judges from the New Jersey District already chose a different U.S. Attorney. Over the course of a 77-page opinion, the judge explained that Habba, Trump’s favorite parking garage lawyer, was never actually the U.S. Attorney in the first place and has been unlawfully squatting in the office since July 1.
The precise date that Habba transformed into a proverbial pumpkin is convoluted, but somewhere between the beginning and end of July, Habba’s interim appointment came to an end while her formal nomination stalled in the Senate. Believing the conclusion of her appointment to end toward the end of July, and with no replacement legally appointed, the judges of the district of New Jersey appointed Desiree Grace, who happened to be Habba’s assistant at the time.
The Trump administration initiated a series of Rube Goldberg staffing gimmicks in a bid to return Habba to the job. Attorney General Pam Bondi promptly fired Grace in order to keep Habba in the job despite the fact that this (a) had zilch to do with Grace’s legal appointment and (b) wouldn’t return Habba to the job even if it did. Since Trump had nominated Habba for the permanent job, she was ineligible under the Federal Vacancies Reform Act to serve as Acting U.S. Attorney, so they pulled her nomination. But only after naming her as her own assistant so she would ascend to her own job when she resigned it before it technically expired, meaning there would be no vacancy for Grace to fill. And, for good measure, Trump purported to fire Grace again — this time from the U.S. Attorney appointment that the administration claims never even happened. Make sense?
Untangling the factual record, Brann did find one error on the part of the Jersey judges: they let Habba hang around illegally for too long.
My analysis generally proceeds in chronological order. First, I consider whether Ms. Habba’s tenure as Interim United States Attorney pursuant to 28 U.S.C. § 546, which began on March 28, 2025, lawfully continued until July 24, 2025, when she purported to resign, and conclude that it did not. As I interpret the law, her interim appointment ended on July 1, 2025—120 days after Attorney General Bondi invoked her power under section 546(a) by appointing Mr. Giordano Interim United States Attorney on March 3, 2025. Thus, Ms. Habba was not lawfully acting as the United States Attorney in any capacity from July 1, 2025 until at least July 24, 2025.
Judge Brann — who despite being an Obama nominee is a Republican with ties to the Federalist Society and the NRA — delivered an ode of originalist jurisprudence, guiding the reader through the “American revolutionary generation’s” understanding of the Appointments Clause and their concern that a corrupt idiot might use the White House to give patronage jobs to unqualified hacks.
A prescient bunch.
That said, Brann doesn’t end up ruling on constitutional grounds because the statutory arguments resolved everything.
Continuing by noting that her backdoor effort to take the job as her own assistant made no sense. Running through the Republican judicial greatest hits, Brann takes a meticulously textualist stab at the relevant statutes and decided:
The Government protests that the appointment referred to in section 546(c)’s “chapeau”—“a person appointed”—should carry through to the “appointment” referred to section 546(c)(2). But that reading strains the text for three reasons. First, it transforms the indefinite article in the chapeau into a definite article or pronoun that is unstated in section 546(c)(2), rewriting the unmodified term “appointment” as “her appointment” or “that appointment.” Second, both the chapeau and subsection (c)(2) describe an appointment “under this section.” If subsection (c)(2)’s bar is limited to the appointment described in (c), then restating “under this section” is redundant because that is the only type of appointment to which it could apply. But courts should give “‘every clause and word of a statute’ . . . meaning.” Giving meaning to the second use of “under this section” indicates that that subsection (c)(2) refers more broadly to any appointment “under this section.” And third, the chapeau clearly does not modify the other barring provision in section 546(c)(1), which is indisputably benchmarked to an event unrelated to any specific person’s interim appointment: Senate confirmation of the President’s nominee. Had Congress wanted the 120 day clock to run on a per-appointee basis, it could easily have written the statute to place the bar of subsection (c)(2) first and written it as “the expiration of 120 days after her appointment.” Congress’s choice not to so define the appointment in subsection (c)(2) is meaningful, and the Court will not redraft the text.
As to the theory that the administration could just appoint Habba as an assistant to succeed to the job, Brann invokes the canons of construction to point out that this reading would “render the limits in subsections (a)(2) and (a)(3) surplusage in the vast majority of cases.”
The government tried arguing, “well, what if Habba is just a special prosecutor with the powers of the U.S. Attorney” and Judge Brann strained a muscle to avoid writing “are you fucking kidding me with this right now?”
Alas, the ruling was a Pyrrhic victory for the criminal defendants. Despite determining that Habba was illegally cosplaying as U.S. Attorney when she signed the indictment, Brann ruled that this doesn’t require dismissing the charges because it’s a harmless technical deficiency and any government lawyer willing to vouch for the authenticity of the document will do.
But Habba is disqualified from the case and any attorney prosecuting the case under her direction will be similarly disqualified. Thankfully, she can still go on Newsmax to complain about how these woke Federalist Society judges are out to get her.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Alina Habba Can’t Pretend To Be U.S. Attorney Anymore appeared first on Above the Law.
Alina Habba’s tenure as the not-really-U.S. Attorney for the District of New Jersey reached another predictable milestone today as Judge Matthew Brann disqualified Habba from a criminal prosecution on the grounds that she doesn’t actually have the job in any legal sense.
Brann, the chief judge of the Middle District of Pennsylvania, heard the case by designation since all the judges from the New Jersey District already chose a different U.S. Attorney. Over the course of a 77-page opinion, the judge explained that Habba, Trump’s favorite parking garage lawyer, was never actually the U.S. Attorney in the first place and has been unlawfully squatting in the office since July 1.
The precise date that Habba transformed into a proverbial pumpkin is convoluted, but somewhere between the beginning and end of July, Habba’s interim appointment came to an end while her formal nomination stalled in the Senate. Believing the conclusion of her appointment to end toward the end of July, and with no replacement legally appointed, the judges of the district of New Jersey appointed Desiree Grace, who happened to be Habba’s assistant at the time.
The Trump administration initiated a series of Rube Goldberg staffing gimmicks in a bid to return Habba to the job. Attorney General Pam Bondi promptly fired Grace in order to keep Habba in the job despite the fact that this (a) had zilch to do with Grace’s legal appointment and (b) wouldn’t return Habba to the job even if it did. Since Trump had nominated Habba for the permanent job, she was ineligible under the Federal Vacancies Reform Act to serve as Acting U.S. Attorney, so they pulled her nomination. But only after naming her as her own assistant so she would ascend to her own job when she resigned it before it technically expired, meaning there would be no vacancy for Grace to fill. And, for good measure, Trump purported to fire Grace again — this time from the U.S. Attorney appointment that the administration claims never even happened. Make sense?
Untangling the factual record, Brann did find one error on the part of the Jersey judges: they let Habba hang around illegally for too long.
My analysis generally proceeds in chronological order. First, I consider whether Ms. Habba’s tenure as Interim United States Attorney pursuant to 28 U.S.C. § 546, which began on March 28, 2025, lawfully continued until July 24, 2025, when she purported to resign, and conclude that it did not. As I interpret the law, her interim appointment ended on July 1, 2025—120 days after Attorney General Bondi invoked her power under section 546(a) by appointing Mr. Giordano Interim United States Attorney on March 3, 2025. Thus, Ms. Habba was not lawfully acting as the United States Attorney in any capacity from July 1, 2025 until at least July 24, 2025.
Judge Brann — who despite being an Obama nominee is a Republican with ties to the Federalist Society and the NRA — delivered an ode of originalist jurisprudence, guiding the reader through the “American revolutionary generation’s” understanding of the Appointments Clause and their concern that a corrupt idiot might use the White House to give patronage jobs to unqualified hacks.
A prescient bunch.
That said, Brann doesn’t end up ruling on constitutional grounds because the statutory arguments resolved everything.
Continuing by noting that her backdoor effort to take the job as her own assistant made no sense. Running through the Republican judicial greatest hits, Brann takes a meticulously textualist stab at the relevant statutes and decided:
The Government protests that the appointment referred to in section 546(c)’s “chapeau”—“a person appointed”—should carry through to the “appointment” referred to section 546(c)(2). But that reading strains the text for three reasons. First, it transforms the indefinite article in the chapeau into a definite article or pronoun that is unstated in section 546(c)(2), rewriting the unmodified term “appointment” as “her appointment” or “that appointment.” Second, both the chapeau and subsection (c)(2) describe an appointment “under this section.” If subsection (c)(2)’s bar is limited to the appointment described in (c), then restating “under this section” is redundant because that is the only type of appointment to which it could apply. But courts should give “‘every clause and word of a statute’ . . . meaning.” Giving meaning to the second use of “under this section” indicates that that subsection (c)(2) refers more broadly to any appointment “under this section.” And third, the chapeau clearly does not modify the other barring provision in section 546(c)(1), which is indisputably benchmarked to an event unrelated to any specific person’s interim appointment: Senate confirmation of the President’s nominee. Had Congress wanted the 120 day clock to run on a per-appointee basis, it could easily have written the statute to place the bar of subsection (c)(2) first and written it as “the expiration of 120 days after her appointment.” Congress’s choice not to so define the appointment in subsection (c)(2) is meaningful, and the Court will not redraft the text.
As to the theory that the administration could just appoint Habba as an assistant to succeed to the job, Brann invokes the canons of construction to point out that this reading would “render the limits in subsections (a)(2) and (a)(3) surplusage in the vast majority of cases.”
The government tried arguing, “well, what if Habba is just a special prosecutor with the powers of the U.S. Attorney” and Judge Brann strained a muscle to avoid writing “are you fucking kidding me with this right now?”
Alas, the ruling was a Pyrrhic victory for the criminal defendants. Despite determining that Habba was illegally cosplaying as U.S. Attorney when she signed the indictment, Brann ruled that this doesn’t require dismissing the charges because it’s a harmless technical deficiency and any government lawyer willing to vouch for the authenticity of the document will do.
But Habba is disqualified from the case and any attorney prosecuting the case under her direction will be similarly disqualified. Thankfully, she can still go on Newsmax to complain about how these woke Federalist Society judges are out to get her.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
