The Trump administration suffered its latest loss in a series of failures to install its preferred lawyers atop the nation’s U.S. attorney’s offices without Senate confirmation. The most recent rejection came from a majority of the judges on the federal appeals court covering New Jersey, where the administration had sought to place Alina Habba as head of that district’s office.
A judge had ruled in August that Habba, a former personal lawyer for Donald Trump, was unlawfully serving in that prosecutorial post. A three-judge appellate panel upheld the ruling last month, while observing that it was “apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place.”
The administration then pressed for a rehearing from the full complement of judges on the Philadelphia-based appeals court, arguing that the three-judge panel’s legal interpretation “would hobble Presidential transitions and has been routinely violated by the last four administrations without any court holding the practice unlawful.” Although Habba stepped down after the panel’s ruling (and moved to a different position at the Justice Department), the administration said that didn’t moot the issue, noting that she intended to return to the U.S. attorney’s office if the decision were reversed.
On Monday, a majority of the appeals court rejected rehearing, over dissent from three judges appointed by Trump. Notably, that didn’t include Emil Bove, one of the president’s appointees to the appeals court, who attended a Trump rally last month. Bove wasn’t listed among the judges who participated in the rehearing decision. He may have been involved in the matter on the administration’s behalf when he was at the Justice Department prior to his judicial appointment, so if his apparent lack of participation indicates a recusal, then that could be why.
In addition to noting that three judges would have granted rehearing, Monday’s order said that one of the judges, Jennifer Mascott, who worked for the administration prior to her judicial appointment, would file a dissent on a later, unspecified date.
The administration likely is eagerly awaiting her dissent, as it could provide a road map for a further appeal to the Supreme Court, where the justices could weigh in on the issue affecting U.S. attorney’s offices across the country.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
