President Donald Trump is testing restraints on his power to hire and fire, which is worth doing in many cases but raises hard questions in others. Consider his maneuvers to retain Alina Habba as New Jersey’s top federal prosecutor, despite the Senate’s refusal to hold a vote on confirming her.
A federal judge recently said Habba has acted “without lawful authority” since July 1.
“Her actions since that point may be declared void,” Judge Matthew Brann ruled. The decision draws from the Federal Vacancies Reform Act, which restricts how the president can temporarily fill an office that requires Senate confirmation. “This framework is designed to carefully balance the separation of powers,” Judge Brann said. He stayed his ruling pending appeal, but another judge has delayed sentencing of a defendant in Habba’s district, and there could be more to come.
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Trump in March first named Habba, his former personal lawyer, as interim U.S. attorney, a short-term appointment that may last 120 days to fill a vacancy. Trump also formally nominated Habba for full confirmation, but New Jersey’s senators opposed her, and the Judiciary Committee never acted.
When this kind of interim appointment expires, the law says the district court may choose someone to fill the vacancy. Rather than extend Habba, who made herself controversial, the judges issued an order to elevate the office’s first assistant prosecutor, Desiree Grace, to be the U.S. attorney.
The Trump administration responded with bureaucratic jiu jitsu. The White House terminated Grace. Habba resigned as interim U.S. attorney, and her nomination to the Senate was withdrawn. The Justice Department instead named Habba as a “special attorney,” while designating her as the New Jersey office’s new first assistant.
Voilà, under the vacancy law, according to the administration, Habba is back in charge as acting U.S. attorney. Trump has used similar methods to retain prosecutors John Sarcone (New York), Bill Essayli (California), Sigal Chattah (Nevada) and Ryan Ellison (New Mexico), despite no Senate confirmation.
In Judge Brann’s view, “a ‘first assistant’ who may take office in an ‘acting capacity’ must be the first assistant at the time the vacancy occurs.” Otherwise, the president could name anybody at any time. Judge Brann says “repeat appointments” of interim U.S. attorneys aren’t allowed either. But the vacancy statutes are complicated, and maybe the Trump administration will win its argument on appeal that such workarounds satisfy the letter of the law.
The worry is that such machinations might become routine to evade Senate confirmation. If the White House can repeatedly name an interim U.S. attorney, or wait until shortly before that term expires to effect a transformation into acting U.S. attorney, then the new partisan game will be to see how long an incoming president can operate the government while dodging Senate confirmation.
Why didn’t the Senate move on Habba’s nomination? The Judiciary Committee traditionally defers to senators’ views, expressed with a “blue slip,” regarding appointees for federal judge or prosecutor in their home states. New Jersey’s two Democratic senators object to Habba, who is prosecuting Democratic Rep. LaMonica McIver over a scuffle at an immigration detention site. “We could turn New Jersey red,” Habba said in March, adding that she hoped to use her office to “help that cause.”
The blue-slip tradition serves Republicans when they’re out of power, and it tends to encourage presidents to pick qualified and scrupulous lawyers for these posts. ... That doesn’t mean it can’t be abused, and Sen. Chuck Grassley, who leads the Judiciary Committee, stopped letting senators block appellate judges in 2017. Trump has every right to fume about the custom and force senators to defend it.
Blue slips are “an old and outdated ‘custom,’” Trump said online Sunday. “Chuck Grassley should allow strong Republican candidates to ascend to these very vital and powerful roles, and tell the Democrats, as they often tell us, to go to HELL!” Yet that’s up to the Senate, and the Founders gave the chamber its advise-and-consent power for a reason.
By trying to circumvent it, including his maneuvers for Habba and his demands for recess appointments, Trump is setting a precedent that could come back to bite Republicans.
