All the President’s Lawyers Redux: Ultra Vires U.S. Attorneys
Alina Habba, Acting U.S. Attorney for the District of New Jersey.
While many recent news stories have criticized the politicized prosecutions announced by President Trump’s Department of Justice, a related story has received comparatively little attention.
A DOJ that answers directly to the president requires the agency’s highest ranks to be staffed by allies (or sycophants) willing to submit to presidential commands. This includes the U.S. Attorneys vested with the authority to prosecute these cases. However, U.S. Attorneys are also all subject to advice and consent of the Senate. And before the full Senate even considers nominations for U.S. Attorney positions, the Senate’s “blue slip” tradition functionally requires home-state senators to approve the nominees.[1]
In the past couple months, defendants have challenged three of President Trump’s picks for U.S. Attorney positions, all acting in temporary capacities without Senate confirmation, for exceeding their statutory authority to serve in their temporary positions. The defendants have so far succeeded in their challenges against Alina Habba (District of New Jersey) and Sigal Chattah (District of Nevada), and a decision in a case against Bill Essayl (Central District of California) is impending.
To understand the stakes of these legal disputes, we can look to the consolidated cases against Alina Habba, captioned United States v. Giraud.[2] The defendants in one of the cases were indicted by a grand jury on drug and firearm offenses in November 2024, under then-U.S. Attorney Philip Sellinger. Habba signed the indictment of the defendant in the second case, charging him with wire fraud, money laundering, and bribery on July 7, 2025.
While the first case was still ongoing, Sellinger resigned following the transition to President Trump’s administration. It is customary to cede this position to the new administration’s nominee. President Trump nominated Habba to the office on March 24, 2025, in the meantime naming her interim U.S. Attorney while her full nomination was subject to the advice and consent of the Senate. She was formally sworn in on March 28.
Presidents are permitted—acting through their Attorney General—to name interim U.S. Attorneys under 28 U.S.C. § 546(a) whenever an office is vacant. The statute allows Presidents to fill the office without satisfying the full advice and consent requirements, giving the President needed flexibility to fill this important position upon becoming vacant. However, § 546(a) appointments are also time limited to the earlier of the Senate’s confirmation of a nominee to the full position or the “expiration of 120 days after appointment by the Attorney General.”
When a § 546(a) appointment’s 120-day limit expires without Senate confirmation of a nominee to the full position, two other mechanisms exist to fill the vacancy on a temporary basis. First, 28 U.S.C. § 546(d) permits the “district court for such district [to] appoint a United States attorney to serve until the vacancy is filled.”
Otherwise, the position may be filled under 5 U.S.C. § 3345(a)(1) of the Federal Vacancies Reform Act, which provides that when “an officer of an Executive agency . . . whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate [is vacated], the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.”[3] Alternatively, “the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate,” or “an officer or employee of such Executive agency” who “during the 365-day period preceding the [vacancy] . . . served in a position in such agency for not less than 90 days” and had a rate of pay at the level of GS-15 or higher, “to perform the functions and duties of the vacant office temporarily in an acting capacity” under 5 U.S.C. § 3345(a)(2)–(3).
In either case, the acting officer is limited to serving “for no longer than 210 days beginning on the date the vacancy occurs” (5 U.S.C. § 3346(a)(1)), subject to two additional 210-day terms if the “first [and second] nomination[s] for the office [are] rejected by the Senate, withdrawn, or returned to the President by the Senate” (§ 3346(b)). Moreover, § 3345(b)(1) bars from serving as an acting officer anyone who “during the 365-day period preceding the [vacancy]” either “did not serve in the position of first assistant to the office of such office” or “served in the position of first assistant to the office of such officer for less than 90 days,” subject to some exceptions.
Importantly, § 546 and § 3345 provide the only statutory mechanisms through which to appoint a U.S. Attorney on a temporary basis: “Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless a statutory provision [§ 546] expressly authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity” (5 U.S.C § 3347(a)(1)(A)).
With this statutory background in mind, the judges of the U.S. District Court for the District of New Jersey exercised their § 546(d) authority to appoint Desiree Grace as the interim U.S. Attorney on July 22, 120 days after President Trump first announced Habba was appointed. To hedge the ambiguity as to the expiration date of Habba’s term, the judges’ order designated the appointment effective “July 22, 2025 or ‘upon the expiration of 120 days after appointment by the Attorney General’ of the Interim U.S. Attorney Alina Habba, whichever is later.”
As Judge Brann stated in his opinion, “Trump Administration officials were not pleased with that appointment,” and accused the judges of forcing Habba out of her office. The appointment of Grace set off a series of personnel maneuvers within the DOJ, the legality of which were the focus of the case.
First, Attorney General Pam Bondi purported to fire Grace the same day she was appointed by the judges. Then on July 24, the Trump Administration made five subsequent moves: (1) Habba’s full nomination for U.S. Attorney was withdrawn; (2) Habba resigned from her Interim U.S. Attorney position; (3) AG Bondi appointed Habba as a “Special Attorney to the Attorney General” pursuant to general delegation statutes, and “authorized [her] to conduct in the District of New Jersey, any kind of legal proceedings, civil or criminal, including Grand Jury proceedings and proceedings before United States Magistrates, which United States Attorneys are authorized to conduct”; (4) AG Bondi appointed Habba to the position of First Assistant U.S. Attorney; (5) Habba was, according to the Government, “automatically elevated to the position of Acting United States Attorney” pursuant to § 3345(a)(1).
Despite all these maneuvers, Judge Brann held that Habba’s § 546(a) appointment expired on July 1, 2025, three weeks before any of these moves took place. Judge Brann interpreted § 546(c)’s 120-day limit as an aggregate limit for all appointments made pursuant to § 546(a). Habba was in fact not the first person appointed under this statutory authority. John Giordano was first appointed as Interim U.S. Attorney under § 546(a) on March 3, 2025, before being replaced by Habba on March 28. The 120-day limit began tolling on March 3 and therefore expired on July 1. Consequently, Habba was acting without statutory authority from at least July 1 through July 24.
Judge Brann reasoned that this reading of the statute was compelled by its text, but also by the “statutory context” of the 120-day limit. “Congress provided next steps for keeping the United States Attorney’s office filled when the 120-day clock runs out,” noted Judge Brann. Specifically, § 546(d) authorizes the district court to make an appointment at the expiration of the 120-day limit. More importantly, an alternate reading advanced by the Government that interprets the 120-day limit to toll separately for individual appointments would allow the President to forestall triggering § 546(d) “by terminating every section 546(a) appointment on its 119th day. Taken to the extreme, the President could use this method to staff the United States Attorney’s office with individuals of his personal choice for an entire term without seeking the Senate’s advice and consent.”
With the § 546 issue disposed of, Judge Brann next looked to the purported appointment of Habba under § 3345 pursuant to the Trump Administration’s July 24 maneuvers. Judge Brann interpreted § 3345(a)(1) to mean that a “first assistant may assume a vacant office in an acting capacity . . . only at the moment that the vacancy occurs . . . [A] person who takes the first assistant office during the vacancy’s pendency [like Habba] does not take the acting role in the vacant office.” The vacancy and first assistant provisions of § 3345(a) “function in a simple if-then form,” reasoned Judge Brann. The vacancy provision provides the “triggering condition,” and the first assistant provision “sets the mandatory condition that follows.” Therefore, “the promotion of the first assistant occurs automatically at the moment of the vacancy.” Habba, who first resigned and was only then appointed to the position of First Assistant U.S. Attorney, therefore could not have occupied the § 3345(a) “first assistant” position at the time of the vacancy.
Here again, text and, primarily, statutory context compel this reading, according to Judge Brann. Permitting appointments in the manner the Government attempted with Habba “render[s] the limits in subsections (a)(2) and (a)(3) surplusage in the vast majority of cases.” These provisions “set a very high bar” for the officials that can assume the acting position through this mechanism: They must either have been already confirmed by the Senate for another position or have worked in the agency at the GS-15 level for at least ninety days preceding the vacancy. “But if the President may simply name anyone as the first assistant at any time and thereby vest them with acting powers, these limitations on acting service are rendered entirely irrelevant.”
The Government nonetheless asserted one final theory: Habba may “perform the functions and duties of the office of the United States Attorney through her appointment as a Special Attorney vested with the powers of a United States Attorney” pursuant to a number of statutes vesting the duties of the DOJ in the Attorney General, and granting the Attorney General power to delegate those duties.
But what the Government contended is a “narrow delegation” is in reality a much more sweeping delegation of the “full panoply of powers” of a U.S. Attorney, according to Judge Brann. Habba’s own appointment letter vested her with the authority “to conduct in the District of New Jersey, any kind of legal proceedings, civil or criminal, including Grand Jury proceedings and proceedings before United States Magistrates, which United States Attorneys are authorized to conduct” without any apparent limitation. The Government “[n]ever indicated that Ms. Habba would lack authority to supervise any matter at all,” but instead repeatedly indicated that Habba would have “the authority to supervise all pending prosecutions and other matters in the USAO-NJ . . . . It is clear from the record that the Attorney General is using her power of delegation to make Ms. Habba the United States Attorney.”
Since § 3345, and § 546 by incorporation, provide the exclusive means through which to appoint temporary U.S. Attorneys, “general vesting and delegation statutes” do not suffice to accomplish the same ends. Section 3345’s “exclusivity provision was enacted for the express purpose of precluding the exact argument that the Government presses here.” Consequently, Habba was acting ultra vires not only from July 1 through July 24, but also for every day thereafter. Judge Brann then disqualified Habba from participating in or supervising the prosecutions of the defendants in the consolidated cases, a holding that naturally extends to all other cases Habba may attempt to work on.
* * *
Habba appealed the district court’s judgment, and the case is currently being considered by the Third Circuit. Oral arguments were heard on Monday, October 20. What is at stake in this case and the others are foundational principles of separation of powers and the limits of executive power.
As Judge Brann prefaced his discussion, “[t]he ‘manipulation of official appointments’ had long been one of the American revolutionary generation’s greatest grievances against executive power, because ‘the power of appointment to offices’ was deemed ‘the most insidious and powerful weapon of eighteenth century despotism.’”[4] That sentiment is what prompted the Framers to include the Appointments Clause in the Constitution. The Senate’s advice and consent power acts as a structural safeguard that “protect[s] against unilateral appointment by the President of ‘candidates who have no other merit than that of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’”[5] Only Congress has the constitutional power to authorize deviations from this constitutional default by “vest[ing] the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”[6]
The Trump Administration’s interpretations of the relevant statutes “would permit the Executive to perpetually install an individual the Senate has not confirmed, and likely would not confirm, as the head of a U.S. Attorney’s Office.”[7] The opening of this article illuminates the costs of this interpretation: the enablement of a DOJ of sycophants subservient to direct presidential intervention and direction. Exercising such control allows presidents to push prosecutions of political enemies and degrade the legitimacy of the DOJ.
Consider the appointment of Lindsey Halligan as Interim U.S. Attorney for the Eastern District of Virginia. It is no hot take to assert that President Trump appointed Halligan to this position for the purposes of bringing criminal charges against James Comey. Within days of her appointment, she obtained a grand jury indictment against Comey. It is unlikely that the two Democrat Virginia Senators would offer blue slip approvals of Halligan, and possibly even that the Senate would confirm her nomination regardless. So what will happen at the conclusion of Halligan’s 120-day limit? Will President Trump have the authority to maneuver her into the position, anyways, bypassing the advice and consent of the Senate?
[1] https://www.grassley.senate.gov/news/news-releases/qanda-blue-slips.
[2] United States v. Giraud, No. 1:24-CR-00768, 2025 WL 2416737 (D.N.J. Aug. 21, 2025).
[3] Emphasis added.
[4] Quoting Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 883 (1991).
[5] Quoting The Federalist No. 76, at 407 (cleaned up).
[6] U.S. Const. art. II, § 2, cl. 2.
[7] Brief of Appellee Julien Giraud, Jr. in Support of Affirmance, United States v. Giraud, Nos. 25-2635 & 25-2636 (3d. Cir. 2025).
