The Volokh Conspiracy
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Who Is Lawfully Exercising the Powers of the U.S. Attorney for the District of New Jersey?
A district court ruling that Ms. Habba has been unlawfully exercising the powers of the New Jersey U.S. Attorney ducks the critical question of who can exercise those powers ... which is strong reason for doubting the ruling's reasoning.
Today a federal district court (Judge Brann) ruled that Alina Habba is not lawfully acting as the U.S. Attorney for the District of New Jersey. But, remarkably, the district court failed to explain who instead lawfully holds the power of the U.S. Attorney for that district. The district court apparently recognized the uncertainty that its ruling would create, staying the ruling pending the Justice Department's sure-to-follow appeal. But the fact that the district court's order gives no answer to that basic question is, itself, strong reason for questioning its reasoning. On my reading of the relevant statutes, Ms. Habba is currently lawfully exercising the powers of the U.S. Attorney for New Jersey via the interim appointment statute. And if for some reason Ms. Habba lacks authority under that statute, the Attorney General has authority to name someone to assist in carrying out the Department's prosecutions in that state—and the Attorney General has properly named Ms. Habba.
I've blogged about this appointment issue earlier. Because the details are important, a recapitulation is in order (with some minor details omitted—you can read the District Court's 77-page opinion for the full chronology). As with my earlier posts, I express no view on the merits of Ms. Habba's appointment, only its lawfulness.
On January 8, 2025, as President Trump's inauguration was approaching, President Biden's U.S. Attorney—Philp R. Sellinger (who had previously been confirmed to the Senate by voice vote)—resigned to make way for the new Administration's nominee. Upon Sellinger's resignation, his First Assistant U.S. Attorney—Vikas Khanna—became the Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA). (Since then, Mr. Khanna has left the Department to go into private practice.)
On March 3, 2025, the Trump Administration appointed John Giordano interim United States Attorney for the District of New Jersey, pursuant to 28 U.S.C. § 546's vacancy provision. (He later was nominated to be the new Ambassador to Namibia.)
Then, a little more than three weeks later, on March 27, 2025, Attorney General Pam Bondi appointed Alina Habba to that interim position. The next day (March 28), Ms. Habba was formally sworn in to the interim position. Ms. Habba was appointed based on § 546, which limits such interim appointments to a maximum of 120 days. 28 U.S.C. § 546(c)(2). Given an interim appointment running for 120 days, Habba's appointment would seem to have been set to expire on Saturday, July 26—120 days later.
On June 30, 2025, President Trump formally nominated Ms. Habba for the permanent position of United States Attorney for the District of New Jersey and submitted her nomination to the Senate. The Senate took no action on the nomination.
On July 22, 2025, the judges of the U.S. District Court for the District of New Jersey invoked their statutory power under § 546(d) to appoint Desiree Grace (Ms. Habba's then-First Assistant) as the interim U.S. Attorney, making that appointment effective on "July 22, 2025 or 'upon the expiration 120 days after appointment by the Attorney General' of the Interim U.S. Attorney Alina Habba, whichever is later."
The Justice Department was not pleased with that appointment. And so, on July 24, 2025, before the 120 days had expired, the President withdrew Habba's nomination. That same day—July 24—Habba resigned her interim position as United States Attorney. The Attorney General then immediately appointed her as a Special Attorney under 28 U.S.C. § 515, which appointment Ms. Habba accepted. Exercising her authority under 28 U.S.C. §§ 509, 510, 515, and 542, among other provisions, the Attorney General also designated Ms. Habba as the First Assistant in New Jersey, effective upon her resignation as the interim United States Attorney. As a result of her holding the position of First Assistant U.S. Attorney position in New Jersey, by operation of law, Habba then seemingly became the Acting United States Attorney under the FVRA, 5 U.S.C. § 3345(a)(1).
In addition, on Saturday, July 26, a senior Justice Department official notified the former First Assistant (Ms. Grace) that the President would have removed her from the position of United States Attorney if her judicial appointment to that office had somehow become effective. The notification indicated that, in taking that step, the President was exercising his authority under Article II of the Constitution and 28 U.S.C. § 541(c). The former vests "the executive power in" the President; the latter provides that "each United States Attorney is subject to removal by the President." At oral argument before the District Court, the Justice Department reported that this removal order came at the direction of the President. Ms. Grace was terminated from her position at the Justice Department.
With that background in mind, we can now turn to the district court's ruling. Contrary to the assumption that everyone was operating under (including the New Jersey judges), the district court ruled today that § 546's 120-day limit began running on March 3, when the Trump Administration first invoked the vacancy provision and did not re-set to a new 120 days with the subsequent appointment of Ms. Habba three weeks later. Because Court's ruling hinges on the precise language of § 546, I set out the statute's language in full:
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
The Justice Department interprets the statute to mean that the Attorney General can make unlimited appointments under § 546(a) unless and until one of those appointments reaches the 120-day limit, at which point the appointing power shifts to the district court. A defendant being prosecuted by Ms. Habba reads the statute more narrowly, arguing that while § 546 allows the Attorney General to make appointments of different individuals, it imposes an aggregate limit for all such appointments of 120 days.
The district court agreed with the defendant, concluding that the defendant's reading was "textually sound" because
under section 546(c)(2), the 120-day limit, is benchmarked only to "appointment by the Attorney General under this section." It does not refer to "the person's appointment." In grammatical terms, there is no article, definite or indefinite, to describe the appointment to which section 546(c)(2) refers. But the text has not left us without guidance. The statute tells us that the 120 days are counted from "appointment by the Attorney General under this section." The Attorney General makes such appointment when she invokes section 546(a). So the 120-day clock begins running when the Attorney General first invokes section 546(a) and makes an appointment.
The Justice Department had argued that the introductory language of sub-section (c)—"[a] person appointed …."—should carry through to the "appointment" referred to in § 546(c)(2). To me, that seems like a straightforward, sensibly reading of the statute. But the district court disagreed, for three reasons.
First, the district court rejected the Department's interpretation because it "rewrit[es] the unmodified term "appointment" as "her appointment" or "that appointment." But one could just as easily say that it is the district court's interpretation that "rewrites" the statute, because the district rewrites the unmodified term "appointment" to be "any appointment."
Second, the district court concluded that under the Department's reading, restating the phrase "under this section" (found in both (c) and (c)(2)) becomes a redundancy
because a section-546 appointment "is the only type of appointment to which [the phrase] could apply. But courts should give 'every clause and word of a statute' . . . meaning.' [citing cases]. 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.'"
This interpretation is odd. To make its reading of the statute work, the district court has to give the exact same words—"under this section"—two different interpretations, even though they are found just forty words apart from each other in the same statutory provision. The district court's interpretation crashes headlong into a standard rule of statutory construction—the presumption of consistent usage. As Justice Scalia and Bryan Garner articulate the presumption: "A word or phrase is presumed to bear the same meaning through a text …." Scalia & Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (citing cases).
Moreover, under the Justice Department's interpretation of the statute, the second use of the phrase "under this section" in subsection (c)(2) is not a redundancy. In subsection (c)(2), the phrase clarifies that, in contrast to subsection (c)(1)'s reference to § 541, subsection (c)(2)'s reference is to "this section"—i.e., to § 546. That interpretation gives meaning to the phrase—and, indeed, a consistent meaning to the phrase throughout the statute.
Third, the district court believed that the introductory language "under this section" 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." But this point is a non sequitur. The issue is not whether the phrase "under this section" somehow "modifies" the latter language found in section (c). The issue is what the phrase means. The fact that the Senate confirmation of a U.S. Attorney terminates an interim appointment does not shed light on the meaning of the phrase.
The district court has one last consequentialist argument up its sleeve. The court claims that statutory "context" must mean that the 120-day clock runs out after a first invocation of section 546, because "[a]ccepting the Government's reading would give the Executive a permanent means of thwarting that provision by terminating every section 546(a) appointment on its 119th day" (emphasis added). The district court's bias in interpretating the statute is revealed in the word "thwarting." The Executive is not "thwarting" judicial power when it elects to make a successive appointment of a U.S. Attorney under section 546(a). Instead, it is simply eliminating any occasion for the judiciary to step in. Indeed, an Executive Branch appointment of the U.S. Attorney should be normal course of events. If there is any impermissible "thwarting" going on, it would seem to come from interpreting the statute to allow a judicial branch appointment of an interim U.S. Attorney against the wishes of the Executive.
To be sure, the Executive might elect to allow the judiciary to make an appointment, particularly where there has been cooperation in selecting the person. But an interpretation giving the Executive the final word over who will serve in important U.S. Attorney positions seems much to be preferred over the district court's assertion of judicial power.
But an even more glaring problem with the district court's analysis about recurring 119-day appointments is its failure to analyze what might be termed recurring 121-day terminations. The district court concedes that under 28 U.S.C. § 541(c), the President has the power to terminate a judicially appointed U.S. Attorney. See Op. at 33. So under the district court's "contextual" reading of the statute, the result is that, after 120 days, the judiciary can appoint an interim U.S. Attorney against the wishes of the Executive, and then the next day (the 121st day), the Executive can terminate that interim U.S. Attorney. And, at that point, there is a clearly a "vacancy" existing in the U.S. Attorney's Office, over which the Executive Branch then has control.
Indeed, the striking omission in the district court's 77-page opinion is that it tells us who is not exercising the powers of the U.S. Attorney in New Jersey—while begging the question of who is exercising those powers. Under the district court's ruling, those powers are clearly not being exercised by the judicially-appointed First Assistant (Ms. Grace). She has been terminated by President Trump. And under the rest of the district court's opinion, it would appear that there is no available First Assistant who is eligible to step in and serve as the Acting U.S. Attorney. (Recall that Mr. Khanna has left the Department.)
So to determine who is running things in New Jersey now, under the district court's decision, we apparently have to go back to first principles, with the Attorney General being the head of the Justice Department and entitled to exercise all of the functions of the Justice Department. See 28 U.S.C. § 509. And, of course, the Attorney General can't be everywhere at all times, and so she is entitled to have other Justice Department employees assist her in carrying out the Department's duties. And for New Jersey, Attorney General Bondi has made it clear that she wants Ms. Habba to carry out the Department's duties in New Jersey—and thus could apparently delegate that responsibility to Ms. Habba.
I admit my analysis here could be critiqued. But at least I have set out analysis for who is currently in charge of the U.S. Attorney's Office for the District of New Jersey. The district court has not told us who, in its view is in charge—a stunning omission with significant practical consequences, ameliorated only by the fact that the district court has stayed its ruling to permit an appeal.
I'll stop my statutory analysis here, in the interest of keeping this post somewhat limited. But I should emphasize that I'm writing only about how judicial appointments should be handled in the context of vacant U.S. Attorney positions. As I have discussed in my earlier posts, different considerations exist when the judiciary is exercising authority on a case-specific basis (such as appointing a special prosecutor to pursue a contempt of court prosecution). Supreme Court precedent clearly allow judicial appointments in these contexts. See, e.g., Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987).
My view is that the district court's statutory ruling will be—and should be—swiftly reversed, either by Third Circuit or, if necessary, the Supreme Court. In the end, it makes sense to read the statutory scheme to allow the Attorney General to appoint someone whom she has confidence in to carry out the President's policies.
