The Attorney General Can Put Her Own Legal Team in Place—through U.S. Attorneys in New Jersey and Elsewhere
Recently questions have swirled around how the Attorney General can appoint an “interim” U.S. Attorney before the Senate has acted to permanently fill the position, with a focus on the New Jersey position that has been filled temporarily by Alina Habba. A statute (28 U.S.C. 546) allows the Attorney General to make an interim appointment for 120-days, but then provides that the district judges in the district can step in to make a further appointment. On Saturday, VC co-blogger Steve Calabresi questioned the constitutionality of this statute, contending that such cross-branch appointments by the Judiciary of an Executive Branch officer violates separation of powers principles. Yesterday, I rebutted his argument, explaining why the Constitution’s Appointments Clause allows Congress to set up this approach to interim appointments. And, if my constitutional analysis of § 546 is correct, then only statutory questions remain about how an interim U.S. Attorney can be appointed.
But Ms. Habba very recently resigned her position as “interim” U.S. Attorney to become “acting” U.S. Attorney. Is this permissible? Over the last 24 hours, this seemingly technical academic issue has suddenly assumed tremendous practical importance. As the New York Times is reporting in a lead story, “New Jersey Criminal Cases Screech to a Halt as [N.J. U.S. Attorney] Habba’s Authority is Challenged.” In this post, I address the current controversy surrounding the authority of the New Jersey U.S. Attorney. And, more broadly, I also attempt to set out the relevant statutory framework and policy issues surrounding appointments to the important U.S. Attorney positions.
To make a long story short, in my view, Ms. Habba is lawfully the acting U.S. Attorney in the District of New Jersey, at least for a short period of time, via the somewhat circuitous route of having been appointed by the Attorney General to be the First Assistant in the Office, and then being elevated to the Acting U.S. Attorney via the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. But one problem with this approach is that, while seemingly authorized by statute, it appears to have the potential to deprive the Senate of its opportunity to vote on the U.S. Attorney selection for a lengthy period of time. Rather than relying on the FVRA, a more straightforward path for the Attorney General is to simply appoint an “interim” U.S. Attorney every 120 days, under § 546—while the President simultaneously nominates that person to be the permanent U.S. Attorney. Indeed, Ms. Habba could now be reappointed as the interim U.S. Attorney and, simultaneously, her nomination resubmitted to the Senate. Under this approach, the Senate has an opportunity to speak to nomination, while at the same time the Attorney General is entitled to put her own legal team in place in the important U.S. Attorney positions around the country.
To set the stage for this question, it is useful to recount that the U.S. Attorneys for each of the 94 federal judicial districts (such as the District of New Jersey) are the top federal prosecutors. The U.S. Attorneys are political appointees, acting under the direction of the Attorney General (currently, of course, Attorney General Pam Bondi). Because of the importance of U.S. Attorneys, they are nominated for their positions by the President and then must be confirmed (or disapproved) by the Senate.
In recent years, following the election of a new President, it has become common for existing U.S. Attorneys to quickly resign and be replaced, particularly where (as happened in the last election) the new President is from a different political party than his predecessor. That replacement process can take time, as the new President must identify an appropriate replacement, and then nominate the replacement for the Senatorial advice and consent process.
In New Jersey, following the election of President Trump, in December the Biden-appointed U.S. Attorney for New Jersey (Philip R. Sellinger) resigned. As the Trump Administration transitioned into office and after Attorney General Bondi was confirmed, on March 24, 2025, Alina Habba was appointed as the “interim” U.S. Attorney for New Jersey. And President Trump submitted her nomination to become the permanent U.S. Attorney.
As I have discussed, the statute governing interim U.S. Attorneys (28 U.S.C. § 546) contains a 120-day time limit on Attorney General appointments. Since March 24, Alina Habba had been serving in that interim position, while her nomination to become the permanent U.S. Attorney was pending before the Senate. In the past, it has been common for interim U.S. Attorneys to remain in their positions until the Senate has acted, one way or the other, on their nominations. But over the last week or so, as Ms. Habba’s interim, 120-day term was drawing to a close, the district judges for the District of Jersey entered a brief order declining to extend her term. Instead, citing their authority under § 546(d), the judges appointed Ms. Habba’s First Assistant (Desiree Leigh Grace) to the interim U.S. Attorney position.
The Trump Administration quickly responded to keep Ms. Habba in the position. First, the President withdrew Ms. Habba’s nomination to be the U.S. Attorney, a step apparently designed to clear the path for using the FVRA. And then Attorney General Bondi appointed Ms. Habba to be the First Assistant in that U.S. Attorney’s Office. This appointment meant that automatically, by operation of law, Ms. Habba became the Acting U.S. Attorney for the District for up to the next 210 days, pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. The Attorney General also removed the First Assistant (Ms. Grace) from her (potential) court-appointed interim U.S. Attorney position.
After reading this complex procedural history, some might wonder whether this case is some sort of New Jersey machination, unlikely to recur elsewhere. But as Calabresi recounted in his original post, this issue is not confined to The Garden State. Senate Democrats are reportedly slow-walking the President’s U.S. Attorney nominees, with negotiations on-going to break the impasse. As of a few days ago, only a dozen nominees have moved past a preliminary committee vote and not a single nominee has received a confirmation vote on the Senate floor—even though the Presidential election was more than eight months ago. So issues regarding the appointment process for the 93 U.S. Attorneys, whether it be on an “interim,” “acting,” or permanent basis, have tremendous practical importance. (For an excellent recent article differentiating among the three categories, see James A. Heilpern, Interim United States Attorneys, 28 George Mason L. Rev. 187 (2020) (calling the current situation “a mess”).)
The recent use of the Federal Vacancies Reform Act to fill the New Jersey slot might serve as a roadmap for the Trump Administration to follow in other districts. But the FVRA’s scope is debated. And, more important, the Act’s constitutionality has also been seriously questioned. For example, Justice Thomas has concluded that “[c]ourts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation.” N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 318 (2017).
In the last few days, these seemingly arcane appointment issues have come to a head in New Jersey. A federal criminal defendant in New Jersey has already challenged Habba’s appointment under the FVRA, arguing that the statute explicitly prohibits individuals whose nomination have been submitted to the Senate from serving in an acting capacity for the same office. Let’s consider this narrow statutory argument.
The relevant provisions in the FVRA provide:
(a) If 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, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1) the first assistant of the office such officer shall perform the functions of the duties of the office temporarily in an acting capacity …
(b)(1) … a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
5 U.S.C. § 3345 (emphasis added).
According to this defendant, this last (highlighted) provision “explicitly prohibits” Habba from serving as the Acting U.S. Attorney for the District of New Jersey because the President had months earlier submitted her nomination to the Senate for that same position—even though the President has now withdrawn her nomination. The defendant’s argument is joined by Georgetown law professor Steve Vladeck, who argues on social media that the “President can’t appoint the ‘first assistant’ to be the acting officer if her nomination was ‘submitted,’ not just if it’s ‘pending.’ Withdrawing the nomination doesn’t change the fact that it was submitted.”
I believe Habba is properly serving as the Acting U.S. Attorney for the District of New Jersey, by operation of the FVRA, at least for a short period of time. The key question being litigated in her case is whether a person is permanently barred from serving as an acting U.S. Attorney after the President “submits a nomination of such person” to the Senate. But the statute’s plain language does not create a disability after a nomination “was submitted,” as Vladeck suggests. Instead, the statute uses the present tense: a disability exists when the President “submits a nomination.” Under standard, recommended principles of legislative drafting, the present tense is used “to express all facts and conditions required to be concurrent with the operation of the legal action,” as Bryan Garner explains in his excellent treatise,
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