A US appeals court has ruled that President Donald Trump’s former personal lawyer, Alina Habba, has been unlawfully serving as top federal prosecutor for New Jersey – a ruling likely to affect scores of criminal cases in the state.
The president handpicked Habba for the role of US attorney this year, but a district court rejected her nomination, so the Trump administration installed her in a role that allowed her to fill in on an acting basis.
The appellate judges found on Monday that this tactic, which bypassed confirmation by the US Senate, violated the Federal Vacancies Reform Act.
Habba is the second Trump-appointed prosecutor to be disqualified in recent weeks.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” one of the appellate judges, Judge Michael Fisher, wrote in Monday’s ruling disqualifying Habba.
The BBC has contacted Habba’s office, the White House, and the Department of Justice for comment.
In a joint statement, three lawyers who had challenged Habba’s authority – Abbe David Lowell, Gerry Krovatin, and Norm Eisen – wrote that this marks “the first time an appeals court has ruled that President Trump cannot usurp longstanding statutory and constitutional processes to insert whomever he wants in these positions”.
The statement continued: “We will continue to challenge President Trump’s unlawful appointments of purported US Attorneys wherever appropriate.”
Habba, 41, first joined Trump’s personal legal team in 2021 after reportedly meeting him at his golf club in Bedminster, New Jersey.
She went on to represent Trump in his hush-money trial in New York last year, when he was convicted on 34 counts of falsifying business records. Trump has filed an appeal against that conviction.
Before Habba took on the role of US Attorney for New Jersey, Trump had announced he was appointing her as his presidential counsellor during his second administration, describing Habba as “unwavering in her loyalty” and a “tireless advocate for justice”.
Monday’s ruling may force the justice department to find a new prosecutor to supervise federal criminal cases in New Jersey.
The appellate court’s decision came after three men facing criminal charges in New Jersey argued that the prosecutor’s appointment was unlawful, the BBC’s US partner CBS News reported.
A federal judge ruled in their favour in August. That order had been on hold while the appeals court heard the case.
Habba is not the first Trump-appointed US prosecutor to face a legal challenge.
A federal judge last week dismissed criminal cases against former FBI Director James Comey and New York Attorney General Letitia James on the grounds that the US attorney in the case, Lindsey Halligan, was not lawfully appointed as interim US attorney in Virginia.
In October, a US district judge disqualified Bill Essayli from his role as acting US attorney for the Southern District of California, finding that he had stayed in the temporary post longer than the law allowed.
But the judge allowed Essayli to continue overseeing the office – the most populous US federal judicial district, serving around 19 million people – in his role as first assistant US attorney.
Defence attorneys have filed a motion to get that part of the judge’s ruling reversed in an attempt to fully oust Essayli.
In September, another US district judge disqualified Nevada’s lead federal prosecutor Sigal Chattah, finding that she, too, was not lawfully serving as acting US attorney.
