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From your -- Appeals court panel appears skeptical of Trump admin’s maneuvers to keep Alina Habba in place
Ry Rivard and Erica Orden
[...]
The panel Monday consisted of Judge L. Felipe Restrepo, an appointee of former President Barack Obama; and Judges D. Michael Fisher and D. Brooks Smith, appointees of former President George W. Bush.

All three questioned the government’s move, with Smith at one point calling it “a complete circumvention, it seems, of the appointments clause.”

Habba’s is the most advanced of several cases around the country, including in California and Nevada, in which defendants are challenging the authority of U.S. attorneys installed by the Trump administration through unusual tactics meant to quickly put or keep loyalists in place and without Senate confirmation.

The challenges to Habba’s authority came from defense attorneys, including Abbe Lowell, trying to get charges against their clients thrown out.
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Insert: Another challenge to Habba’s authority
By MATT FRIEDMAN 08/12/2025 06:58 AM EDT

Good Tuesday morning!

A second criminal defendant is challenging Alina Habba’s legitimacy as acting U.S. attorney — this time a high-profile one with some big-name attorneys.

Cesar Pina, aka “Flipping NJ,” made big headlines when Habba announced his indictment last month for allegedly running a Ponzi-like scheme and bribing a Paterson official.

The motion to dismiss, like the one filed earlier by Julien Giraud, a defendant in a gun and drug case, argues that the Trump administration’s end-run around the 120-day limit on Habba’s interim appointment doesn’t pass muster.

Some of the arguments over Habba’s tenure revolve around when she actually started the job. Trump announced her for the post on March 24, saying she would serve “effective immediately!” The Department of Justice argues she started March 28. That matters, according to the DOJ, because New Jersey’s federal judges voted not to keep Habba in the post on July 22 — 120 days after March 24. The DOJ argues the vote didn’t count because there was not yet a vacancy to fill.

It’s easy to forget, but there was actually an interim U.S. attorney for three weeks before Habba. John Giordano was appointed March 3 and served three weeks before he was tapped as ambassador to Namibia.

But Pina’s lawyers — Gerry Krovatin, Abbe Lowell and Norman Eisen — argue that the 120-day clock actually starting ticking on Giordano’s first day, meaning that her term expired on July 1, so she didn’t have the authority to sign off on Pina’s indictment almost a week later. Giraud’s lawyer, Thomas Mirigliano, made a similar argument in a filing Thursday.

This filing comes at a crucial time, since a federal judge in Pennsylvania on Friday is set to hear Giraud’s arguments challenging Habba’s authority. And many lawyers expect this case to reach the Supreme Court.

It’s telling, then, that both plaintiffs’ legal teams cite the same 1986 memo from a new 30-something, Jersey-born deputy assistant attorney general in the Reagan administration named Sam Alito. According to the court filings, the memo — which neither set of lawyers has yet to obtain but have seen summarized in a scholarly article — says attorneys general can’t make successive interim appointments.
https://www.politico.com/newsletters/new-jersey-playbook/2025/08/12/another-challenge-to-habbas-authority-00504654?is_magic_link=true&template_id=OT5J0E7B7DD7
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Henry Whitaker, the counselor to Attorney General Pam Bondi who represented the administration in court, defended its actions, saying: “We colored inside the lines here.”

At one point, he appeared to suggest Habba was being personally targeted, prompting a particularly strong reaction from Smith, who jumped in to say the case was not about Habba personally.

“This is about the statute, this is about the separation of powers, this is about an important position within the firmament of our government, this is about process,” Smith said.

Smith then went through the series of events that the Trump administration used to keep Habba on the job past a four-month period interim U.S. attorneys are allowed to serve. First, Trump withdrew Habba’s Senate nomination to permanently take the post. Then Bondi appointed Habba a special attorney, and then first assistant U.S. attorney — typically the second-ranking official in the office. Because the U.S. attorney’s post was vacant, Habba then automatically filled the top job on a permanent basis. In the process, the administration fired a respected career prosecutor who had been first assistant.

“Can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney?” Smith asked.

Whitaker could not, though he said there were other examples in other parts of government.

Habba attended the hearing at the federal courthouse in Philadelphia. In a social media post after the arguments, she urged the Senate to take up the nominations of other U.S. attorneys and argued the president should be able to appoint his picks to carry out his mission.

“To date, I have not had so much as a single conversation with New Jersey Senators, despite repeated outreach,” she said in the post. “That is not how the process should work in a functioning democracy.”

Both of New Jersey’s Democratic senators have said the process Trump used to keep Habba in place undermines the judiciary.

Fisher repeatedly suggested that one of the key laws at issue in the case suggested Congress wanted unconfirmed acting top prosecutors to be career prosecutors, rather than political picks.

“It's not the best and most clearest statute that I've ever read, I'll grant you that there's some confusion in it,” he said. “But it does say to me that Congress had a very specific intent. They wanted an experienced person to be that acting officer.”

Lowell, who is representing someone charged with a Ponzi-like scheme and with bribing a Paterson, New Jersey, official, faced little pushback from the judges. He spoke uninterrupted for about six minutes, while Whitaker was interrupted almost immediately.

Lowell disagreed with one of the Trump administration’s fallback arguments, which asserts that regardless of other statutes, Bondi could delegate powers of a Senate-confirmed U.S. attorney to Habba for a lengthy period of time.

Lowell conceded this could be done for a large share of the job, but not everything.

“You cannot delegate all the functions,” he said.

Any decision from the circuit will almost certainly be appealed. The case raises issues of presidential and congressional power that seem destined to be presented to the Supreme Court.

Your - https://www.msn.com/en-us/news/politics/appeals-court-panel-appears-skeptical-of-trump-admin-s-maneuvers-to-keep-alina-habba-in-place/ar-AA1OQ7iE?ocid=BingNewsSerp