DOJ Rebuffed by Judges in Bid to Return Habba as Prosecutor (2)

A federal appeals court on Monday denied the Justice Department’s request to review a panel’s decision that Alina Habba, President Donald Trump’s pick to lead the New Jersey US attorney’s office, was unlawfully appointed.

The order from the US Court of Appeals for the Third Circuit rejecting a request for rehearing by the same three-judge panel or the en banc court is another blow to the administration’s attempts to elevate loyalists to top prosecutor roles. It also increases the chance that the administration’s series of steps used to elevate Habba, a former personal attorney for Trump, will go before the US Supreme Court.

The three-judge panel ruled in December that DOJ unlawfully extended Habba’s role as the top federal prosecutor in New Jersey when her 120-day interim appointment expired. The panel upheld an August ruling by a federal district judge.

DOJ asked the court to reconsider the ruling earlier this month. Trump previously nominated Habba for a four-year term but later withdrew her nomination as the administration took a series of unusual steps to elevate Habba to the positions of “special attorney” and acting US attorney.

Habba resigned from the post following the panel’s ruling but said she planned to return to the role if the Third Circuit or Supreme Court reverses the ruling. Habba has since been serving as as a senior adviser for US attorneys at DOJ.

Third Circuit Judge Emil Bove, a former top Trump DOJ official, didn’t participate in the decision. Bove, who was confirmed to the federal court in July, recently faced a judicial misconduct complaint over his presence at a campaign-style presidential rally in Pennsylvania in December.

The administration tapped a trio of individuals to succeed Habba after her resignation, a setup that is now being challenged in court. Lawyers for criminal defendants argued in federal court in Newark, N.J., on Jan. 23 that the arrangement illegally bypassed the president’s requirement to seek Senate confirmation of a US attorney.

DOJ spokesperson Natalie Baldassarre said in an email the department had no comment on Monday’s order.

Other federal courts have ruled that Trump’s temporary US attorneys in Los Angeles, Nevada, New Mexico, New York, and Virginia were improperly installed, though some have stayed in their offices as “first assistants,” a title typically reserved for an office’s second-in-command who leads the office during a US attorney vacancy.

The cases are USA v. Pina, 3d Cir., No. 25-2636, 1/26/26 and USA v. Giraud, 3d Cir., No. 25-02635, 1/26/26.