The battle to keep U.S. Attorney Alina Habba in her position continues to play out in court. A three-judge panel of the Third U.S. Circuit Court of Appeals heard arguments on Monday after a lower court ruled against allowing the Trump administration to have her in this role despite not being confirmed by the Senate.
The court appears skeptical about allowing Habba to continue as New Jersey’s top prosecutor when she has not gone through the Senate confirmation process, according to Politico.
A panel of three judges from the 3rd Circuit Court of Appeals expressed deep skepticism toward President Donald Trump’s maneuvers to keep Alina Habba as New Jersey’s top federal prosecutor without Senate confirmation. Over an hour of questioning, the judges scrutinized the administration’s “multistep process” that allowed Habba, Trump’s former personal attorney, to retain her post even after district judges had moved to replace her. One judge, D. Brooks Smith, described the process as “a complete circumvention, it seems, of the appointments clause.” Government counsel Henry Whitaker defended the administration, claiming “We colored inside the lines here,” but the panel’s tone suggested substantial doubt about that interpretation. The court’s decision will affect not only Habba’s fate but also broader debates over executive limits in appointing prosecutors.
The case hinges on whether the unusual steps that kept Habba in office complied with constitutional and statutory requirements. Judge Smith underscored that “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.” The controversy began after a lower-court ruling in August declared Habba “is not lawfully holding the office of United States Attorney.” Despite that determination being stayed pending appeal, the uncertainty has disrupted courts and prosecutions in New Jersey. Even Habba acknowledged tensions in the process, lamenting, “To date, I have not had so much as a single conversation with New Jersey Senators, despite repeated outreach.”
Habba, who previously worked as a personal attorney for President Donald Trump, was appointed as interim U.S. Attorney for New Jersey earlier this year. Federal law mandates that these appointments can last only 120 days unless the Senate confirms the nominee or are approved by district judges.
Habba’s term expired in July, but the judicial panel did not choose to renew her position. In response, the Trump administration employed some procedural moves to make sure she remains in the role. It withdrew her official nomination and assigned her as “first assistant.” Under federal law, this means she assumes the duties of the acting U.S. attorney when the post is vacant, according to ABC News.
In August, U.S. District Judge Matthew W. Brann ruled that Habba was “serving without lawful authority” and accused the Trump administration of circumventing the Appointments Clause of the U.S. Constitution, The Associated Press reported. He prohibited her from participating in prosecutions. However, he stayed the order after the Justice Department appealed.
Brann’s ruling came after multiple defendants charged with federal offenses challenged the legality of Habba’s stint as U.S. attorney.
Abbe Lowell, the attorney arguing for the defendants challenging her appointment, said the government employed a “chimera” of seven different statutes to support her tenure, alluding to the mythical creature made up of various animals.
Habba was Trump’s attorney in criminal and civil proceedings before he was elected to a second term. She served as a White House adviser briefly before Trump named her as a federal prosecutor in March.
Shortly after her appointment, she said in an interview she hoped to help “turn New Jersey red,” a rare overt political expression from a prosecutor, and said she planned to investigate the state’s Democratic governor and attorney general.
She then brought a trespassing charge, eventually dropped, against Newark Mayor Ras Baraka stemming from his visit to a federal immigration detention center.
In a Monday post on X, Habba said she had been in court “advocating on behalf of 26 U.S. Attorney candidates who have been denied the opportunity for a Senate hearing — effectively blocking their confirmation and blocking Congress’s ability to provide advice and consent.”
She further stated that the “continued invocation of blue slips, a tradition not a rule, demonstrates a politically motivated effort to impede the President’s constitutional authority to appoint U.S. Attorneys.”
I just left court advocating on behalf of 26 U.S. Attorney candidates who have been denied the opportunity for a Senate hearing - effectively blocking their confirmation and blocking Congress’s ability to provide advice and consent. The continued invocation of blue slips, a…
— Alina Habba (@AlinaHabba) October 20, 2025
The “blue slip” tradition Habban mentioned refers to a Senate practice that means both senators from the state a candidate hails from must give their approval before Senate confirmation proceedings can begin. New Jersey Sens. Cory Booker and Andy Kim, both Democrats, have refused to give their approval for Habba’s confirmation. However, as Habba pointed out, this practice is not enshrined in law, nor is it a written rule.
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