What’s Happening in the New Jersey U.S. Attorney’s Office?

Last week, the District of New Jersey experienced a tumultuous series of events—leaving the identity of the district’s chief federal law enforcement office unclear.

The controversy began when Acting U.S. Attorney Alina Habba offered her office a “preemptive farewell” as she neared the conclusion of her 120-day term as acting U.S. attorney. The New Jersey district court then appointed Habba’s first assistant, Desiree Grace, as interim U.S. attorney as provided by statute. In response, however, Attorney General Pam Bondi announced she had removed Grace and branded the court as “rogue.” In a mystifying turn of events, Habba apparently resigned as acting U.S. attorney and (perhaps) momentarily took Grace’s former job as first assistant before morphing back into an acting U.S. attorney—this time under the cover of a different statute, the Federal Vacancies Reform Act (FVRA). This whirlwind saga, combined with a lack of any public explanation or legal justification from the Justice Department and White House about their actions, left the resolution of the situation unclear.

Consequently, on July 28 a defendant in a criminal case prosecuted by the New Jersey United States Attorney’s Office filed a motion to dismiss, challenging Habba’s appointment. The chief judge of the U.S. Court of Appeals for the Third Circuit transferred that matter to a judge in another district, and federal judges throughout New Jersey suspended matters involving the United States Attorney’s Office due the uncertainty of its leadership. In response, on July 29 the government filed an opposition to the motion to dismiss, which publicly detailed the facts of last week’s events and the government’s legal rationale for the upheaval in New Jersey.

In this article, we attempt to unpack some of the legal issues that this roundabout process has created, concluding that there are potentially significant problems with Habba’s appointment. In particular, there are at least five unanswered questions remaining regarding her appointment and at least three factual inaccuracies in the administration’s telling of events. We conclude that the Trump administration’s actions over the past week in New Jersey are part of a larger—and dangerous—ongoing disregard for the important role of Congress in structuring and staffing the executive branch.

Legal Background: U.S. Attorney Appointments

In order to understand the current situation in the U.S. attorney’s office in New Jersey, some basic constitutional background is necessary. The Constitution's Article II Appointments Clause differentiates between two tiers of officers: “principal officers,” who must be appointed by the president and confirmed by the Senate, and “inferior officers.” For the latter, the Constitution grants Congress the power to “by law vest the Appointments of such inferior officers, as they think proper, in the President alone, in Courts of Law, or in the Heads of Departments,” as well. In other words, it is up to Congress to determine if someone besides the president should be given the power to appoint an inferior officer or if the default system of presidential appointment and Senate confirmation should prevail.

There has been some debate about whether U.S. attorneys should be considered principal or inferior officers. On the one hand, they have a superior—the attorney general—and there are decisions that make that the primary determinant of officer status. On the other hand, within their districts (not just the Southern District of New York), U.S. attorneys have a considerable degree of decision-making autonomy, which some observers contend makes them principal officers. The Justice Department’s long-standing opinion, however, is that U.S. attorneys are inferior officers. The government takes that same position in its opposition to the motion to dismiss in the New Jersey case.

Interim U.S. attorneys, like other temporary officeholders, are generally thought to be inferior officers. That allows Congress to specify other modes of appointment to fill vacancies in principal offices while the president decides whom to nominate and the Senate decides whether to confirm the nominee. For that reason—regardless of the constitutional status of the permanent position of U.S. attorney—Congress can assign appointment power to a “Head[] of Department[]” (in this case, the attorney general) or to a court.

In the ordinary course, U.S. attorneys are appointed by the president and confirmed by the Senate. The same code section likewise provides that “each United States attorney is subject to removal by the President.” When there is a vacancy in the position of U.S. attorney, a different code section, 28 U.S.C. § 546, provides that the attorney general may appoint an interim U.S. attorney who can serve for up to 120 days. The same law states that “[t]he Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.” After 120 days have elapsed, 18 U.S.C. §546 also provides that “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”

What (Actually) Happened in New Jersey Last Week

The government’s July 29 filing portrays a more coherent narrative of what occurred in the Garden State last week than what emerged from a series of posts on X by the attorney general and her deputy, Todd Blanche, as events unfolded. In order to understand the legal situation (and see where the different accounts are in tension), we briefly review the live-blogged version of events and then the docketed version of the facts. As we discuss below, there are some contradictions between these two narratives, leaving several questions unanswered.

The DOJ’s Live-Tweeted Version of Events

On July 22, the district court issued an order appointing Grace, Habba’s hand-picked first assistant, as interim U.S. attorney, effective July 22 or 120 days after Habba’s appointment—whichever was later. That same day, Attorney General Bondi posted on X denouncing the court as “rogue judges” for making the appointment, and announced that Grace “ha[d] just been removed.” Deputy Attorney General Blanche followed up with his own post that same day, stating:

The district judges in NJ just proved this was never about law—it was about politics. They forced out President Trump’s pick, [Habba], then installed her deputy, colluding with the NJ Senators along the way. It won’t work. Pursuant to the President’s authority, we have removed that deputy, effective immediately. This backroom vote will not override the authority of the Chief Executive.

For her part, shortly thereafter Grace publicly declared that she was prepared to follow the court’s order and “serve in accordance with the law.” On July 24, Habba posted: “Donald J. Trump is the 47th President. Pam Bondi is the Attorney General. And I am now the Acting United States Attorney for the District of New Jersey.”

The DOJ’s Version of Events as Docketed

On July 29, the Justice Department filled in some of the gaps in this narrative in its opposition to the motion to dismiss. That series of events went as follows:

On March 27, Attorney General Bondi appointed Habba to a temporary appointment as U.S. attorney to begin March 28 and last through May 26. On May 19, Bondi extended Habba’s appointment “through July 25, 2025.” Then, on July 22 (exact time unknown), the director of the Executive Office for United States Attorneys (EOUSA) sent a memorandum to Grace informing her that she had been fired. On July 24 (again, time unknown), Habba sent a letter to Bondi announcing that she would “resign my position as Interim United States Attorney ... effective at 5:00pm today, July 24, 2025.” That same day (apparently at noon, from the signature block), EOUSA sent Habba a letter informing her that she had been appointed a special attorney in New Jersey. Then, at a time again unclear, the attorney general issued an order appointing Habba as first assistant U.S. attorney in New Jersey. Two days later, at 12:02 a.m. on July 26, a White House employee emailed Grace directly and told her that:

You may not lawfully serve as the United States Attorney for the District of New Jersey. The District Court for the District of New Jersey lacked authority to appoint you under 28 U.S.C. §546(d), because Alina Habba resigned as United States Attorney on July 24, 2025, which was before her appointment expired under 28 U.S.C. 546(c)(2) at the end of July 25, 2025. Regardless, even if the District Court has such authority, the President of the United States hereby removes you from office pursuant to his authority under 28 U.S.C. 541(c) and Article II of the Constitution.

While this docketed series of events clears up some of the confusion created by last week’s tweets, several questions still remain.

The Five Mysteries of New Jersey

Mystery 1: When Did Habba’s Appointment Actually Begin?

In its filing, the administration emphasizes President Trump’s inherent Article II powers (part of a trend we discuss further below). But the filings omit a curious sequence of events related to when Habba’s appointment actually began. In the government’s telling, Habba’s appointment began March 28, because that is the date Bondi’s March 27 order became effective. But this completely ignores an earlier statement by Trump on March 24:

It is with great pleasure that I am announcing Alina Habba, Esq., who is currently serving as Counselor to the President, and has represented me for a long time, will be our interim U.S. Attorney for the District of New Jersey, her Home State, effective immediately!

If Habba’s appointment were “effective immediately!” on March 24, then her appointment would have expired 120 days later, on July 22 (presumably the reason the district court chose that date as a potential start in its order appointing Grace).

It is possible the government believes that the attorney general has the sole power to appoint Habba to the interim position, as the statute states, rendering the president’s statement an empty instruction. But such a constrained view of the president’s power would be in tension with the sweeping articulation of Article II authority contained in their response to the motion to dismiss, which states that:

Exercising that statutory and Article II authority in this case, the President has made clear that he will not permit anyone other than Ms. Habba to fill the current vacancy in the office of the United States Attorney on a temporary basis. That is his prerogative; this Court cannot second-guess it.

If the government’s view is that Article II gives the president the prerogative to fill the vacancy with his chosen appointee, then why did Habba’s appointment not begin from when the president declared that it was “effective immediately”? And why does the government fail to address the president’s post in its statement of facts?

Mystery 2: When Did Habba’s Appointment Expire?

Under the statute, everyone agrees Habba’s initial appointment was limited to 120 days. But the government’s filing includes two curious attachments. The first is an attorney general order dated March 27, appointing Habba effective March 28—not for the full 120 days, but until May 26. The second is an attorney general order dated May 19, purporting to extend the appointment from May 27 through July 25.

It is unusual to break a 120-day term appointment into two periods; the attorney general has no authority to extend the appointment for longer than 120 days. By our calculation—starting with the attorney general’s order rather than the president’s post—Habba’s appointment ended on July 25. She submitted her resignation on July 24, effective at 5 p.m.

Mystery 3: What Was Grace’s Status When Habba’s Interim Appointment Ended?

The government submitted a memorandum to Grace from the director of the Executive Office for United States Attorneys purporting to notify her “[p]ursuant to Article II of the United States Constitution and the laws of the United States” that her employment with the Justice Department was terminated, effective immediately. That memorandum did not refer to her appointment as acting U.S. attorney by the district court, and neither the director nor the attorney general had any authority to terminate that appointment in any case.

Mystery 4: By What Authority Is Habba Continuing to Exercise the Authority of the U.S. Attorney?

The government submitted a letter from the human resources staff of the Justice Department notifying Habba that she was being appointed for an indefinite term as special attorney to the attorney general with (apparently) all of the powers of the U.S. attorney. But that can’t be valid. Holding all of the powers and duties of an office for an indefinite term is holding the office. Using a different title does not change the rules governing appointments or sidestep the statutes Congress wrote. Congress authorized the attorney general to make a 120-day interim appointment, not one for an indefinite term.

The government also submitted an attorney general order dated July 24, appointing Habba as “special attorney” and designating her as first assistant. The order states that as first assistant she “will have authority to serve as Acting United States Attorney” under the FVRA. So under which authority—the FVRA or the “special attorney” designation—is she retaining power?

Mystery 5: Who Became U.S. Attorney When Habba Resigned?

Habba’s letter of resignation was effective at 5 p.m. on July 24. If her 120-day term (assuming it was validly extended by a second order) ended at midnight the next day, as we calculate, then there was a vacancy. The district court standing order to fill the vacancy resulting from the end of Habba’s term is effective July 22, or 120 days from her appointment, whichever is later. While it is hair-splittingly technical, the government’s argument is that by jumping the gun with a resignation, Habba created a vacancy she could fill under the FVRA before Grace’s appointment went into effect upon the expiration of 120 days.

Whether that argument works depends on if Habba could succeed herself as U.S. attorney by momentarily resigning and being appointed first assistant. But there are profound statutory issues with allowing an appointment under the FVRA when a specific prior appointment expired under 18 U.S.C. § 546. Although courts have generally permitted FVRA appointments even when a specific statute applies (and the Office of Legal Counsel has opined that the FVRA provides an alternative path for filling vacancies), that’s not entirely clear from the statute itself. The FVRA says it is “exclusive,” unless a specific statute provides otherwise, leaving it unclear whether both the FVRA and the specific statute apply or whether only the specific statute applies in that event. Indeed, the government’s main defense for using the FVRA instead of a specific statute is that it got away with doing that in the first Trump administration with Acting Attorney General Matthew Whitaker.

The cases generally holding that both the FVRA and the specific statute may apply also do not, however, involve the tag-team combination of statutory authority at issue in New Jersey. In this case, the government is not arguing that it may proceed under either statutory scheme—it appears to be arguing that it may use both, one after the other.

Using both the FVRA and the specific statute for the same vacancy raises some additional problems. To start, the 210-day limit under the FVRA is inconsistent with the 120-day specific limit in § 546 (after which the district court chooses). And under no circumstances does either statute contemplate a combined 330-day limit for the service of an acting U.S. attorney, which appears to be what the administration seeks here (120 days of § 546 followed by 210 days of the FVRA). Such an outcome would fly in the face and structure of both statutes, and—by authorizing the appointment of an officer for longer than Congress deemed necessary—would raise constitutional questions.

Then there’s the problem of vacancies. Assuming the FVRA applies, it kicks in only if the office is vacant. The district court’s appointment was intended to fill a vacancy that would arise when Habba’s appointment ended and can be construed as effective on July 22, or when Habba ceased to hold the interim position by resigning. Firing Grace as a civil service employee did not terminate her appointment by the district court. Even if the president had the authority to terminate the appointment under § 541(c) (and it’s not entirely clear he has the power to do so under the statute, though the Supreme Court would likely give him that power if pressed), he did not do so until July 26—after Habba resigned. If (contrary to the technical reading the government relies on) Grace’s district court appointment took effect on July 24, upon Habba’s resignation, there was no vacancy for Habba to fill under the FVRA.

Even if the FVRA applies, it’s not clear whether Habba’s resignation and appointment as first assistant qualifies her for appointment under 5 U.S.C. § 3445(a). The hitch is that she served as first assistant for less than 90 days, and the president had submitted her name as nominee for U.S. attorney. Congress made first assistants without 90 days of prior service ineligible if “the President submits a nomination of such person to the Senate for appointment to such office.”

As the government acknowledges in its motion to dismiss, Congress was trying to prevent the FVRA from being used to move nominees into Senate-confirmed positions before Senate action. The government argues that only a “current nomination” is disqualifying. But it seems equally inconsistent with congressional purpose to use the FVRA to appoint a nominee the Senate won’t confirm as one it hasn’t yet decided to confirm. The timing of “submits” is not clear. If the disqualification applies to a person once the president “submits” her nomination, then Habba is disqualified, notwithstanding the later withdrawal. On the other hand, if the disqualification is limited to a person who was already a first assistant serving for less than 90 days at the time the president submits the nomination, she probably isn’t. It’s not clear from the record when on July 24 in relation to her 5 p.m. resignation and metamorphosis into first assistant Habba’s nomination was pulled from the Senate since the actual Senate transmittal was not provided in the attachments, and, as described above, the filing is unclear on the actual sequence of events on July 24.

Clearing Up Three Misconceptions About New Jersey

There are several things that are not mysterious; they are just wrong. First, contrary to assertions by Blanche, the judges did not “force out” or remove Habba by choosing someone else to appoint. Her term was about to expire, and the court was under no obligation to appoint the person chosen by the attorney general for the interim role. 28 U.S.C. § 546(a) authorizes the attorney general to appoint an interim U.S. attorney to fill a vacancy who “may serve until the earlier of—(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or (2) the expiration of 120 days after appointment by the Attorney General under this section.”

Second, the court’s use of express statutory authority to appoint Grace was not “rogue” as Attorney General Bondi claims. The statute is explicit and has been used often, and the Supreme Court has upheld the “interbranch” appointment of a prosecutor by a court. In Morrison v. Olson, 487 U.S. 654, 676 (1988), the Supreme Court stated: “Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors.” While Justice Antonin Scalia wrote a vigorous solo dissent in Morrison—and some view the decision as on the shortlist for overruling—that view is tied to the broader controversy over presidential removal power discussed below. Under the current law, the district court had clear statutory and constitutional authority to choose a U.S. attorney to serve once Habba’s 120-day term expired. In short, there was nothing “rogue” about the district court’s actions. What’s more (other than selecting Habba herself), the district court took what is, in many ways, the most conservative and deferential approach possible in appointing Grace: She was the next most senior person in the office, and she was named to that position by Habba.

Third, Bondi had no authority to remove Grace as acting U.S. attorney, despite her and Blanche’s tweets to the contrary. In addition to her appointment by the district court, as an assistant U.S. attorney Grace is also a civil servant. Subject to any applicable civil service protections (which appear to have been violated here also), the attorney general can fire Grace from her position as an employee of the Justice Department. But Grace’s appointment by the district court as interim U.S. attorney is not contingent on her being a department employee at all. The attorney general simply does not have the implicit authority to remove an officer whom she had no power to appoint in the first place; under the statute, only the president could initiate that removal, which he apparently did days after Bondi wrongly announced that Grace had been “removed.” Firing Grace from her civil service position has no impact on her lawful appointment by the district court as interim U.S. attorney.

Broader Implications

The dispute over the district court’s appointment power in this particular case is part of a much larger controversy concerning presidential power over the executive branch. It may be that one of the reasons it is hard to follow the statutory path of recent appointments and removals is that the administration doesn’t particularly care if its statutory argument works or not. The current administration’s view—which goes well beyond previous articulations of a “unitary executive” theory—appears to be that the president may choose (under Article II) who fills nearly any position in the executive branch at any time, without regard to statutes creating offices and agencies and specifying the manner of appointment and removal of executive officers. But just as it is the function of the judicial department to say what the law is, it is the function of Congress to create offices and specify the mode of appointment and removal.

The president’s default power to remove those he appoints stems from the understanding that removal power is generally implicit in the power to appoint, although there are exceptions (for example, the comptroller general is appointed by the president but can be removed only by impeachment or joint congressional resolution). What’s more, the standard narrative used to argue for strong presidential removal authority itself suffers from some fundamental weaknesses. Contrary to legend, Congress did not “decide” in 1789 that the president had inherent constitutional power to remove executive officers at will. Madison himself said that “because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the Legislature to say upon what terms the office shall be held, either during good behavior or during pleasure.” In other words, Congress has the power to set both the manner of appointment and conditions of removal.

The administration’s contrary view is ostensibly based on Article II, as exemplified by Bondi’s post regarding the alleged “threat” to the president’s “core Article II powers” from the district court’s appointment of Grace. But this view really depends on the gloss on Article II recently placed on the text in Chief Justice John Roberts’s opinion in Seila Law: “Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’ Art. II, § 1, cl. 1; id., § 3.”

The opinion’s paraphrase changes the constitutional emphasis from executing the laws (including those specifying the modes of appointment and removal) to occupying the entirety of the executive branch (regardless of those laws). Rather than harmonizing the Vesting Clause with the rest of Article II, the language in Seila Law implies a conflict within Article II between inherent presidential powers to act through others and statutes about how executive offices are filled, even though Article II gives Congress the power to enact them. In his subsequent opinion on presidential immunity, the chief justice seems to resolve that conflict in favor of inherent presidential power. That is the position the administration is articulating when it rejects the proposition that anyone other than the president’s choice can hold the office of U.S. attorney for the District of New Jersey.

But it is Congress that decides by law what offices to create within the executive branch and, subject to the Appointments Clause, how those offices should be filled. By default, removal power is tied to appointment, but Congress can deviate from the default position. The laws governing removal of officers from departments and agencies created by Congress, like any other laws, bind the president to their faithful execution.

The same is true for the laws Congress may pass specifying the mode of appointment for inferior officers—including by the courts (as is the case for interim U.S. attorneys). The president has a duty to uphold those laws just as he does any other. He can choose the U.S. attorney for the District of New Jersey, but he must obtain Senate concurrence for the appointment. He cannot shortcut that requirement by making an interim appointment through the attorney general and then demand that the courts treat the temporary filling of a vacancy as equivalent to a permanent appointment by requiring that the courts appoint the same person or otherwise be branded “rogue.” And he cannot stack the FVRA on the back of § 546 to create a statutory chimera allowing for a 330-day appointment of an individual whom he has previously nominated for the very position he seeks to fill.

There will no doubt be further actions by the administration to push the boundaries of its capacious theory of executive authority to appoint and dismiss federal personnel at all levels. The invocation of “Article II” as the basis for removing Grace from her civil service position shows that the theory does not stop with officers. But Congress has a role to play in the structuring of the executive branch, and it is the president’s duty to faithfully execute the laws enacted by Congress—whether they serve his policy preferences or not.