A panel of three judges has rejected U.S. Attorney General Pam Bondi’s effort to maintain a Trump supporter in the position of chief federal prosecutor for New Jersey. The court’s decision on Monday disqualified Alina Habba from cases involving her challengers.

In a unanimous decision crafted by Senior U.S. Circuit Judge D. Michael Fisher, the 3rd U.S. Circuit Court of Appeals emphasized the Trump administration’s desire to place favored individuals in U.S. attorney roles without going through Senate confirmation hearings or adhering strictly to constitutional procedures. Judge Fisher underscored that the people of New Jersey and federal employees require “clarity and stability” regarding Habba’s authority in her position.

Judge Fisher elaborated, “The appointment of a U.S. Attorney requires Senate confirmation, and where there’s a vacancy, Congress prefers an acting officer with substantial experience to guide the office effectively. The current administration’s attempts to promote Alina Habba, its choice for the U.S. Attorney for the District of New Jersey, highlight the obstacles it faces. Despite these challenges, the residents of New Jersey and the committed staff in the U.S. Attorney’s Office deserve a clear and stable leadership.”

The panel concluded that Habba was not legally permitted to serve as the acting U.S. attorney because she was not the first assistant at the time the vacancy occurred. Additionally, even though President Trump withdrew her nomination, she could not assume the acting role nor fulfill the duties of the U.S. attorney under her dual title as special attorney granted by Bondi.

The court clarified, “The Government asserts that Habba is the Acting U.S. Attorney for New Jersey under the FVRA due to her designation as First Assistant U.S. Attorney. We must determine: (1) if only the first assistant present at a PAS officer’s resignation automatically takes on acting duties under § 3345(a)(1); and (2) whether the nomination bar in § 3345(b)(1) precludes someone from assuming acting duties if their nomination is no longer before the Senate.” The court affirmed both points affirmatively.

Later, the panel also smacked down Habba’s special attorney title as “prohibited by the FVRA’s exclusivity provision.”

Senior U.S. Circuit Judge D. Brooks Smith, a George W. Bush appointee like Fisher, and U.S. Circuit Judge L. Felipe Restrepo, a Barack Obama appointee, joined the opinion.

Habba was first named interim U.S. attorney in March as Trump nominated her to the permanent position. When the 120-day interim stint neared its end, the New Jersey federal district court declined to extend her stay under 28 U.S.C. § 546, leading Bondi to lash out against so-called “rogue judges” in late July.

The district court had instead appointed Habba’s then-first assistant Desiree Grace — the second in command at the U.S. attorney’s office — to fill the vacancy upon the expiration of Habba’s interim stint. But before the interim term ended, Bondi claimed “politically minded” judges had interfered with Trump’s “core Article II powers,” and Grace was fired.

After Trump pulled Habba’s nomination as permanent U.S. attorney, Habba resigned as interim U.S. attorney and was appointed simultaneously to the ousted first assistant’s position under the Federal Vacancies Reform Act (FVRA) — elevating her to acting U.S. attorney by default. At the same time, Bondi named Habba a special attorney under 28 U.S. Code § 515, delegating to Habba the power to act as a U.S. attorney through another means as the office’s supervisor.

Chief U.S. District Judge for the Middle District of Pennsylvania Matthew Brann, sitting by designation, ruled in August that Habba was disqualified from the cases of Cesar Pina, Julien Giraud Jr., and Julien Giraud III because Bondi’s method of keeping Habba in place after her 120-day interim stint ended was not lawful.

During oral arguments in October, the circuit judges did not jump at the chance to tip their hands in the DOJ’s favor, with Smith openly challenging Bondi’s counselor Henry Whitaker at the tail end of the proceeding to “come up with an example of any time” a non-Senate confirmed temporary U.S. attorney was installed as Habba was.

“Well, I guess I cannot,” Whitaker answered, still claiming that there had been analogous situations.

On Monday, the panel provided specifics on its views as to why Bondi’s gambit could not succeed, leaving the DOJ with an opportunity to seek an en banc rehearing at the 3rd Circuit or to petition the U.S. Supreme Court to step in.

The appellate judges were unpersuaded by the DOJ’s arguments that a lone district judge had threatened to “cripple the functioning of government” by ruling against a “past practice” for filling temporary vacancies.

“The Government finally argues that past practice by various administrations indicates its reading of the statute aligns with Congress’s intent. This argument is unpersuasive. First, just because a practice previously went unchallenged does not mean it complies with the FVRA,” the panel noted.

Separately, the 3rd Circuit said, Congress’ efforts to shore up its own “advice-and-consent power” through the legislation like the FVRA is far from new.

“The final statute was a compromise: Congress granted the Executive additional flexibility by lengthening the limitations period and expanding ‘the pool of individuals the President could appoint as acting officers,’” the opinion said. “But while it granted this added flexibility, Congress—as it has done on many occasions since George Washington’s first Presidential term—acted in response to the ‘interbranch conflict’ and ‘tensions’ arising from the Executive branch’s continued attempts to contravene the Senate’s advice-and-consent power.”

To accept the DOJ’s arguments here, the panel continued, would be to render statutory limitations on the executive “mostly superfluous.”

“On the contrary, allowing rejected (and withdrawn) nominees to serve as later-appointed acting officers during that vacancy would significantly undercut Congress’s solution to its separation-of-powers concerns,” the court summed up.

Nor did Bondi’s delegation to Habba of the “full panoply of powers of a U.S. Attorney” through a special attorney title stand up to scrutiny.

“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely. This view is so broad that it bypasses the constitutional PAS process entirely,” the opinion concluded. “It also essentially eliminates the requirements of the FVRA and the U.S. Attorney-specific statute, § 546. The Government’s arguments to the contrary are unavailing.”

That the DOJ embraced a loophole which would “effectively permit[] anyone to fill the U.S. Attorney role indefinitely,” the court said, “should raise a red flag, given the careful time limitations included in both the FVRA and the U.S. Attorney-specific statute.”

“As it stands, Habba alone is exercising all the powers of a U.S. Attorney, making her an Acting U.S. Attorney whose appointment is not FVRA-compliant,” the panel added, upholding Brann’s disqualification order.

Read the full opinion here.