The U.S. Department of Justice is urging a federal appellate court to re-evaluate a decision that annulled President Donald Trump’s selection of Alina Habba as the leading federal prosecutor for New Jersey. This legal tug-of-war follows Trump’s March 2025 interim appointment of Habba as U.S. Attorney for the District of New Jersey, a move that was intended to be solidified with a formal nomination.

However, the nomination quickly hit a brick wall, with several senators signaling their opposition, effectively dooming Habba’s prospects. In response, the Department of Justice attempted a series of strategic maneuvers to retain Habba in the role despite the Senate’s resistance.

Faced with the looming Senate rejection, Trump withdrew Habba’s name for the permanent position, prompting her resignation. In a calculated shuffle, Habba’s first assistant was dismissed, allowing her to return to a lesser role. This reinstatement positioned her as the Acting U.S. Attorney, being the most senior official left in the office. Yet, this was met with dispute from New Jersey’s federal judiciary, which preferred Desiree Leigh Grace, the ousted first assistant, to take the helm.

In August 2025, the controversy escalated to the courts, where a federal district judge ruled in favor of criminal defendants seeking to disqualify Habba from their prosecutions. This verdict sided with the judiciary’s preference and marked a significant setback for the Department of Justice’s efforts to maintain Habba’s appointment.

In August 2025, a federal district judge sided with criminal defendants who sought to disqualify Habba from prosecuting their cases. This ruling explicitly sided with the judiciary and against the DOJ.

“Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not,” Middle District of Pennsylvania’s Chief U.S. District Judge Matthew Brann, a Barack Obama appointee, who was assigned to take over the case, wrote.

In December 2025, a three-judge panel on the U.S. Court of Appeals for the 3rd Circuit affirmed the lower court’s decision.

Now, the Trump administration is asking the full appellate court to rehear the case, arguing the panel “improperly” and “erroneously” interpreted the Federal Vacancies Reform Act of 1998 (FVRA).

“Indeed, the panel’s interpretation of the FVRA would hobble Presidential transitions and has been routinely violated by the last four administrations without any court holding the practice unlawful,” the 21-page petition reads. “Rehearing en banc is warranted.”

To hear the government tell it, the panel made a mistake when describing Habba as a “de facto” U.S. Attorney.

“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,” the panel opined in its 32-page opinion. “This view is so broad that it bypasses the constitutional [appointment and confirmation] process entirely.”

In essence, the panel said the government simply tried to imbue Habba with far too much authority. Specifically, the court said Habba had been “delegated the full scope of powers of an Acting U.S. Attorney.” This grant of power, in effect, created a workaround that did not deal with the strictures of the FVRA, the panel found.

The government, however, says the panel read far too much into Habba’s appointment and that it was done in line with the FVRA.

“Here, the Attorney General delegated the authority to prosecute crimes and supervise litigation in the District of New Jersey to Ms. Habba as the First Assistant U.S. Attorney for the district,” the petition goes on. “The plain text of the FVRA does not prohibit that delegation: the FVRA does not prohibit the exercise of delegable functions.”

Rather, the government says, the relevant section of the FVRA is an “exclusive” vehicle for installing acting officials while the appointment and confirmation process plays out – instead of a means by which to police a delegation of authority.

“It does not purport to prohibit the exercise of delegable functions by non-acting officials,” the petition continues.

In other words, the government is arguing that the statute cited to disqualify Habba “simply does not address” the issue.

The Trump administration further argues that, to the extent the FVRA might apply in a case like Habba’s, a separate section of the statute only purports to invalidate “non-delegable, exclusive functions” of an office.

Trying for a logical argument, the petition notes that the U.S. attorney general routinely and “broadly” delegates her authority “such as her delegation to the Deputy Attorney General to exercise all the non-exclusive functions of the Attorney General, which includes the non-exclusive functions of each and every U.S. Attorney.”

“There is no reason why Congress would have prohibited the delegation of all the delegable duties of an office but allowed the delegation of all but one (or two, or three, or four) of those duties,” the filing goes on. “Those are the limits that Congress chose.”