WASHINGTON — President Donald Trump found a way to sidestep congressional scrutiny during his first term: using federal officials in acting, or temporary, roles.
“I like ‘acting.’ It gives me more flexibility. Do you understand that? I like ‘acting.’ So we have a few that are ‘acting,’” Trump told reporters on the White House lawn in 2019, one of many instances when he talked about his “actings.”
Trump’s latest “acting” is Alina Habba, his pick to be New Jersey’s top federal prosecutor. Habba is an ardent Trump loyalist, a campaign surrogate and a political lieutenant who has vowed revenge on elected Democrats and people who cross the president.
Trump on Monday named Habba interim U.S. attorney for New Jersey, a law enforcement jurisdiction known for its record of public corruption cases.
More on the appointment and the process
Habba criticizes Booker, Murphy
The post has also been a jumping-off point for high-profile people within legal circles, including Supreme Court Justice Samuel Alito, who held the role in the late 1980s, and former New Jersey Gov. Chris Christie. From that position, Christie prosecuted Charles Kushner, father of Jared Kushner, who is married to Trump’s daughter Ivanka, for tax evasion and other charges.
On Monday, Habba criticized, without specific accusations, New Jersey senator Cory Booker and Gov. Phil Murphy.
‘If anybody thinks Elon was bad, wait for me. I’m coming for New Jersey.’ — Alina Habba said on Fox News.
“There is corruption, there is injustice and there is a heavy amount of crime right in Cory Booker’s backyard and under Governor Murphy and that will stop,” Habba said to reporters. “I think Governor Murphy and Cory Booker have failed New Jersey. If you look at crime in Newark, Camden. This has been a neglected state. It is one of the most populated for its size and it needs to stop.”
On Fox News on Monday night, Habba, who introduced Trump at campaign rallies during the 2024 race, threatened to prosecute Democrats critical of the administration.
“If you threaten anybody,” Habba said, “we’re going to come at you.”
She added: “If anybody thinks Elon was bad, wait for me. I’m coming for New Jersey.”
‘An unacceptable partisan choice’
A representative for Murphy declined to comment, and spokespeople for Booker did not respond to requests for comment.
A spokesperson for the Camden County Police Department also declined to comment on the record but cited data showing a decline in crime overall.
“The announcement of Alina Habba to be interim U.S. Attorney in New Jersey is an unacceptable partisan choice that will leave New Jersey ill-prepared to take on dangerous challenges like gun violence and drug trafficking,” Sen. Andy Kim (D-NJ) said in a statement to NJ Spotlight News. “We must do better to keep our communities safe.”
Habba is one of several loyalists Trump picked for law enforcement roles, including Attorney General Pam Bondi, who was a defense attorney during one of Trump’s impeachment trials.
Others include Emil Bove, who, in the early weeks of the administration, was the acting deputy attorney general, the No. 2 spot at the Department of Justice, and Todd Blanche, who now fills that role.
Blanche, Bove and Habba all worked as defense attorneys for Trump on various court cases.
Credit: (Shannon Stapleton/Pool Photo via AP, File)
Jan. 11, 2024: Lawyers Christopher Kise and Alina Habba flank Donald Trump closing arguments in the Trump Organization civil fraud trial at New York State Supreme Court in Manhattan.
Trump’s pick to be solicitor general, the U.S. government’s top lawyer before the Supreme Court, is Dean Sauer, who represented Trump in a federal immunity case last year, when he argued a president could order U.S. soldiers to kill a political rival and not face prosecution.
No prosecutorial experience
Habba has not been a prosecutor and her firm, which says its office is in Bedminster, where Trump has a social club, does not list any areas of criminal law as part of its focus.
Since Trump picked Habba in an acting capacity, she will not face Senate confirmation, which would require a vetting process, including financial disclosure.
Trump has named nominees in an ‘acting’ or ‘interim’ capacity in a way that skirts Senate oversight.
The office of the U.S. attorney for New Jersey includes 170 staff, according to its website, and offices in Camden, Newark and Trenton.
“Acting is not inherently, in and of itself, necessarily a bad thing,” Faith Williams of the Project on Government Oversight, or POGO, a nonpartisan watchdog group, said in an interview. “This over reliance on acting [roles] is problematic,” said Williams, director of the Effective and Accountable Government Program at POGO.
Unless the staffer in question has already cleared background checks for another government job, it’s possible, as Williams put it, that “you have someone sitting in that position of power who has not been vetted.”
Filling government jobs
A federal law, the Federal Vacancies Reform Act, provides direction for how to fill open positions that require presidential appointment and then confirmation from the Senate.
In the sprawling organization that is the U.S. government, positions inevitably open up, and people are needed to fill them.
To fill the roughly 1,300 positions that require Senate confirmation can take time, making the use of acting officials vital to keep federal programs and agencies running.
Credit: (AP Photo/Evan Vucci)
Oct. 27, 2024: Alina Habba speaks before Republican presidential nominee former President Donald Trump speaks at a campaign rally at Madison Square Garden, New York City.
In general, if the president has not nominated anyone to fill a given position, the person in that role on an acting basis can serve in the role for 210 days, or about seven months. For U.S. attorneys, they may serve in a temporary capacity for 120 days if the attorney general appointed them to the post, according to a separate section of the federal law. In Habba’s case, she said Trump appointed her.
Similar to Trump’s threat last year to use an unusual procedure to avoid the Senate confirmation process for his nominees, Trump has named nominees in an “acting” or “interim” capacity, skirting Senate oversight.
“Acting officers serve in positions that normally require Senate consent, and they have all the same power as their Senate-confirmed counterparts. But there is one crucial difference: Acting officers serve without Senate advice and consent,” Thomas Berry of the conservative-leaning Cato Institute wrote in December. “When key positions are filled by acting officers, the Senate has neither vetted nor voted on the people making important decisions that affect our daily lives,” Berry wrote. “This is not the system that the Framers envisioned.”
The Trump pattern
Still, Senate confirmation, depending on the position, can take months, or even years — an argument in favor of the use of interim roles. “There’s a nugget of truth in there,” Williams said.
Nominees to fill the nation’s 93 U.S. attorney posts typically zip through the committee confirmation process without a hearing, gliding to the Senate floor where they’re confirmed with ease, often by voice vote.
That process generally plays out with support from home-state senators, Carl Tobias, a law professor at the University of Richmond, said in an interview.
Tobias, who tracks judicial and executive-branch nominees, said the common themes of U.S. attorney nominees this term are inexperience and support for the president.
“What they’re united by is their loyalty to Trump,” Tobias said. “A number of them have virtually no experience as a prosecutor, especially in the federal system,” he said. “I’ve seen enough to see a pattern.”
The day-to-day job of a U.S. attorney, especially in a larger office like New Jersey’s, requires managing a staff of FBI agents and prosecutors, and making difficult decisions about what cases to pursue, which ones to drop and which indictments to bring.
“It’s about good judgment,” Tobias said. He added of Habba: “Does she know anything about managing anything other than her own personal law office?”
[Editor’s note: This article has been updated to include reference to a separate section of the federal law as it applies to certain U.S. attorney appointments.]
