What Trump and Pam Bondi Are Doing in New Jersey Is a Bigger Deal Than You Think

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On Tuesday, the Trump administration launched its most direct and aggressive confrontation with the judiciary so far: The Justice Department rejected a federal court’s authority to name a new U.S. attorney to New Jersey to replace Alina Habba, the president’s unqualified and sycophantic interim appointee. In replacing Habba, Donald Trump’s former personal lawyer, the court was acting under an express grant of power provided by Congress—one explicitly permitted by the Constitution and sanctioned by history reaching back to 1789. Nonetheless, the administration responded by firing Habba’s constitutionally appointed replacement from the U.S. attorney’s office, then slandered the court as a corrupt body of “rogue judges” allegedly “colluding” with Democrats to “override the authority of the Chief Executive.”

It is, of course, highly unusual for the executive branch to dismiss the power of the judiciary with such vitriol and disdain. But this administration seems emboldened by the Supreme Court’s own disrespect toward the lower courts, paired with the justices’ expansion of executive authority to new, monarchical extremes. SCOTUS all but teed up this showdown between the two branches by awarding Trump more control over the entire federal government than perhaps any president in history has had. It should come as no surprise that he wields this presidential supremacy to reject core duties of the other two branches.

As is so often the case, this crisis is largely one of Trump’s own making. The president appointed Habba as interim U.S. attorney for New Jersey despite her utter lack of qualifications and her mottled record as a lawyer. Habba won the appointment by serving as Trump’s personal lawyer in civil cases, including sexual harassment lawsuits. She has no prosecutorial experience, and was sanctioned by a federal judge in 2023 for filing a “completely frivolous” lawsuit against Hillary Clinton on Trump’s behalf. (She’s also facing an ongoing ethics investigation for her questionable work on a sexual harassment case involving a Trump employee.) As interim U.S. attorney, Habba destroyed morale among prosecutors through unprofessional behavior and partisan misconduct. Among other acts, she disbanded the office’s storied Civil Rights Division and filed absurd criminal charges against two Democratic politicians, Newark Mayor Ras J. Baraka and New Jersey Rep. LaMonica McIver. (A federal judge harshly criticized the Baraka indictment, which has since been dropped; the mayor is now suing Habba for malicious prosecution.)

These antics made Habba the rare Trump nominee who could not secure confirmation in the Senate. And as an unconfirmed interim U.S. attorney, her tenure expired after 120 days under the federal statute governing this position. That law says that after 120 days are up, the attorney general may name someone else as new interim U.S. attorney—or the federal district court “may appoint” a U.S. attorney who serves “until the vacancy is filled.” Attorney General Pam Bondi evidently decided not to line up another loyalist to replace Habba; instead, she and Habba reportedly lobbied the judges on New Jersey’s U.S. District Court to reappoint her. That effort flopped, and the court instead named Habba’s first assistant, Desiree Leigh Grace, to replace her. Grace is an experienced and respected prosecutor, and her selection was approved by Chief Judge Renée Marie Bumb, a George W. Bush appointee.

The Justice Department retaliated quickly: Within hours, Bondi announced that Grace had been fired from the U.S. attorney’s office. (Bondi suggested that she fired Grace, but only the president can fire an interim U.S. attorney, so Deputy Attorney General Todd Blanche had to clarify that the termination came from Trump.) The DOJ, Bondi wrote, “does not tolerate rogue judges—especially when they threaten the President’s core Article II powers.” Her response rested on the allegation that the district court had violated the law by replacing Habba with its own, far more qualified pick.

Bondi is wrong. The district court was acting pursuant to federal statute awarding it this power. And, in enacting this law, Congress was acting pursuant to an authority spelled out in the Constitution. The Trump administration believes that Article 2 crowns the president a king with absolute control over the executive branch. But the text of Article 2 refutes this idea: It allows Congress to “vest the appointment” of inferior officers “in the courts of law.” U.S. attorneys are inferior officers, as the Justice Department itself acknowledges. And Congress has long allowed courts to appoint them; indeed, the Senate’s initial draft of the Judiciary Act of 1789 gave district courts alone the discretion to appoint prosecutors.

Victoria Bassetti, a senior adviser at States United Democracy Center and an expert on interim U.S. attorneys, told me this practice has a rich tradition. “There is a long history of courts appointing prosecutors in the U.S., stretching back to the earliest days of our country,” Bassetti said. “In fact, it was not at all uncommon for prosecutors to be a part of the judicial branch in the early 19^th century.” Notably, the Trump administration previously seemed to accept this reality: Already this year, courts have already appointed 11 interim U.S. attorneys, and the Justice Department did not object. That’s presumably because, in those instances, the courts allowed Trump’s interim appointee to continue serving. The DOJ only decided this arrangement is unconstitutional after a district court declined to appoint Trump’s chosen prosecutor.

In fairness, Bondi’s position may draw some support from the current Supreme Court, as ahistorical and anti-textual as it may be. In June, three conservative justices signaled that they think “inter-branch” appointments like this one are inconsistent “with the original understanding of the separation of powers.” And in Trump v. United States, the Republican-appointed majority embraced a sweeping vision of presidential power that leaves little room for Congress or the judiciary to regulate the actions and personnel of the executive branch. Then there are the optics: Even six months ago, it might have seemed unwise for the Trump administration to treat a federal court with such contempt. But this Supreme Court has rewarded the president and his deputies for defying judicial orders and neutered district courts’ attempts to rein them in. Last month, Justice Ketanji Brown Jackson warned of her colleagues’ “complicity in the creation of a culture of disdain for lower courts.” By embracing that “disdain,” SCOTUS may have encouraged the Trump administration to escalate its battle against the judiciary by rejecting the validity of its constitutional power of appointment.

What happens next? By firing Grace, Bondi did not actually prevent her from serving as the next U.S. attorney for New Jersey; there is no requirement that the appointee be a current employee of the office. So Grace can still show up for work. But Trump can swiftly fire her if she does, creating another vacancy. At that point, the legal questions get even muddier. The statute governing interim appointees puts a 120-day limit on their service, so under the spirit of the law, Habba should not serve again. And a different law, the Federal Vacancies Reform Act, bars her appointment as an acting U.S. attorney because her nomination remains pending in the Senate.

But as Anne Joseph O’Connell, a Stanford Law professor who specializes in vacancy issues, has pointed out, there is no penalty for reappointing an interim U.S. attorney after her term expires. For instance, it is not clear that a court would need to void her actions on the ground that she was invalidly reappointed. So Trump may attempt to reappoint Habba—a move sure to set off another legal fight that could culminate in another showdown with the federal court. Every party facing prosecution by Habba could argue that she was unlawfully appointed, rendering all charges against them invalid. That claim would be adjudicated in the very district court that tried to replace Habba. Even if the gambit ultimately failed, it could create enough problems to persuade the Justice Department to land on a permanent, qualified U.S. attorney for New Jersey.

This mess could have been avoided. There’s no shortage of hard-right lawyers whom Trump could tap for this job to carry out a conservative agenda. But the president wanted an obedient hatchet woman who would persecute his political adversaries and try to help a Republican win the upcoming gubernatorial election, as Habba bragged she would. The district court had every right to send her packing once her term expired. And any other administration probably would have accepted the judges’ choice as the legitimate exercise of constitutional powers. To this president, though, the Constitution is just a cudgel to be wielded against anyone who tries to check his lawless abuses—a view routinely affirmed by the Supreme Court. Is it any surprise that he now treats the judiciary as just another obstacle to be bulldozed?

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