Donald Trump faces mounting obstacles in his strategy to place loyalists in U.S. Attorney positions without Senate approval, prompting the normally stubborn and confrontational president to explore alternative approaches.
According to reporting from Politico's Erica Orden, the resignation of Trump appointee Alina Habba signals that the administration recognizes its legal position has weakened and may be reluctant to pursue the matter before the Supreme Court.
Habba, a former personal attorney to the president who represented him when he lost two defamation lawsuits filed by writer E. Jean Carroll, stepped down this week following a court ruling that deemed her appointment unlawful. In her statement, she explained, "As a result of the Third Circuit's ruling, and to protect the stability and integrity of the office which I love, I have decided to step down in my role as the U.S. Attorney for the District of New Jersey."
Delaware U.S. Attorney Julianne Murray subsequently resigned, also citing the Habba ruling as her reason for stepping down.
Legal experts indicate the administration faces a difficult calculus moving forward. Carl Tobias, a law professor at the University of Richmond, outlined the administration's limited options when speaking with Politico: suggesting they could "...continue to try to install temporary U.S. attorneys, only to repeatedly have those choices disqualified by courts, or attempt the traditional process of Senate confirmation."
Tobias suggested the White House may be hesitant to escalate the matter to the Supreme Court, noting, "I think the last thing they want is to have the Supreme Court say no, right? Because then the game is over. ... they can continue to do what they've been doing, and that is avoiding advice and consent, which is in the Constitution, which they've done in more than half the districts, and continue to play games with the system."
Nina Mendelson, a professor at the University of Michigan Law School, cautioned that a Supreme Court decision could cut either way, with potential long-term implications. She wrote in an email to Politico, "If [the administration] does appeal, the Supreme Court may, on the one hand, be interested in preserving the Senate's constitutional function of advice and consent and thus narrowly interpret the President's authority to appoint acting US Attorneys. On the other hand, the Supreme Court has, in a series of cases, expressed its concern for presidential control and flexibility, which might prompt it to more generously interpret the President's power."
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