By Scott A. Coffina
The past week at the United States Attorney’s Office in New Jersey could have been labeled with the name of the 80’s sitcom “Who’s the Boss?”
Alina Habba had been Interim U.S. Attorney since the Attorney General appointed her on March 24, 2025. Pursuant to 28 U.S.C. 546, Ms. Habba’s appointment was limited to 120 days.
With Ms. Habba’s appointment set to expire on Friday, July 25, the law authorized the judges of the district court for New Jersey to appoint a U.S. Attorney until one is confirmed by the Senate. President Trump had nominated Ms. Habba for the position, but the Senate did not act on her nomination, and the opposition of New Jersey’s Democratic Senators, Cory Booker and Andy Kim, put her confirmation in doubt. Therefore, just days before Ms. Habba’s appointment was set to expire, the judges of the district court met and decided to appoint a different U.S. Attorney, Desiree Leigh Grace, an experienced prosecutor who had been serving as Ms. Habba’s top deputy.
So, Grace in, Habba out, right? Wrong. Ms. Habba is the President’s choice, and the Justice Department immediately fired Ms. Grace as First Assistant U.S. Attorney, and appointed Ms. Habba to that position, from which she can serve as Acting U.S. Attorney while the lead position remains vacant. To pull off this maneuver, however, the President had to withdraw Ms. Habba’s nomination, because she cannot serve in an acting capacity while her nomination is pending. She can remain in this position for at least 210 days.
We can envision court challenges in the coming weeks to Ms. Habba’s latest appointment. Opponents may argue that the mere submission of her nomination bars her from serving as Acting U.S. Attorney, and withdrawing the nomination does not cure the problem. On the other hand, the Trump Administration may challenge the law allowing the district court to appoint an Acting U.S. Attorney, an executive branch officer, on separation of powers grounds.
Ms. Habba has developed a record during her tenure as interim U.S. Attorney by which she should be judged. She has had several notable accomplishments, such as increasing the resources of the U.S. Attorney’s Office and aggressively prosecuting opioid distribution cases and violent crime. She has forcefully and unapologetically pursued the agenda of the President who appointed her, on which he ran and was elected.
She also has courted controversy by opening an investigation into Governor Phil Murphy over his comment that he personally would house an illegal immigrant to shield them from deportation, and charging two Democratic officials, Newark Mayor Ras Baraka (trespassing) and Representative LaMonica McIver (assault) following a confrontation at the ICE facility in Newark. The trespassing charge against Mayor Baraka was quickly dismissed, drawing sharp criticism from a Magistrate Judge suggesting the arrest was aimed at advancing a political agenda.
Ms. Habba is also the subject of a Hatch Act complaint that roiled the waters just days before the District Court was set to vote on her appointment. The Hatch Act prohibits federal employees from using their official position to advocate for the election or defeat of a political candidate or party. Violations could result in termination of federal employment.
This complaint against Ms. Habba – presented by the left-leaning, devoutly anti-Trump, Democracy Defenders Club – is transparently frivolous and opportunistic. The complainants allege that Ms. Habba violated the Hatch Act during an interview with podcaster Jack Posobiec, on March 27, 2025. Responding to a comment from Mr. Posobiec about how close the presidential election had been in New Jersey, Ms. Habba said, “We could turn New Jersey red. I really do believe that. There is momentum right now. President Trump’s agenda is working.” She then transitioned to discussing the President’s law enforcement priorities that would soon be her responsibility as U.S. Attorney – making New Jersey safer, kicking out “illegals” who commit crimes, and supporting law enforcement officers.
The complaint asserts that “Ms. Habba appropriately discussed the President’s law enforcement priorities at the meeting. That is part of the job of a United States Attorney. She should not, however, in the same speech connect those policies to future election results by saying that “we could turn New Jersey red.” She is expressly encouraging voters to support the President’s policies by electing Republicans. That crosses the line from an official statement to a political statement.”
That alleged “political statement,” in their view, violates the law.
Nonsense. The cited comments did not violate the Hatch Act. Ms. Habba merely observed that President Trump’s policies could turn New Jersey “red.” She didn’t urge anyone to go to the polls to elect Republicans or defeat Democrats (New Jersey was more than seven months from its upcoming gubernatorial election), and quickly transitioned to the law enforcement priorities of her upcoming position.
There are several other “tells” that this complaint is nothing more than a political hatchet job. First, is its timing. The complaint about Ms. Habba’s March 27 podcast appearance is dated July 18, four days before the District Court judges were to decide on her appointment as U.S. Attorney. Professed Hatch Act experts like the complainants shouldn’t need four months to articulate a Hatch Act allegation, if indeed there was one; the complaint clearly was intended to derail Ms. Habba’s retention by the District Court.
The next “tell” is the tortured expression of the alleged Hatch Act violation, with a focus on Ms. Habba envisioning the President’s policies as a pathway to political success, which the complaint falsely asserts was “expressly encouraging voters to elect Republicans.” Which Republicans? Which election? The gubernatorial race in November? Ms. Habba did not mention that. The midterms, twenty months away? Please. Frankly, we could use more people advocating strong policies as the route to electoral success.
Another indication that this complaint against Ms. Habba is frivolous is its hypocrisy. I confess finding this allegation to be “cute” while reading Jake Tapper’s and Alex Thompson’s Original Sin, about the elaborate cover-up of President Biden’s health executed by White House employees in a desperate attempt to preserve the president’s electoral prospects because of their belief in the need to “save democracy” from Donald Trump.
I looked, but couldn’t find, any complaints made by the DDF against Biden White House staffers for their partisan efforts on the taxpayers’ dime, including by the “Politboro” that Tapper and Thompson describe as being consumed with preserving President Biden’s candidacy until that house of cards finally fell. The DDF also held its fire when other senior Biden White House officials violated the Hatch Act, specifically, Neena Tanden fundraising on social media for Democratic candidates, and press secretary Karine Jean-Pierre talking about “mega-MAGA Republicans who don’t believe in the rule of law” from the White House podium.
Against these more serious and unambiguous violations of the Hatch Act in the prior administration, Ms. Habba’s comment opining that “we could turn New Jersey red” is weak tea. The Office of Special Counsel, which considers such complaints, should quickly dismiss it.
