Barbara McQuade: The White House lost a rare game of rock, paper, scissors

Paper just beat rock.

Earlier this week, the U.S. Court of Appeals for the Third Circuit affirmed a lower court decision that found the appointment of Alina Habba as the U.S. attorney for New Jersey invalid. The decision was a victory for our constitutional separation of powers.

After failing to get Habba installed through the normal process, the Trump administration used a series of maneuvers to keep her in the position, but the appellate court would have none of it.

The framers of our Constitution, fresh from a revolution against Britain to break free of a monarchy, were wary of the potential for abuse of power in the hands of a single person. As a result, they created a system of government that deliberately divided power among three coequal branches. I often explain to my law students that our constitutional separation-of-powers structure is like a big game of Rock, Scissors, Paper – the executive, legislative and judicial branches each possess the power to check the others. Even the mighty Rock can be covered by Paper.

When it comes to appointing U.S. attorneys, all three branches play a role. Under the Constitution, the president may nominate his preferred candidate, but only subject to Senate confirmation. That check provides an incentive for the president to nominate candidates with the skills, experience and independence required for the job. When there is a vacancy – such as after an election, resignation or death – various statutes provide mechanisms to fill the role on a short-term basis. But an interim appointment lasts only a few months before it expires, leaving it to the district court judges to select a U.S. attorney for their judicial district until the Senate confirms someone for the permanent job. As Judge D. Michael Fisher wrote in Monday’s opinion, “Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office.”

Habba hardly met this standard. A former defense attorney for President Donald Trump, Habba had never served as a prosecutor at any level. She was appointed to the interim role in March, and Trump later nominated her to the permanent position. However, the Senate never acted on the nomination. When Habba’s 120-day statutory time limit as interim was up, the U.S. District Court judges in New Jersey issued an order naming Desiree Grace, an experienced prosecutor then serving as Habba’s first assistant, as the new interim U.S. attorney.

Here’s where it gets weird. Rather than accept the district court judges’ decision, Attorney General Pam Bondi fired Grace, Trump withdrew Habba’s nomination, Habba resigned as interim U.S. attorney, and Bondi then appointed Habba “special attorney general” and authorized her to conduct “any kind of legal proceedings … which United States Attorneys are authorized to conduct.” In other words, if Habba couldn’t be U.S. attorney in New Jersey under relevant constitutional and statutory provisions, Bondi would craft a way to give her the job anyway.

That’s when three defendants charged under Habba’s watch filed motions to dismiss their indictments, arguing that Habba should be disqualified from serving in a role for which her appointment was not legally proper. The court declined to dismiss the cases against the defendants, but agreed that Habba’s appointment was invalid, disqualifying her from prosecuting cases. Under the government’s use of the special attorney general designation, the court wrote, Habba would be able to “avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely. This view is so broad that it bypasses the constitutional … process entirely. It also essentially eliminates the requirements” of the relevant federal statutes. The court refused to permit this end-run around the law.

The appellate court’s ruling followed decisions striking down appointments of U.S. attorneys in the Eastern District of Virginia and other districts where the Trump administration had sought to circumvent the Senate confirmation process and the statutory scheme for interim appointees. However, this was the first time an appellate court has weighed in, marking a significant victory for our system of checks and balances.

Throughout Trump’s second term, he has seemed frustrated with that structure, seeking to assert maximal executive power to impose tariffs, fire federal workers, and eliminate agencies created by Congress. As Judge Fisher wrote, “It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place.” What an enormous understatement.

At times, it seems that the Trump administration is breaking our democracy. But this appellate court decision shows how our constitutional separation of powers still retains some checks on his efforts to maximize executive power. Chalk up a win for Paper.

Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.”