Bulwark Takes: "Alina Habba's Appointment Ruled Unlawful"

Host: Andrew Egger (The Bulwark)
Guest: Professor Leah Litman (University of Michigan Law)
Date: December 2, 2025

Main Theme

This episode dives into the legal controversy surrounding Donald Trump's attempts to place loyalists—specifically Alina Habba and Lindsey Halligan—into key U.S. Attorney positions via novel and questionable interim appointment methods. With recent appellate decisions striking down these appointments, host Andrew Egger and constitutional law expert Leah Litman analyze what these rulings mean, their broader implications for presidential power, the chaos inside federal prosecutors’ offices, and what may come next, potentially up to the Supreme Court.

Key Discussion Points & Insights

1. Unlawful Appointments and Trump's Strategy

• Trump’s Novel Tactics: Donald Trump has pursued "wacky techniques" for getting personal loyalists into powerful prosecutor positions—even after facing Senate rejection.
  • Egger: "Trump wants her to be the U.S. attorney for New Jersey. Obviously that is a Senate confirmed position. She has run into some trouble because neither of the Democratic senators from New Jersey want to confirm her to that post." (05:06)
• Recent Court Rulings:
  • Alina Habba’s extended appointment as interim U.S. Attorney for New Jersey was ruled unlawful by the Third Circuit Court of Appeals, upholding a lower court decision.
  • Similarly, Lindsey Halligan was ousted from the Eastern District of Virginia for similar reasons.
  • Both opinions are written in a way to appeal to a potentially skeptical Supreme Court.

2. Motivations Behind These Moves

• Why These Methods?
  • Litman: "The reason why the president is trying all of these kind of squirrely methods of appointing people is he wants people to exercise power that no legitimate federal official would...There’s a reason why people who are confirmed by the Senate or career civil servants...are unwilling to bring the charges that Alina Haba has or that Lindsey Halligan has." (03:34)
• End-Run Around Institutional Norms:
  • The drive is to install figures willing to prosecute controversial or politically motivated cases that mainstream or Senate-confirmed officials won’t touch.

3. Procedural Chaos and Legal Fallout

• What Happens in the U.S. Attorney’s Office Now?
  • The offices are mired in confusion: after interim terms expire or are tossed, it’s unclear who has authority—which undermines regular prosecutorial processes.
  • Litman: "There is no normal procedure...when they have literal offices...in charge of literally prosecuting people, and you don’t running those offices like you do literally not know who’s in charge..." (07:13)
• Difference Between NJ and VA Scenarios:
  • Litman: The chaos is somewhat less in NJ, as other authorized assistant US attorneys can continue existing prosecutions, unlike in Virginia where Halligan was solo on many cases.

4. Statutory and Constitutional Arguments — and Supreme Court Prospects

• Legal Reasoning:
  • The appellate decisions rest on technical statutory interpretations, using "textualist" logic tailored for Supreme Court conservatives.
    • Litman: "It uses a method of interpretation, textualism, that I think is designed to cater to or appeal to the Republican appointees on the Supreme Court..." (03:34)
• Prospects at the Supreme Court:
  • The panel discusses whether the Supreme Court—particularly its conservative bloc—might be receptive to arguments that laws limiting presidential appointment power are themselves unconstitutional.
  • Litman: "The only justice that has really written anything that tips their hand...is Justice Thomas...maybe, laws that restrict...who the President can appoint...might be unconstitutional." (14:08)
  • But she notes longstanding precedent upholding Congressional checks, and skepticism that even this Court will rule so broadly.

5. Trump’s Self-Inflicted Personnel Problems

• Why Appoint Such Controversial Loyalists?
  • Egger and Litman argue that Trump could have chosen “more presentable” but still loyal lawyers, but his preference is for unabashed partisans.
    • Litman: "If you can get 50 votes...you can probably get all kinds of weirdos right into the U.S. attorney’s office. You just picked...a former insurance lawyer with zero prosecutorial experience...and Alina Haba, who was a TV personality, not a lawyer really." (17:47)
  • This makes it impossible for him to win the necessary Senate or even judicial acceptance.

6. What’s Next?

• Timeline for Appeals:
  • The Administration has 90 days to decide whether to seek Supreme Court review in the Habba case, potentially using emergency appeals ("shadow docket").
  • The Halligan case might proceed quickly through the Fourth Circuit before heading to the high court.
    • Litman: "These cases could get up to the Supreme Court in short order." (18:59)

Notable Quotes and Memorable Moments

• Leah Litman (03:34):
  "The reason why the president is trying all of these squirrely methods of appointing people is he wants people to exercise power that no legitimate federal official would."
• Andrew Egger (05:06):
  "What Trump initially tried to do was...appoint her in sort of an interim way with basically 120 day clock...then it was supposed to redound to...the judges in that district themselves to either keep her on or pick somebody else. And they opted to pick somebody else for pretty obvious reasons because they like all of us, sort of judged Alina Habba to be basically a political hitman."
• Leah Litman (07:13):
  "There is no normal procedure. And I think this is why, you know, it is kind of a fool's errand for courts to be applying...the so called presumption of regularity to things that the Trump administration is doing..."
• Leah Litman (14:08):
  "The only justice that has really written anything that tips their hand even in the slightest is Justice Thomas. And Justice Thomas has suggested that maybe...laws that restrict...who the President can appoint ...might be unconstitutional."
• Leah Litman (17:47):
  "You just picked again, Lindsey Halligan, a former insurance lawyer with zero prosecutorial experience. I mean, come on. And Alina Haba, you know, who was a TV personality, not a lawyer really."

Important Segment Timestamps

• [01:59] – Episode begins: Andrew Egger introduces the day's ruling and brings in Professor Leah Litman.
• [03:13] – Lipman’s first reactions: the why behind Trump’s appointments and the technical legal arguments.
• [05:06] – Egger recaps timeline of Habba’s and Halligan’s appointments and legal roadblocks.
• [07:13] – Lipman describes on-the-ground procedural chaos and why "there is no normal procedure."
• [09:47] – Discussion on differences between the New Jersey and Virginia cases.
• [12:34] – Egger asks about possible Supreme Court involvement; Litman explains possible constitutional issues and precedents.
• [14:08] – Analysis of the Supreme Court’s possible approach and specific justices’ inclinations.
• [16:36] – Egger and Litman reflect on Trump's inability/unwillingness to select “acceptable” loyalists.
• [18:45] – Looking ahead: appeals process and timelines.

Tone and Style

The conversation is fast-paced, analytical, and occasionally wry, with both host and guest often incredulous at the extremity of Trump’s choices and tactics. Professor Litman combines technical legal explanations with clear, accessible metaphors (“self-inflicted wound,” “literal offices...literally prosecuting people”), while Egger supplies context, reporting, and pressing questions about potential outcomes and institutional impacts.

Summary Takeaway

This episode provides a timely legal primer on the Trump administration's battles over personnel, focusing on how attempts to bypass established legal norms to install political loyalists have backfired spectacularly. With sharp legal and political analysis, Egger and Litman outline the technical details, institutional consequences, and the high stakes involved—pointing toward a likely Supreme Court showdown that could redefine the boundaries of presidential appointment powers.