Could Nevada’s top federal prosecutor face challenges after NJ ruling?

Some legal experts think acting Nevada U.S. attorney Sigal Chattah could face challenges after a Thursday ruling that her New Jersey counterpart was serving unlawfully.

She and Alina Habba both went from interim U.S. attorney to acting U.S. attorney and have not been confirmed by the Senate.

“I think there are plausible arguments that she’s not serving legally,” said Nina Mendelson, a professor of law at the University of Michigan, referring to Chattah in a phone interview before the decision.

Chief U.S. District Judge Matthew Brann found Habba’s appointment as acting U.S. attorney was unlawful and that she had acted “without lawful authority” since July 1, the date he found that her interim appointment had ended.

The ruling about Habba is on pause pending an appeal and Chattah said she is unconcerned.

Though Chattah considers Habba a friend and said the ruling “makes me sad,” she thinks she and Habba are not in a similar position.

New Jersey judges had replaced Habba with another prosecutor, which Chattah said was “a massive difference.” Habba was also nominated by President Donald Trump after being named U.S. attorney and she wasn’t, Chattah said.

“You have to compare apples with apples,” said Chattah.

But the mechanism by which the two prosecutors became acting U.S. attorney was similar.

After the substitute attorney was appointed, the Trump administration “conceived a multi-step maneuver to keep (Habba) in the United States Attorney role,” wrote Brann, who serves in Pennsylvania.

Those steps included the withdrawal of Habba’s nomination to be U.S. attorney, her resignation as interim U.S. attorney, her appointment to the first assistant U.S. attorney position and her elevation to acting U.S. attorney, according to the ruling.

Chattah has said she was appointed acting U.S. attorney a day before her interim appointment would have expired. The appointment followed some of the same steps: she resigned as interim, was appointed first assistant and then became the acting U.S. attorney, she said.

Possibility of challenges

Mendelson, who studies administrative law and statutory interpretation, didn’t see the distinction of the nomination issue.

“It should make no difference that Habba was, for a brief time, the nominee, while Chattah has not been nominated at all,” she said in an email Friday. “At the time of the challenge to Habba’s appointment, her nomination had been withdrawn. It’s fair to assume that the Trump Administration does not believe either would be likely to be Senate-confirmed, and thus also fair to assume that placing them in acting positions, while not nominating anyone to serve, is a way to bypass the Senate confirmation process.”

She added: “Attorneys could raise many of the same challenges to Chattah’s service as were raised to Habba’s.”

Frank Coumou, a former federal and state prosecutor who practices in Las Vegas, said it’s “highly likely” Chattah will be challenged.

The ruling “doesn’t bode well to her current position,” said Las Vegas defense attorney Robert Draskovich of Chattah.

He also said he could foresee attorneys challenging Chattah given the New Jersey decision, but he doesn’t plan to do so.

“I think she’s a good pick,” he said. “I’ve known her for a substantial amount of time and she’s attentive, she’s conscientious. I think the office is running well with her as the temporary, the interim U.S. attorney.”

‘Unfitness to serve’

Others have been less effusive.

A Las Vegas attorney, Chattah has also served as RNC national committeewoman. Like Habba, who served as Trump’s personal defense lawyer, Chattah has also been a controversial figure.

Nevada Democratic Sens. Jacky Rosen and Catherine Cortez Masto both expressed dismay in late July about the extension of Chattah’s term in office.

“This is an outrageous attempt by the Trump Administration to try to install extremist Sigal Chattah as Acting U.S. Attorney for Nevada and keep her in that role indefinitely,” Rosen said at the time. “Trump knows Chattah would be soundly rejected by both sides of the aisle if she had to be confirmed by the U.S. Senate, which is why he’s relying on an unconstitutional maneuver to illegally extend her temporary appointment that was set to expire today.”

Chattah said she was made acting U.S. attorney “because it became clear that the blue slips weren’t going to be given by the senators.”

Under the blue-slip process, home state senators must sign off on a nominee.

Chattah and Clark County District Attorney Steve Wolfson have recently fought publicly over a child sex sting case involving an Israeli cybersecurity official, Tom Artiom Alexandrovich.

She has accused Wolfson of failing to force the defendant to surrender his passport, letting him flee the country.

Wolfson has said Alexandrovich’s bail was “standard,” meaning it was pre-set by the court and did not require release conditions. He has also said Chattah has shown an “unfitness to serve.”

Before she became a federal prosecutor, Chattah also said in a 2021 text message exchange that Aaron Ford, who is Black and now serves as Nevada’s attorney general, “should be hanging from a (expletive) crane.”

Chattah lost to Ford in the 2022 Nevada attorney general’s race and previously said the expression was “tongue in cheek” and did not have “a racial context.”

‘This decision could impact Nevada’

Greg Brower, a former Nevada U.S. attorney, thinks a challenge would have to be initiated by a defendant claiming their indictment with Chattah’s name on it is invalid because she is not the legal U.S. attorney.

Though the New Jersey decision is not binding on Nevada and will be appealed, he said, “It’s possible this decision could impact Nevada.”

There are also questions about what would happen to decisions made under an unlawfully appointed U.S. attorney, said Brower: Would those cases get dismissed? Or could someone else sign off on the decisions?

Brann said in the Thursday decision that Habba had acted “without lawful authority since July 1” and that “her actions since that point may be declared void, including her approval of (an indictment), although that fact does not require its dismissal.”

He also said she “must be disqualified from participating in any ongoing cases.”

Mendelson noted that the Habba decision only applied to New Jersey and would not take effect immediately.

“But if the court’s reasoning were followed by other courts, it would place significant limits on the President’s ability to bypass the Senate by placing someone unconfirmed in a U.S. Attorney post for a long period of time,” she said in an email.

Contact Noble Brigham at nbrigham@reviewjournal.com. Follow @BrighamNoble on X. The Associated Press contributed to this report.