Noticias

When a federal judge ruled last month that acting U.S. Attorney Alina Habba lacked authority to continue serving in her role, he erred in his interpretation of the law in multiple ways, the Department of Justice (DOJ) argues in a new appeals brief filed late last week.

The appeal, which will be heard by the the Third Circuit Court of Appeals, largely does not put forward new arguments to support Habba’s legitimacy, and instead goes into great detail to lay out how President Donald Trump had the authority to keep Habba in her role and how District Court Judge Matthew Brann’s decision “erroneously disqualified” the controversial Habba.

“It is important that a DOJ component is overseen by someone who has the support of the Executive Branch, and that a U.S. Attorney’s Office can continue to function even when there is no Senate-confirmed or interim U.S. Attorney,” states the 49-page brief, penned by DOJ official Katherine Twomey Allen. “The district court’s contrary holdings misread the [Federal Vacancies Reform Act] and would upend widespread and longstanding executive practice across the federal government. The district court’s disqualification orders should be reversed.”

Brann stayed his order immediately pending appeal, so Habba remains in office for now. And she may remain in limbo for a while to come; a briefing schedule approved by the Third Circuit will likely put off oral arguments in the case until late October or early November. It also remains unclear for now which judges on the closely divided circuit will hear the case.

The longer the appeal drags on, the more jammed and delayed court proceedings in New Jersey are likely to become, as the DOJ acknowledges in its brief.

“The district court stayed the effects of its orders pending appeal … but district courts in New Jersey have adjourned numerous criminal trials and sentencing hearings, and some courts are refusing to proceed with guilty plea hearings, which has created a backlog of stalled criminal cases in the District of New Jersey,” it states.

Habba was first appointed as interim U.S. Attorney in late March to replace interim U.S. Attorney John Giordano, who had served in the role for just over three weeks. The Trump administration had originally intended to put State Sen. Doug Steinhardt (R-Lopatcong) in the role, but Steinhardt turned it down; the DOJ’s new brief notes that “on January 27, 2025, then-Acting Attorney General James McHenry purported to appoint a third person [Steinhardt] as interim U.S. Attorney, but that person declined the appointment a few days later.”

As interim U.S. Attorney, Habba was constrained by a 120-day limit in office, and when her term expired in July, New Jersey’s District Court judges met and appointed First Assistant U.S. Attorney Desiree Grace to succeed her, as they were authorized by law to do. Then, in a dizzying turn of events, the Trump administration fired Grace, withdrew Habba’s Senate nomination, and appointed Habba to Grace’s old position as First Assistant U.S. Attorney, thus automatically elevating her to the office of acting U.S. Attorney.

Two New Jersey defendants facing prosecution by Habba challenged the legality of those maneuvers, and in an August 21 ruling, Brann found that Habba was indeed serving improperly and ordered that she be “disqualified from participating in any ongoing cases,” though the stay of his own ruling prevented that from immediately taking place.

Brann made a number of determinations in his ruling: that the 120-day clock for interim U.S. Attorney appointments began when Giordano was appointed, not when Habba replaced him, moving the end of her term up to July 1; that she was ineligible to serve as acting U.S. Attorney because she had not been First Assistant U.S. Attorney when the job first became vacant; and that Attorney General Pam Bondi’s attempted workaround, appointing Habba as a “Special Attorney” overseeing New Jersey, was invalid.

He did not come to a decision on one other key argument: whether Habba’s prior Senate nomination to a full term as U.S. Attorney disqualified her from serving as acting U.S. Attorney, since her nomination was withdrawn right before her appointment.

In its appeals brief, the DOJ spells out in precise detail the mistakes it believes Brann made in his ruling, and how the text of the law instead supports the Trump administration’s position. Bondi does have the ability to name special attorneys with authorities that match those of a U.S. Attorney, the brief contends, and Habba is eligible to serve as acting U.S. Attorney even though she was only named First Assistant U.S. Attorney long after the turmoil at the office began.

As for Brann’s conclusion that Habba’s term ended 120 days after Giordano took office – thus effectively preventing the Trump administration from naming a series of successive interim U.S. Attorneys every 119 days – the brief pushes back on his finding but claims it’s not relevant to the wider appeal.

“The district court wrongly concluded that Ms. Habba’s interim appointment expired on July 1, 2025, and that Ms. Grace therefore became the interim U.S. Attorney pursuant to the district court appointment on July 22, 2025,” the brief states. “But that timing dispute is not relevant to this appeal of the district court’s orders prospectively disqualifying Ms. Habba: the defendants have not disputed, and the district court accepted, that the President validly removed Ms. Grace as interim U.S. Attorney on July 26, 2025.”

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A Roselle council candidate and the Union County Board of Elections filed their opposition to a potential primary election redo in an ongoing case stemming from a tight primary 

The close primary in Roselle has led to months of legal drama. Denise Wilkerson, the incumbent, defeated a primary challenge from Cynthia Johnson by three votes. Superior Court Judge John Deitch denied Johnson’s request for a recount earlier this summer, but an appellate court overruled him. The recount brought Wilkerson’s margin down to two votes, but kept her in the lead.

Johnson continued the legal challenges. Last week, her attorneys presented three voters whom Deitch ruled were illegally disenfranchised. With those findings, Deitch nullified the election and ordered a redo of the primary. Late last week, Deitch determined he didn’t have the authority to order a new election so late in the process and changed his mind. Instead, he told Roselle Democrats they had until this past Sunday to select a new candidate, which ended up being Johnson.

Wilkerson filed her appeal brief on Monday, arguing Deitch improperly applied a 1987 New Jersey Supreme Court decision — Fields v. Hoffman — to his decision to allow the Roselle Democratic Committee to pick a new nominee. Wilkerson’s brief states Fields applied to a dispute over write-in votes, and that the case is not “remotely applicable.” Wilkerson asked for a new primary, saying the Roselle Democratic Committee shouldn’t take that process from the voters.

Johnson’s brief disagrees, arguing that when the primary produces no nominee and leads to a vacancy this late in the process, it’s then up to local parties to pick the nominee.

“Where that nomination process is insufficient or inoperative, then the Legislature has provided for an alternative method for the political party to make a nomination by delegating the candidate selection to the statutorily created, municipal county committee, consisting of elected party representatives,” Johnson’s brief states.

Johnson’s brief argues a redo of the primary would be “unprecedented and not supported by any statutory remedy.”

Wilkerson argues the vacancy was only established in the first place because of Deitch’s handling of the case: “The trial court’s belated and erroneous decision 55 days prior to the election necessarily cannot create a vacancy.”

The Union County Board of Elections said Wilkerson should not be granted emergency relief because she lacks a strong challenge to the handling of the case.

“Wilkerson is not entitled to emergent relief because she has not established that she is likely to succeed on the merits of her challenge,” the board of elections’ brief states.

Union County Clerk Joanne Rajoppi chose not to file an opinion on the matter.

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Park Ridge school board member Robert Fisher is appealing a judge’s ruling from last week that allowed a recall effort against him to go forward despite the lack of notarized petition signatures.

An effort to recall the 20-year-old Fisher garnered 2,141 signatures, clearing the 1,864 needed to put the measure on the ballot, but the signatures were never notarized. Bergen County Clerk John Hogan tossed out the recall effort, saying the lack of a notary meant the signatures were invalid. Last week, Superior Court Judge Peter Geiger overruled Hogan’s decision, saying petitions are not required to be notarized.

Appellate Judge Stanley Bergman approved Fisher’s request for emergent appeal on Tuesday morning. Fisher has until 10 a.m. tomorrow to file a motion; his opponents have until Wednesday at 10 a.m. to file their response.

Fisher, who attends Vanderbilt University, has faced allegations that he’s missed 30% of meetings this year, isn’t available to attend community events, and doesn’t serve on any school board committee. Fisher has said he’s spent thousands of dollars commuting back to New Jersey due to his public duties.

His opponents accuse him of residency issues as well: His family moved out of Park Ridge after his high school graduation, and he rents a basement apartment in town for $10 per month.

Fisher has said the recall effort “reeked of lies and age discrimination.”

The appellate judge granted a temporary stay of Geiger’s order from last week.

With mail-in ballots set to go out later this week, an extended appeal could delay the printing or distribution of ballots.

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Last month, New Jersey Rep. LaMonica McIver (D-Newark), under indictment for assault, asked a federal judge to throw out the charges against her for containing a number of supposedly fatal defects. In an 80-page brief filed yesterday, the Department of Justice (DOJ) argues that no such dismissal is warranted.

The brief also largely corroborates McIver’s own account of what happened on May 9 at the Delaney Hall immigrant detention center. McIver and two of her congressional colleagues were allowed into the facility for an oversight visit; Newark Mayor Ras Baraka was also let inside the facility’s gates, then told to leave, which he did after a tense interaction with immigration officials who threatened to arrest him; and finally, even after exiting the gates, Baraka was arrested anyways, prompting the scuffle that forms the basis of the charges against McIver.

Another detail confirmed by the brief: Department of Homeland Security (DHS) agents arrested Baraka after “consulting with the Deputy Attorney General,” Todd Blanche, the DOJ’s second-in-command. 

In their motions last month, McIver’s defense attorneys put forward two key arguments for why the charges should be dismissed: the prosecution against her is vindictive and politically motivated by her criticism of President Donald Trump’s policies, and the charges center around official legislative business that’s protected by the Constitution’s Speech or Debate clause.

Writing for the DOJ, however, Assistant U.S. Attorneys Mark McCarren and Benjamin Bleiberg work to dismantle those arguments, saying that they are an attempt to obfuscate what is otherwise a straightforward case of assault. A trial in the matter is scheduled for November 10, but the decision about whether the case will continue ultimately rests with U.S. District Judge Jamel Semper.

McIver’s claims of selective prosecution, the DOJ argues, fall apart because she provides no specific evidence that she was treated any differently from another defendant in her situation, or that the prosecution – led by controversial acting U.S. Attorney Alina Habba, whose authority as New Jersey’s top prosecutor remains in limbo – harbors any specific animus against her.

“[McIver’s allegation of discriminatory intent] relies primarily upon a mistaken understanding of DOJ policy, as well as out-of-context statements concerning the Administration’s well-publicized law enforcement policies and priorities,” the brief states. “In the process, McIver omits mention of evidence contradicting her claims from the very sources upon which she relies for her supposed evidence of ‘discriminatory intent.’”

McIver’s motion also rested heavily on a comparison to the rioters who stormed the U.S. Capitol on January 6, 2021, who were subject to blanket pardons and dismissals of charges when Trump retook office this year. If their conduct, which McIver’s attorneys said was “far more egregious” than anything McIver did, has been treated so gently by Trump’s DOJ, then the vigorous prosecution of McIver should be seen as politically motivated.

The DOJ, however, calls that comparison “apples to oranges,” saying the treatment of one cannot be used as a defense of the other. Moreover, the DOJ contends that Trump’s sweeping pardons covered even January 6 defendants who had not yet been prosecuted, and a presidential pardon is “absolute.”

“McIver’s claim faces a threshold, insurmountable defect: the January 6 Defendants cannot be considered similarly situated because they all were pardoned,” the brief states. “As a consequence, their ongoing prosecutions had to be dismissed without regard to the exercise of prosecutorial discretion, and they could not be prosecuted for January 6th related crimes thereafter.”

Another argument McIver put forward, that the DOJ failed to consult with its Public Integrity Section (PIN), is similarly moot, the brief states, because the DOJ had already suspended its own policy requiring consultation with PIN before bringing charges against members of Congress. 

Citing a Reuters article, the brief places the suspension of the policy around May 10 – right as DHS began publicly threatening action against McIver and the two other Democratic members of Congress present for the visit and ensuing fracas. Reps. Rob Menendez (D-Jersey City) and Bonnie Watson Coleman (D-Ewing), referred to as “Betsy” at one point in the DOJ’s brief, ultimately were not charged.

As for McIver’s claims that her conduct is protected by the Speech or Debate Clause, the DOJ acknowledges that the Delaney Hall oversight visit falls under the category of McIver’s official actions as a congresswoman, but disputes the idea that an altercation with law enforcement officials is subject to the same protections.

“Imagine, for example, that McIver, while touring Delaney Hall, smuggled in contraband that she surreptitiously slipped to a detainee,” the brief states. “Such conduct would violate a number of federal and state statutes, and it would certainly have no legitimate legislative purpose. But under McIver’s theory of immunity, she would be immune from prosecution because it occurred during an otherwise legitimate legislative act.”

“It defies logic to believe that the Founders envisioned the immunity conferred by the Speech or Debate Clause sweeps so broadly,” it continues.

According to the brief, McIver attempted to impede Baraka’s arrest twice: first when Baraka was confronted while inside the gates, and again during Baraka’s actual arrest outside the gates. The latter incident, when McIver placed her arms around Baraka to prevent the arrest and “barreled after the Mayor and the [Special Agent in Charge], making forcible contact with the SAC and one other ICE officer,” provides the basis for the charges against her.

The trespassing charges against Baraka were later dropped, and earned the U.S. Attorney’s office a scolding from a federal magistrate judge.

The brief’s summary of events appears to concede a key point that McIver has suggested: none of the federal agents involved in the scuffle actually experienced any injuries as a result. The DOJ argues, however, that “the Government does not need to show harm or injury to satisfy the elements of the offenses charged.”

Seemingly contradicted by the brief, meanwhile, are claims from DHS officials in the wake of the incident that McIver and her colleagues had “stormed” and “illegally [broken] into” Delaney Hall, rather than simply walking in for an oversight visit. The brief’s timeline of events states that McIver “entered through the front gate into the secured area of the facility,” and makes no mention of any forcible entry into the facility.

Another motion filed by McIver last month demanded that the Trump administration cease making “extrajudicial statements” about her and withdraw any such prior statements. The DOJ says in its brief that it has asked DHS to remove five of its posts that McIver found objectionable, but all five of the posts remain public on the DHS’s website or social media as of this morning.

Finally, McIver and the DOJ remain at odds on discovery. McIver’s flurry of motions last month insisted that the DOJ has not handed over a raft of important evidence; the DOJ’s brief says it is willing to grant McIver’s request for internal video of McIver’s oversight tour, but called other requests “breathtaking in [their] scope.”

The DOJ also contested McIver’s claim that some relevant body camera footage has not been released; while footage from 11 agents’ body cameras have been provided, the DOJ says other agents present for the incident were not wearing cameras at the time, including the two agents identified as “Victim-1” and “Victim-2.”

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