A New Jersey defendant’s
challenge to acting U.S. Attorney Alina Habba’s authority
will go before Pennsylvania District Court Judge Matthew Brann this
Friday, and both sides have now submitted their final written
arguments for why Habba should or shouldn’t be prevented from
prosecuting cases in her jurisdiction.
According to the lawyer
representing Julien Giraud Jr., who is under indictment in New
Jersey on drug and weapons charges, the method that President
Donald Trump used to keep Habba in her job beyond the expiration of
her 120-day interim appointment in late July was unlawful in a
number of ways, and warrants prohibiting Habba or her office from
prosecuting Giraud.
Right as Habba’s appointment was
expiring (the precise date of the expiration is up for debate), New
Jersey’s federal judges appointed First Assistant U.S. Attorney
Desiree Grace to succeed
her, as they are
empowered to do by law. The Trump administration then
fired
Grace and appointed
Habba in her place as
First Assistant, thus automatically elevating her to acting U.S.
Attorney; Habba’s Senate nomination to a full term as U.S. Attorney
was also withdrawn, since pending nominees can’t be named to the
office in an acting capacity.
Last week’s supplemental brief
from Thomas Mirigliano, Giraud’s attorney, lays out many of the
same arguments that had been put forward in prior filings: that
Habba’s past nomination to be U.S. Attorney precludes her from
acting service even though it had been withdrawn; that the Trump
administration’s own timeline for the order of events has been
shifting and confused; and that, more broadly, upholding the
appointment would effectively give presidents unlimited authority
to choose U.S. Attorneys without consultation from the Senate or
the judiciary.
“If allowed to stand, this
workaround would enable the Attorney General and President to cycle
appointees indefinitely, bypassing both the Senate’s
advice-and-consent role and the statutorily mandated judicial check
that Congress imposed,” Mirigliano wrote.
In a response brief filed
yesterday, Assistant U.S. Attorney Mark Coyne, writing on behalf of
the Justice Department, similarly reiterated many of his prior
arguments: that nothing in federal statute prevents the Trump
administration from taking exactly the course of action it did in
the order that it did so, and that the President and Attorney
General have wide-ranging powers to appoint acting U.S. Attorneys
as they see fit.
Coyne’s brief also detailed an
alternate theory for why Habba should be allowed to prosecute
Giraud; her appointment as a “Special Attorney,” he wrote, gives
her the ability to continue performing her duties in New Jersey
regardless of the debate over her other titles. That special
attorney designation, made by Attorney General Pam Bondi at the
same time as Habba was named acting U.S. Attorney, has also been
contested by Giraud.
Giraud’s challenge has
caused major
disruptions to New
Jersey court proceedings while judges and lawyers wait to see
whether Habba’s authority is affirmed – and he isn’t the only
defendant to contest her appointment. Earlier this week,
high-powered lawyers representing a real estate investor named
Cesar Pina submitted their own
motion arguing that
Habba’s authority is illegitimate; unlike Giraud, Pina was indicted
by Habba herself, after her term may have expired under one
interpretation of federal law.
Like the Giraud case, the Pina
case was originally being overseen by a New Jersey judge, but it
was transferred yesterday to Brann’s jurisdiction given the
similarities between the two. It remains to be seen how the
transfer might affect the timeline for both cases.
Brann, whose duty station is in
Williamsport, Pennsylvania, cuts an interesting figure: he was a
local Republican Party official for years, but he was appointed to
the federal bench by President Barack Obama, and perhaps his
best-known
ruling was an
evisceration of Trump’s attempt to overturn the 2020 election in
Pennsylvania.
Much of the debate around
Habba’s appointment has been focused on high-minded questions of
federal statutes and the separation of powers, but it may
ultimately come down to more prosaic questions: do Habba and her
office have the authority to prosecute Julien Giraud Jr.? In its
brief yesterday, the Justice Department argued that the answer is
unequivocally yes, given Habba’s lack of any obvious connection to,
or bias towards, Giraud (he was indicted under Philip Sellinger,
Habba’s predecessor under the Biden administration).
“Ms. Habba has no conflict of
interest in any event that would preclude her from continuing to
supervise this case. Nor is there any government conduct in this
case that denies ‘fundamental fairness’ and is ‘shocking to the
universal sense of justice,’” Coyne wrote. “So the Due Process
Clause provides no support for recusing Ms. Habba and everyone she
supervises because of her appointment.”
Mirigliano, however, argued that
allowing Habba to prosecute any case given her contested authority would cast a
shadow over the proper execution of justice in New
Jersey.
“Given the United States
Attorney’s critical role in administering and overseeing all
criminal and civil matters involving the United States in this
District, the legality of Ms. Habba’s appointment is not an
abstract or technical issue,” he wrote. “It has direct, ongoing
implications for the integrity of every prosecution in the District
of New Jersey, including this one. The potential consequences cast
uncertainty over the entire system, undermine public confidence in
the administration of justice and demand prompt, decisive judicial
intervention.”
Giraud supplemental brief Habba supplemental brief
The post Habba, Giraud lay out arguments ahead of August 15
hearing on U.S. Attorney appointment appeared first on New
Jersey Globe.
