Two weeks after one New Jersey
defendant filed a
motion challenging
acting U.S. Attorney Alina Habba’s authority to prosecute him, a
second defendant has followed suit – and he’s armed with some new,
potentially compelling arguments that the first defendant
lacked.
Cesar Pina, a Franklin Lakes
real estate investor and influencer who goes by the alias “Flipping
NJ,” was indicted on July 7 on money laundering and bribery charges
in what Habba’s office called a “multi-million-dollar Ponzi-like
investment fraud scheme.” But as Pina’s lawyers argued in a motion
filed yesterday, Habba’s tenure as interim U.S. Attorney may have
already expired by the time the indictment was signed, which they
say renders the entire case invalid and warrants a dismissal of
charges.
“On the date Ms. Habba signed
Mr. Pina’s indictment as ‘United States Attorney,’ July 7, 2025,
she was acting without legal authority,” Pina’s high-powered legal
team – Gerald Krovatin, Abbe Lowell and Norman Eisen – wrote
yesterday. “She was not a Senate-confirmed U.S. Attorney, not an
Interim U.S. Attorney, not an Acting U.S. Attorney, not First
Assistant, and not even a duly-authorized Special Attorney. Because
she was acting under no legal authority in bringing this
indictment, Ms. Habba’s actions are ultra vires and the indictment
must be dismissed.”
The timing of the charges sets
Pina’s case apart from that of Julien Giraud, the other defendant
who is taking on Habba. Giraud had initially been charged by U.S.
Attorney Philip Sellinger during the Biden administration, and his
case rests on whether it is unlawful for Habba to prosecute the
case despite the unusual nature of her appointment.
The Giraud case has been
transferred out of New Jersey, presumably because of the close
connections New Jersey’s federal judges have to the dispute; the
Third Circuit Court of Appeals reassigned it to Pennsylvania judge
Matthew Brann, who will hear arguments from Giraud and the Justice
Department on Friday. It remains to be seen whether the Third
Circuit will do the same with the Pina case, which is currently
before New Jersey District Court Judge Madeleine Cox
Arleo.
As laid out by Pina’s lawyers in
a detailed timeline, the dispute over New Jersey’s U.S. Attorney’s
office began on March 3, when President Donald Trump chose a
little-known lawyer
named John Giordano as
interim U.S. Attorney, a title that comes with a term limit of 120
days. Just three weeks later, however, Trump announced that
Giordano would be shifted into an ambassadorship and that the new
interim U.S. Attorney would be
Habba, his own former
personal lawyer and a conservative firebrand.
Just because a new person was in
the role, however, did not necessarily mean that the 120-day limit
had restarted. Pina’s lawyers are now arguing (citing, among other
things, a 1986 memorandum from now-Supreme Court Justice Sam Alito)
that the 120-day limit begins the day of a vacancy and cannot be
reset, thus meaning that Habba’s tenure ended on July 1 – a week
before she signed the indictment against Pina.
Even accepting the Trump
administration’s contention that Habba’s appointment reset the
120-day clock, however, Pina’s lawyers say there are still a number
of other defects with her appointment that render her authority
illegitimate.
In late July, right as Habba’s
term was set to expire, New Jersey’s District Court judges met
and voted to
appoint First Assistant
U.S. Attorney Desiree Grace as her acting successor, which federal
law allows them to do. Attorney General Pam Bondi, however,
fired
Grace from the Justice
Department, accepted Habba’s resignation as interim U.S. Attorney,
and appointed Habba as
First Assistant on July
24, thus automatically
elevating her to acting U.S. Attorney. (Grace has since
filed an
administrative appeal challenging her firing, per
Bloomberg.)
One key unresolved question that
Pina’s lawyers home in on: the exact date of the expiration of
Habba’s tenure. The government argues that it did not expire until
July 26, 120 days from her official appointment on March 28, thus
making the July 22 vote of the federal judges moot since it
occurred before a vacancy existed. But Trump’s March 24 social
media post announcing Habba’s appointment said it would be
“effective immediately,” which would mean Habba’s term ended on
July 22, the same day as the judges’ vote.
Pina’s attorneys also argue
that, because Habba’s nomination for a full term as U.S. Attorney
had been submitted to the
Senate, she was
ineligible for appointment as acting U.S. Attorney under the
Federal Vacancies Reform Act, which specifically bars nominees from
taking on the office they’ve been nominated for in an acting
capacity. The same argument has been put forward in the Giraud
case; the government contends that, because Habba’s nomination was
withdrawn shortly before her appointment, federal law was not
violated.
“The act of withdrawing a
nomination … is not a magic pill that allows a failed nominee to
evade subsection 3345(b)(1)(A),” Pina’s lawyers wrote. “The FVRA
was enacted precisely to prevent a stalled nominee from serving as
the acting head of that same office. To greenlight the loophole the
Government proposes, the Court would need to fully ignore the
history that gave rise to the statute’s enactment.”
Pina’s motion also puts forward
a handful of new arguments that go unmentioned in the Giraud case.
For one, it argues that when Habba resigned as interim U.S.
Attorney, the authority of acting U.S. Attorney should have passed
on to former acting U.S. Attorney Vikas Khanna, who held the post
of First Assistant when the vacancy first arose in January. And it
notes that Habba never actually served in a subordinate role
despite holding the title of “First Assistant,” thus rendering the
label functionally meaningless.
The ongoing battles over the
U.S. Attorney’s office have caused chaos in the New Jersey court
system, with cases grinding to a
halt until Habba’s
authority is either affirmed or revoked. And given the momentous
nature of the debate, it’s possible the question will ultimately
end up before the Supreme Court – meaning the situation may remain
unsettled for quite some time.
The post Another N.J. defendant takes on Habba – this time,
one who was indicted by Habba herself appeared first on New
Jersey Globe.