Noticias

In the high-stakes battle over whether or not acting U.S. Attorney for the District of New Jersey Alina Habba was properly appointed to her role, which is set to be heard by a federal judge in Pennsylvania tomorrow, one key question revolves around the extent to which federal law gives presidents unfettered power to choose U.S. Attorneys. Can President Donald Trump essentially name whoever he wants? Or do Congress or the judiciary need to have a say?

Some of the members of Congress who were there for the original drafting of the relevant federal laws are saying that it’s very much the latter: that Congress’s intent has always been specifically to prevent against the type of unilateral maneuvers that Trump has executed on Habba’s behalf.

In two different amicus briefs submitted to the court yesterday, a plethora of current and former members of Congress of both parties, among them New Jersey Rep. Frank Pallone (D-Long Branch), insist that the Trump administration’s actions violate their own legislative intent as well as broader constitutional protections of the separation of powers. (The briefs have not yet been officially accepted by the court.)

“The Administration’s recent actions to extend Ms. Habba’s tenure as U.S. Attorney beyond the statutory limit, without Senate confirmation, implicates the very separation of powers amici sought to address in 2007,” one brief states; the same line is replicated with small differences in the second brief.

When Habba was named interim U.S. Attorney in March of this year, her appointment came with a 120-day limit under federal law; the limit had been briefly revoked during President George W. Bush’s administration, but was put back in place by the Preserving United States Attorney Independence Act of 2007, which passed Congress overwhelmingly. If no Senate-confirmed U.S. Attorney is in place at the end of those 120 days, the law states, federal District Court judges in the relevant district have the authority to name a new U.S. Attorney themselves.

The Trump administration, however, attempted to sidestep those requirements using a complicated series of maneuvers in late July, when Habba’s nomination was set to expire. After New Jersey’s judges voted to appoint First Assistant U.S. Attorney Desiree Grace to succeed Habba, Attorney General Pam Bondi fired Grace, accepted Habba’s resignation as interim U.S. Attorney, and named Habba as the new First Assistant, thus elevating her to acting U.S. Attorney by default.

Trump and Habba have argued in court filings that they followed the letter of the law at every step of the process, and that Habba is the duly appointed U.S. Attorney. But one of yesterday’s amicus briefs, submitted by six longtime members of the House who “participated in” the passage of the 2007 law, argues that the intent of Congress had always been to place limits on presidential authority when it comes to U.S. Attorneys.

“Amici have a strong interest in ensuring that the Court interprets the statutory framework governing the appointment of U.S. Attorneys in a manner faithful to this constitutional design and the original intent of amici in passing these critical appointment provisions,” the brief states.

Five of the amici are Democrats who remain in Congress today – Pallone and Reps. Nydia Velázquez (D-New York), Bennie Thompson (D-Mississippi), Lloyd Doggett (D-Texas), and Stephen Lynch (D-Massachusetts) – while the sixth is Wayne Gilchrest, a former Maryland congressman who served in Congress as a Republican but became a Democrat in 2019.

The other brief is substantially shorter and replicates many of the same arguments as its counterpart, but its list of amici is noteworthy nonetheless. It’s signed by nine former Republican members of the House and Senate – “members of the same party as the current United States Presidential Administration,” it notes – some of whom (like former Virginia Rep. Barbara Comstock) left office as recently as 2019 and others of whom (like former New York Rep. John LeBoutillier) haven’t held public office for decades.

Both briefs state that the members take no position with respect to the underlying challenge to Habba’s authority that will come up in court tomorrow: whether or not she can prosecute a New Jersey defendant named Julien Giraud Jr. on drug and weapons charges given the potentially illegitimate nature of her appointment.

Pennsylvania Judge Matthew Brann, to whom the case was transferred after the Third Circuit determined that it should not remain under the purview of a New Jersey judge, will preside over a hearing on the matter tomorrow morning in Williamsport. He ordered yesterday that a second, similar challenge to Habba’s authority regarding a real estate investor named Cesar Pina will also be heard in court tomorrow.

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