A federal judge said he hopes to rule by Wednesday whether Alina Habba, New Jersey’s top federal prosecutor, is in the role legally.
A pair of defendants has challenged Habba’s legitimacy, arguing the Trump administration unlawfully maneuvered to keep her in the role after the expiration of her 120-day term as interim U.S. attorney. Pennsylvania District Court Judge Matthew Brann heard arguments in a Friday hearing in Williamsport, Pennsylvania, and said he expects his decision to be appealed regardless of who he rules for, according to a person at the hearing.
President Donald Trump first appointed Habba, his former personal attorney, to the role of interim U.S. attorney in March. As Habba’s 120-day term was expiring, New Jersey’s federal judges appointed First Assistant U.S. Attorney Desiree Grace, Habba’s deputy, to succeed her. The Trump administration fired Grace and appointed Habba as first assistant, which automatically elevated Habba 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 Habba’s Senate nomination to a full term as U.S. Attorney was also withdrawn, since pending nominees can’t be named to the office in an acting capacity.
The power struggle has sparked legal challenges from Julien Giraud Jr., who faces drug and weapons charges, and Cesar Pina, who Habba indicted on money laundering and bribery charges.
Henry C. Whitaker, a Justice Department attorney, answered most of the judge’s questions for the Trump administration during the hearing, according to Law360. Thomas Mirigliano represented Giraud during the hearing, while Gerald Krovatin represented Pina.
Brann, a Republican appointed in 2012 by President Barack Obama, at one point suggested the Trump administration concocted a game of “musical chairs” meant to “shoehorn” Habba into the role, according to Law360.
Mirigliano has argued that Habba’s previous nomination to the role precludes her from being able to serve on an acting basis. He wrote that allowing the appointment to stand would allow presidents to bypass the Senate’s advice-and-consent role in approving federal prosecutors.
Assistant U.S. Attorney Mark Coyne, writing on behalf of the Justice Department, has argued that no federal statutes bar the Trump administration from the moves it took, and that the president and attorney general have wide-ranging authority to appoint U.S. Attorneys as they see fit.
In a short filing, Brann wrote that supplemental briefs in the case should be filed by Monday evening and that he expects to file an opinion and order by the close of business on Wednesday. An appeal of his decision would go to the Third Circuit Court of Appeals.
Habba, a Trump loyalist, has spurred controversy during her time in the job. Her office charged Newark Mayor Ras Baraka with trespassing at a migrant detention center, charges that were quickly dropped, and charged Rep. LaMonica McIver (D-Newark) with assault stemming from a scuffle that occurred during Baraka’s arrest.
Several current and former members of Congress submitted amicus briefs to the court, arguing the Trump administration’s actions violate their own legislative intent as well as broader constitutional protections of the separation of powers.
Senators Cory Booker and Andy Kim, both Democrats who have criticized Habba’s appointment, released a joint statement condemning the Trump administration’s maneuvers and calling on the administration to rehire Grace.
“Today’s hearing made clear that Trump is set on defying the lawful nomination process to reward his personal lawyer, Alina Habba, with the critical role of New Jersey U.S. Attorney,” they said. “This thwarts our prosecutors’ ability to tackle crime in every federal case across the state, putting public safety at risk. We are hopeful that the court will reject the Administration’s attempt to undermine the lawful nomination process, and we urge the Administration to restore Desiree Grace as interim U.S. Attorney while it works to identify and nominate a permanent, qualified individual who will put the interests of the people of New Jersey above all else.”
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