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Habba, Giraud lay out arguments ahead of August 15 hearing on U.S. Attorney appointment
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automatically elevating her to acting U.S. Attorney; Habba’s Senate nomination to a full term as U.S. Attorney was also withdrawn, since pending nominees can’t be named to the office in an acting capacity.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filings: that Habba’s past nomination to be U.S. Attorney precludes her from acting service even though it had been withdrawn; that the Trump administration’s own timeline for the order of events has been shifting and confused; and that, more broadly, upholding the appointment would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.”
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