Judge Questions DOJ Process For Naming Habba US Attorney (Correct)

A federal judge pressed the Justice Department on the process used to keep President Donald Trump’s former personal lawyer as New Jersey’s US attorney, in a challenge to her appointment that’s caused many cases in the state to stall.

Criminal defendants are arguing Alina Habba’s appointment is invalid and that prosecutors can’t bring cases at her direction.

But DOJ lawyers during a Friday hearing in Williamsport, Pa., argued the administration is using “well-established” mechanisms to give Habba temporary power over key executive functions in the New Jersey attorney’s office.

Judge Matthew Brann of the Middle District of Pennsylvania used the roughly four-hour hearing to press lawyers for DOJ and criminal defendants on their interpretations of statutes regarding the appointment of interim and acting US attorneys.

He also questioned whether Habba’s appointment in July as a “special attorney” conflicted with a 2024 court ruling declaring that Special Counsel Jack Smith was improperly appointed.

Justice Department lawyer Henry C. Whitaker argued the Smith case was responding to a “very different situation.” But counsel for defendants argued the DOJ was explicitly trying to circumvent laws on the appointment of US attorneys to keep an unqualified official in the job.

The underlying dispute stems from an effort by the Trump administration to bypass Congress and the judiciary to keep Habba in her role as the chief federal prosecutor in New Jersey.

That effort came to a head last month, when Habba’s term as interim US attorney neared its 120-day term limit and a Senate custom requiring the approval of her Democratic home-state senators thwarted her nomination from moving forward.

Federal trial judges in New Jersey, using their authority under federal vacancies law, on July 22 appointed Desiree Grace, Habba’s top deputy, as successor until a Trump-appointed official was confirmed.

But Attorney General Pam Bondi responded by firing Grace, in the Justice Department’s latest row with judges. Administration officials then deployed a series of procedural maneuvers, including having Habba temporarily resign her post.

Bondi then appointed Habba as special attorney to the attorney general and designated her as first assistant US attorney, which allowed Habba to fill the US attorney job on an acting basis under the Federal Vacancies Reform Act.

US Attorney Statutes

The case will turn on how Brann decides on key disagreements between the parties on the law surrounding US attorney appointments.

Those include whether Trump’s nomination of Habba for the permanent position bars her from serving as the acting US attorney and whether the DOJ can name successive interim US attorneys, thus avoiding situations where a district court gets the opportunity to appoint an official.

Whitaker argued that Friday’s hearing was “precipitated” by judges in New Jersey making the unusual decision to not coordinate with the executive branch and reject its favored prosecutor choice. Gerald Krovatin, counsel for a criminal defendant, fired back, calling the DOJ’s actions “offensive.”

“This was caused,” Krovatin said, “by appointing someone who has no business as US attorney.”

Brann heard the challenge after the chief judge of the Third Circuit, which includes New Jersey and Pennsylvania, said it would be in the public interest for the dispute to be transferred.

He joked at the start of the hearing that he was assigned the case due to “his sins” and predicted he’d rule on the issue by Aug. 20.

The decision is likely to be appealed regardless of who it favors, and it comes as the Justice Department continues to use procedural maneuvers to extend temporary US attorney appointments.

New Jersey Implications

The case also carries implications for law enforcement, as US attorneys wield wide discretion on who and what to prosecute. A friend-of-the-court brief submitted by the Criminal Defense Lawyers of New Jersey noted that Habba’s office is prosecuting more than 2,000 people, over 600 of whom were in custody as of Aug. 11.

A DOJ lawyer said Friday that criminal matters in New Jersey aren’t moving the way they “normally would,” with some judges declining to hold arraignments on indictments until the Habba challenge is resolved.

Julien Giraud Jr. and Julien Giraud III, who are facing drug and weapons-related charges in New Jersey, claim that Habba’s appointment is invalid and that prosecutors are not authorized to pursue cases at her direction.

Their arguments were heard alongside that of Cesar Pina, a New Jersey real estate investor charged on July 7 with a multi-million dollar fraud scheme. Pina moved to dismiss his case on the grounds that Habba’s interim term had already expired by then and that his indictment was therefore null.