Washington — President Trump’s attempt to keep Alina Habba, his former personal lawyer, as New Jersey’s top federal prosecutor has prompted a legal challenge, as a man facing drug and gun charges has alleged that she holds the office unlawfully.
A lawyer for the man, Julien Giraud Jr., asked a federal judge Sunday to toss the indictment or bar Habba or any assistants acting under her authority from exercising prosecutorial powers in the case. He argues that Habba’s appointment Thursday to serve as the acting U.S. attorney in New Jersey violates the Federal Vacancies Reform Act, and said that a district court’s decision appointing her then-deputy, Desiree Leigh Grace, to temporarily fill the role as the state’s top prosecutor is legally controlling.
Giraud is “facing an imminent criminal trial proceeding under questionable legal authority,” under Habba, his attorney Thomas Mirigliano wrote in the motion. Mirigliano argued that Habba’s reappointment after her nomination to become New Jersey’s U.S. attorney is also unconstitutional. Politico first reported the request stemming from Habba’s position.
“By circumventing the constitutionally mandated appointment procedures, and encroaching upon judicial powers explicitly granted by statute, the executive branch has exceeded its lawful authority,” he wrote, adding that allowing the prosecution of his client to proceed under the current landscape “would endorse an unconstitutional executive usurpation of judicial authority.”
The filing from Giraud is the latest twist in Habba’s tenure as U.S. attorney for New Jersey, which came to a head last week as she neared the end of her limited term serving temporarily in the role.
Federal law restricted Habba’s time in the post to 120 days, unless the federal district court in the state extended her tenure or she won Senate confirmation. But New Jersey’s two senators, Democrats Cory Booker and Andy Kim, opposed her nomination, making it highly unlikely it would advance through the upper chamber.
Last week, judges on the district court in New Jersey invoked a rarely used authority when they declined to keep Habba in her role of interim U.S. attorney as her 120-day term was set to expire. In her place, the judges selected the No. 2 in the New Jersey U.S. Attorney’s Office, Desiree Leigh Grace, to serve as U.S. attorney for the state until another candidate for the job was nominated by Mr. Trump and confirmed by the Senate.
But after the district court’s decision, Attorney General Pam Bondi fired Grace, a career prosecutor in the office. Grace said she intended to still serve in the role, sparking confusion over who was leading the U.S. Attorney’s Office in the Garden State.
The White House then pulled Habba’s nomination to serve as the top prosecutor, a Justice Department official said, as part of a multi-part scheme to keep her temporarily in charge of the office. Following the withdrawal and firing, Habba was appointed first assistant U.S. attorney, Grace’s job before her removal, which cleared the way for her to temporarily fill the spot of U.S. attorney in New Jersey under the Federal Vacancies Reform Act.
The vacancies law limits Habba’s time in the position to 210 days from when the vacancy occurred.
Because New Jersey federal judges have a conflict of interest in the Giraud’s case due to the order to remove Habba and appoint Grace, Mirigliano’s motion has been assigned to Pennsylvania Judge Matthew Brann, who was appointed to the federal district court by President Barack Obama in 2012.
Grace has not indicated whether or not she would challenge Habba’s control of the office and seek to enforce the judges’ order authorizing her appointment.
A spokesperson for the U.S. Attorneys Office in New Jersey did not immediately respond to a request for comment on the motion.
