The clash between the Trump administration and the courts over who is leading the U.S. Attorney’s Office in New Jersey is already spilling into criminal cases.
A defense attorney is trying to get charges against his client thrown out by arguing the Trump administration illegally maneuvered to keep Alina Habba as the state’s top federal prosecutor, despite the expiration of her 120-day tenure. The defense filing, made on Sunday, comes after days of confusion over who is leading the office because of complex and contested rules over filling vacancies.
In the motion, on behalf of a defendant in a drug and gun-related case, attorney Thomas Mirigliano said a workaround Trump officials found to keep Habba was “irregular” and unconstitutional.
In a nine-page filing, Mirigliano said his client is “facing an imminent criminal trial proceeding under questionable legal authority” and asked for the charges to be thrown out or that Habba and her assistants be barred from exercising further prosecutorial powers in the case.
The problems for the U.S. Attorney’s Office could grow if other defense attorneys open a flood gate of similar motions. Even if Habba eventually prevailed against legal challenges to her authority as acting U.S. Attorney, there could be months of uncertainty over whether the office’s criminal cases — some 1,500 a year — could be thrown out or otherwise undermined.
Mirigliano argued that Desiree Leigh Grace — a career prosecutor whom New Jersey district court judges picked last week to replace Habba — is the rightful interim U.S. attorney.
Grace, a registered Republican, said last week she planned to take the job even after Attorney General Pam Bondi fired her. Then, on Thursday, the Trump administration revealed a multi-step maneuver to keep Habba on the job.
Mirigliano said the Trump administration’s decision to workaround Grace’s appointment represents an “unconstitutional executive usurpation of judicial authority.”
“I got the idea over the weekend because my trial was imminent and I thought it was an important issue that needed to be litigated,” he said in an interview.
Mirigliano told POLITICO that a previously scheduled hearing on Monday was cut short because of the motion, which is now being handed off to another judge. Mirigliano originally filed the motion with U.S. District Judge Edward Kiel, the Biden appointee overseeing the criminal case, but on Monday the 3rd Circuit Court of Appeals transferred the case to Chief Judge Matthew Brann of the Middle District of Pennsylvania in an order that declared “it is in the public interest to do so.”
Brann, based in Williamsport, is an Obama appointee who in 2020 eviscerated President Donald Trump’s attempt to throw out millions of votes in the Keystone State, dismissing his campaign’s lawsuit with a withering opinion that described a dearth of proof to justify the drastic demand.
Presumably, Kiel was among the judges who voted on whether to appoint Grace to replace Habba.
Beyond that, the judges have not commented on the conflict between Grace and Habba. Grace has only publicly commented on LinkedIn and has not said anything about whether she would challenge Habba’s control of the office.
A spokesperson for Habba declined to comment on the recent legal filing disputing her authority, but last week, Habba said the judges “preempted and struck out” when they tried to replace her.
There’s little precedent for a dispute over the rightful U.S. attorney. However, a similar fight erupted in the 1990s — and the courts ruled that criminal cases could advance, even amid the uncertainty.
At the time, Puerto Rico’s U.S. attorney Guillermo Gil — appointed by judges to an indefinite term that stretched more than six years — faced increasing challenges from defendants who said his appointment was unconstitutional.
Despite multiple challenges, only one district judge agreed that Gil had been unlawfully serving in the position. But the 1st Circuit Court of Appeals overturned the ruling, saying that despite the cloud over the U.S. attorney’s position, the office could continue to function through the work of assistant U.S. attorneys. That’s because those prosecutors derive their authority straight from the attorney general, the court found.
“AUSAs are themselves representatives of the government,” the three-judge panel ruled. “Because they are appointed directly by the Attorney General … their ability to act does not hinge on the authority of the local United States Attorney.”