The Trump administration last week announced Alina Habba would remain as New Jersey’s U.S. attorney. A lawyer says her appointment was illegal. (Photo by Spencer Platt/Getty Images)
An Irvington man facing drug distribution and gun charges asked a federal judge to dismiss the case against him, arguing that last week’s reappointment of Alina Habba as New Jersey’s acting U.S. Attorney violated federal law and his constitutional rights.
The motion is the latest twist in Habba’s tumultuous tenure as New Jersey’s chief federal law enforcement official and threatens to upend hundreds of criminal prosecutions pursued by her office — if her tenure is to continue at all. New Jersey’s federal judges last week named Habba’s deputy, Desiree Grace, as U.S. attorney, but the Trump administration removed Grace and renamed Habba instead.
Thomas Mirigliano, who is representing the Irvington man, Julien Giraud, said in a Sunday court filing that he wants a judge to bar Habba “from exercising further prosecutorial powers in this matter.”
“The Attorney General’s dismissal of Ms. Grace and reinstatement of Ms. Habba constitutes unlawful executive interference,” the filing reads.
President Donald Trump in March named Habba, then a personal lawyer, as acting U.S. attorney and formally nominated her in June for confirmation by the U.S. Senate. But her nomination never advanced (New Jersey’s two senators, Cory Booker and Andy Kim, both Democrats, oppose Habba’s confirmation).
Federal law allows unconfirmed U.S. attorney nominees to run their offices only for 120 days before their district’s federal judges appoint a successor. Habba’s 120-day term ended Friday.
Last week, after New Jersey District Court judges selected Grace to replace Habba, the Trump administration fired Grace, Habba’s nomination was withdrawn, and Habba was installed as the office’s top deputy, a maneuver that administration officials said makes her the office’s leader. The Federal Vacancies Reform Act gives first-assistants elevated to lead their department up to 210 days in the job.
It’s not clear who ordered Grace’s removal. Department of Justice officials lack the authority to overwrite court orders, and while the U.S. Constitution may grant Trump the ability to fire judicially appointed U.S. attorneys, the question is far from settled and will likely be answered in court.
In Mirigliano’s filing, which was first reported by the New Jersey Globe, he argued Habba’s reappointment violates two portions of federal law that bar interim appointments of presidential nominees.
Though the Federal Vacancies Reform Act allows for first assistant U.S. attorneys to take helm of their departments in case of vacancies, it also bars those who were not top deputies for at least 90 days in the preceding year from serving.
It also bars individuals from being elevated to positions for which they were nominated but failed to be confirmed. Separate federal law bars the attorney general from appointing as U.S. attorney individuals to whom the Senate “refused to give advice and consent.”
“Ms. Habba’s nomination submission triggered this statutory prohibition. Thus, Ms. Habba’s re-appointment is invalid,” Mirigliano wrote.
This isn’t the first time Trump officials have sought to replace a judicially appointed prosecutor.
In 2020, then-Attorney General William Barr announced that Geoffrey Berman, then the Southern District of New York’s chief prosecutor, had resigned. Berman said he had not resigned and did not intend to.
The following day, Barr claimed Trump had fired Berman, though Trump said he was “not involved” in the firing. Berman only resigned when his top deputy was named to succeed him. Barr had sought to install Craig Carpenito, then New Jersey’s U.S. attorney, as the Southern District’s chief federal prosecutor.
About two months after Berman’s departure, district prosecutors secured a money laundering and wire fraud indictment against top Trump booster Steve Bannon, who was convicted on the charges and later pardoned by Trump.
The swirl around Habba’s appointment is likely to draw more controversy. Since she was installed in March, a federal judge has rebuked her office for lodging then quickly dismissing criminal charges against Newark Mayor Ras Baraka. The mayor has claimed the charges were politically motivated.
Habba has also filed criminal charges against Rep. LaMonica McIver (D-10), who likewise claims politics motivated Habba. Habba’s pledge to a podcast host that she would use her office to “turn New Jersey red” has spurred a complaint that she violated the Hatch Act, a law barring federal employees from engaging in political activities while they are working in an official capacity.