When Julien Giraud Jr. was federally indicted on drug and gun charges last year in New Jersey, he had little reason to think his case would double as a challenge to the lawfulness of Alina Habba’s position as U.S. attorney. But that challenge is now playing out, as the defendant argues that the Trump ally isn’t lawfully serving in her position and therefore the office she purports to lead lacks the authority to prosecute him.
Whether or not she is lawfully in the role of U.S. attorney could have vast implications beyond this one case.
The challenge involves rather technical issues about federal law over vacancies and how they can be filled, so take a deep breath before taking in the following background.
Habba had been temporarily serving as U.S. attorney since March, but her temporary period expired this month without her being confirmed by the Senate to serve full time. New Jersey’s federal judges used their legal authority to appoint a different prosecutor from the office, Desiree Leigh Grace, as the new interim U.S. attorney. But the Trump administration moved to fire Grace. President Donald Trump also withdrew his nomination of Habba, she technically resigned, and the administration then reinstalled her through another mechanism to keep her in the job as acting U.S. attorney.
Got all that? I told you it was technical.
So what’s Giraud’s argument? In a motion filed Sunday ahead of his trial set for next week, his lawyer Thomas Mirigliano wrote that Habba’s reappointment violated federal law because the fact that Trump submitted Habba’s nomination to the Senate prevents her from serving in an acting capacity, regardless of whether Trump subsequently withdrew her nomination or not. He argued that being prosecuted by an unauthorized U.S. attorney undermines his due process rights, so he asked U.S. District Judge Edward Kiel, the New Jersey judge handling his case, to dismiss the indictment or at least to block Habba or any prosecutor acting under her authority from prosecuting him.
The New York Times reported that federal court proceedings throughout New Jersey “were abruptly canceled on Monday because of uncertainty over” Habba’s authority, citing Giraud’s case and others. Habba is one of several lawyers who represented Trump in his personal capacity and have gone on to high-ranking Justice Department posts during his second term.
After Giraud filed his motion, the chief judge of the U.S. Court of Appeals for the 3rd Circuit, which covers New Jersey and nearby states, tapped Pennsylvania’s chief federal trial judge for the state’s middle district, Matthew Brann, to preside over the matter. The chief circuit judge made the move under a law that says chief circuit judges “may, in the public interest, designate and assign temporarily any district judge of the circuit to hold a district court in any district within the circuit.”
The 3rd Circuit, incidentally, is the appeals court to which another Trump personal lawyer-turned-Trump DOJ lawyer, Emil Bove, is awaiting Senate confirmation. Several whistleblowers have come forward against him to raise concerns about his conduct at DOJ and his truthfulness to lawmakers at his confirmation hearing last month.
Opposing Giraud’s motion on Tuesday, the DOJ maintained that Habba is lawfully in her role and that even if she weren’t, “there would be no basis for dismissing this indictment or prohibiting everyone in the U.S. Attorney’s Office for the District of New Jersey (USAO-NJ) from participating in this prosecution.” The DOJ asked that the motion be denied and the case be transferred back to Kiel in New Jersey.
Brann ordered a status conference with the parties to take place Tuesday afternoon at 3:00 p.m., so the direction in which the matter is headed could become clearer later Tuesday. Whatever happens at the trial court level might not be the last word on this consequential and thorny issue, so this could be just the start of drawn-out litigation.
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