WILLIAMSPORT, Pennsylvania — A federal judge plans to rule next week on whether controversial acting New Jersey U.S. Attorney Alina Habba has the right to continue in her role.
Judge Matthew Brann, who sits in Pennsylvania’s Middle District, joked Friday that two cases challenging Habba’s authority over a district 130 miles away from where he sits fell to him “for my sins.” He said he hopes to rule Wednesday, but certainly will by the end of the week, and he suggested the losing side would inevitably appeal his decision.
Brann — a Republican appointed in 2012 by Democratic President Barack Obama — asked pointed questions to both sides during the nearly four-hour hearing, which often turned on obscure statutory interpretations and legal doctrine but grew heated toward its end.
And while Brann gave few hints as to what side he’ll come down on as to whether Habba is the rightful acting U.S. attorney, he peppered government attorneys with skeptical questions about her appointment by Attorney General Pam Bondi as "special attorney," which could allow her to effectively oversee the office for years without the U.S. attorney title.
Two criminal defendants in New Jersey — Julien Giraud Jr., who’s facing gun and drug charges, and Cesar Pina, a house-flipping influencer who’s charged with running a Ponzi-like real estate scheme — are challenging Habba’s authority and seeking dismissal of their indictments. Giraud was charged before Habba took office, and Pina after.
The challenges have disrupted many criminal proceedings in New Jersey, with many judges postponing arraignments and potentially delaying trials. Attorneys are watching anxiously, with many expecting it to land at the U.S. Supreme Court.
President Donald Trump announced Habba’s appointment as interim U.S. attorney — which has a 120-day limit — on March 24, “effective immediately.” Habba, who had worked as Trump’s personal attorney and had no prosecutorial experience, was sworn in four days later. She stoked controversy shortly after Trump’s announcement by saying in an interview, “We could turn New Jersey red.” She also pressed and then quickly dropped charges against Newark Mayor Ras Baraka for trespassing at a privately owned Immigration and Customs Enforcement facility in Newark, and she is currently prosecuting Democratic Rep. LaMonica McIver for assault over a scuffle during Baraka’s arrest.
Trump formally nominated Habba for the role July 1, but New Jersey’s two Democratic senators refused to allow the nomination to proceed, dooming her confirmation. On July 22, instead of reappointing Habba, New Jersey’s district court judges appointed then-First Assistant U.S. Attorney Desiree Grace as acting U.S. attorney, effective either immediately or on the expiration of Habba’s 120 days in office. (As first assistant, Grace would automatically assume the role in the event of a vacancy).
But the Trump administration on July 22 fired Grace, with Bondi posting on social media that the department “does not tolerate rogue judges.” Two days later, Trump withdrew his nomination of Habba as U.S. attorney, and she resigned her position as interim U.S. attorney. She was then appointed first assistant U.S. attorney, allowing her to automatically take on the acting role. Bondi also said she made Habba “Special Attorney to the Attorney General,” which she said gave her the authority of a U.S. attorney. The Trump administration argues that Habba began the job March 28, which started the 120-day clock, and so the judges did not have a vacancy to fill when they chose Grace to replace her.
In court, Trump administration attorneys added some clarity to Habba’s start date, noting that her immediate predecessor, John Giordano, had continued signing orders as interim U.S. attorney until March 28 and that Habba’s first day of pay was March 29. They characterized Trump’s announcement, made in a social media post, as a “directive” to Pam Bondi to appoint Habba.
Brann suggested that maneuver to keep Habba in charge of the office as special attorney would render the law on appointing U.S. attorneys “pointless” since a person could do the job indefinitely without Senate confirmation.
“Even if you believe [the law] is ambiguous — and I don’t think it is — going to the legislative history is a death knell,” Brann said, referring to a Senate report made during the passage of the Federal Vacancies Reform Act in 1998.
The distinction between Habba’s role as acting U.S. attorney and special attorney is important because the acting position can only serve 120 days, while there’s no time limit for a special attorney.
Nevertheless, later in the hearing, Brann said, “It’s very likely that Alina Habba is going to end up down the road as the United States attorney of the district of New Jersey.” He did not elaborate on his reasoning.
The defendants challenging Habba’s authority argued in part that her nomination by Trump made her ineligible to serve in the acting role under the Federal Vacancies Reform Act.
“There is no support for a finding that withdrawal of the nomination would remove someone from the bar,” said Giraud attorney Thomas Mirigliano.
But Henry Whitaker, counselor to the attorney general, said the language of the law is written in the present tense. “At that moment,” he said, referring to the Trump administration's legal maneuvering, “there was no pending nomination.”
“This is not circumvention," Whitaker said. “It is simply a way for the executive branch to have officials temporarily serving the functioning of the office.”
The two sides also debated whether the Trump administration could stack 120-day interim appointments. “It can’t be the case ... that the attorney general can terminate an interim appointment on day 119 and then appoint another person?” said Gerry Krovatin, an attorney for Pina. “That could go on forever.”
Whitaker said that the 120 days are “simply a shorter version of a term” and that while Bondi has the authority to continue making the appointments, the limit is designed to have her continually consider whether to do so.
Brann questioned that. In a 2006 law reauthorizing the Patriot Act, Congress initially stripped away the 120-day limit for interim U.S. attorney appointees. But following a scandal over politicization of the offices, Congress in 2007 restored it.
“Statutes are designed to solve problems,” Brann said. “So what problem is an unlimited 120-day term solving?”
At the end of the hearing, Brann asked whether Habba should recuse herself from all cases until he rules so that they can move forward without controversy. Whitaker said that all of the cases also include a deputy attorney general with authority to prosecute them, so the fact that Habba’s status is in question shouldn’t affect them.
Whitaker resisted further, saying that the New Jersey judges’ decision not to renew Habba's tenure was unusual and that it "precipitated this constitutional crisis.”
“The executive branch should have the people that they want doing core executive functions, like prosecuting crime,” Whitaker said.
Krovatin said Whitaker was mislaying blame. “This crisis was caused by appointing someone who has no business being U.S. attorney for New Jersey or anywhere else,” he said.
Krovatin also said questions about Habba’s status had caused "enormous confusion” among lawyers. And, referring to Bondi’s statement about “rogue” judges, said that the Department of Justice’s attitude “has been offensive from day one.”
Mark Coyne, a high-ranking assistant U.S. attorney in the New Jersey office, stood and said sharply, “Not from me and not from my colleagues."
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