President Donald Trump moved to fire the career federal prosecutor New Jersey judges picked to be acting U.S. Attorney for New Jersey, according to court records filed Tuesday.
The Department of Justice revealed Trump’s decision in an email filed with a federal judge in Pennsylvania, who is preparing to weigh in on an escalating fight between the Trump administration and the federal bench in New Jersey.
The filing underscores Trump’s direct involvement in a bid to keep his former personal attorney, Alina Habba, as New Jersey’s top federal prosecutor, despite the expiration last week of her 120-day tenure as interim U.S. attorney and New Jersey judges selecting prosecutor Desiree Leigh Grace to serve in Habba’s place. Trump recently withdrew Habba’s nomination to the Senate for the post, part of an unusual maneuver to bypass the judges’ selection and keep Habba in the role on a longer-term but still temporary basis.
Trump’s workaround is now creating uncertainty across the federal criminal justice system in New Jersey.
A defense attorney, Thomas Mirigliano, is trying to get 2024 drug and gun charges against his client thrown out by arguing the Trump administration’s maneuvering was irregular and unconstitutional. The case, which is now pending before U.S. District Judge Matthew Brann, an Obama appointee based in Pennsylvania, challenges Habba’s authority to run the office and prosecute criminal cases.
In a 29-page response made Tuesday at noon, the Department of Justice said Habba is legally the acting U.S. attorney and walked through each step of the workaround that it says allows Habba to continue serving.
But the department made lengthy arguments meant to keep criminal cases from unraveling in the event a judge decides that Habba’s authority is dubious.
Among other things, the filing argues that the 2024 case at issue was “initiated by a validly empaneled grand jury and a Senate-confirmed U.S. Attorney,” Biden-nominated Philip Sellinger. The department argues prosecutors ultimately report to and derive their power from Attorney General Pam Bondi. No one is questioning Bondi’s legitimacy. The government also argues Bondi named Habba a “special attorney,” a role that gives her authority separate from whether she is U.S. attorney.
The federal public defender in New Jersey, K. Anthony Thomas, emphasized in a separate filing Tuesday morning the “complexity and importance of the legal issues involved.” He argued that different criminal cases may present different sets of facts, depending on whether charges were brought by Habba or her predecessors.
Thomas wrote that “it is critical that the court decide these issues as they are presented by the facts of each case and with the benefit of full briefing,” a suggestion that could create sprawling litigation across New Jersey.
Thomas did not immediately respond to a request for comment.
Documents filed Tuesday by the Justice Department also show the lengths that the Trump administration went to keep Habba on the job and to be sure that Grace got the message she was fired.
Grace said in a LinkedIn post last week that she was honored to be appointed by the judges. At 12:02 a.m. Saturday, when Grace was to have taken office, Saurabh Sharma, a special assistant to the president, emailed Grace arguing the judges lacked the authority to appoint her and “even if” the judges had the authority, the president was removing Grace from office. The same day, Jay Macklin, the general counsel for the Executive Office for United States Attorneys, sent Grace a letter calling out the LinkedIn post saying, “as you are well aware, you were removed from employment.”
According to a Monday filing by another defense attorney, Grace’s departure is also causing other problems for the U.S. Attorney’s Office. Prosecutors asked to delay the trial in at least one case — a triple homicide, including a pregnant woman — because Grace had been handling it.
Habba picked Grace, a respected career prosecutor who is a registered Republican, to be her No. 2 earlier this year. But as Habba’s nomination became imperiled and her tenure as interim U.S. attorney was set to expire, district court judges selected Grace to replace Habba under a federal power that allows judges to appoint prosecutors until the Senate confirms the president’s nominee.
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