A federal judge on Thursday said President Donald Trump’s former personal lawyer Alina Habba is not legally serving as the acting US attorney for New Jersey, laying the groundwork for a potential review of the Trump administration’s method for installing some top prosecutors around the country.
“Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not,” wrote Judge Matthew Brann of the Middle District of Pennsylvania, who was transferred two cases challenging her authority.
“And because she is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases,” Brann added in his 77-page opinion.
Habba’s authority as the top federal law enforcement officer in the state was challenged by defendants in two criminal cases who argued her recent appointment as acting US attorney is invalid because it violates federal law.
The decision is expected to be appealed, a delay that may cause further confusion within the federal criminal court system in the Garden State.
Amid the uncertainty of who is in charge, judges cancelled plea hearings and sentencings, and grand juries have not returned any indictments in recent weeks.
CNN has reached out to Habba and the Justice Department for comment.
Challenged by three defendants
Defendants Julien Giraud Jr. and Julien Giraud III moved to dismiss their indictment on drug-related charges, arguing Habba’s appointment was illegal. Another defendant, Cesar Pina, who is accused of defrauding investors, also sought to dismiss his indictment, arguing it was handed up after Habba’s term expired.
Under federal law, interim US attorneys can only hold the position for 120 days, after which district judges can appoint a temporary US attorney if the administration’s choice is not confirmed by the Senate. When there is no US attorney, under the Federal Vacancies Reform Act, the first assistant by default becomes the acting US attorney. In this case, the judges declined to appoint Habba and instead went with the first assistant, who was promptly fired by the Justice Department.
Democrats have placed holds on Trump’s picks for US attorneys preventing all of them from a full Senate vote. The terms of several of Trump’s interim choices are expiring and the Trump administration has extended some of their terms using the FVRA. Habba’s is the only one, so far, whose appointment has been challenged.
The Justice Department argued the president has broad authority to place whoever he wants into the top federal job.
“The President has made clear that he will not permit anyone other than Ms. Habba to fill the current vacancy in the office of the United States Attorney on a temporary basis. That is his prerogative; this Court cannot second-guess it,” prosecutors wrote in a court filing.
“It is important that a Department of Justice component is overseen by someone who has the backing of the Executive Branch, and that the USAO can continue with its important work even when there is no Senate-confirmed, interim, or acting U.S. Attorney,” prosecutors wrote in another filing.
The defendants called Trump’s move to install Habba as a special attorney and designate her as acting US attorney an end run around Congress and federal law.
“Perhaps recognizing the problem the President and she created, Attorney General Bondi then devised a ‘Rube Goldberg’ contraption to try to effect the appointment of Ms. Habba as U.S. Attorney, circumventing the congressionally mandated appointment scheme and the Senate’s advice and consent role,” lawyers for Pina wrote in a court filing.
At a hearing last week in Williamsport, Pennsylvania, Brann recognized that the Justice Department has limited means to pursue an appeal at this stage in a case, but he suggested he would tee up the decision for appellate review.
“I think we may be getting on the same page to tee this up, because I have a feeling …. that someone is going to be unsatisfied with my ruling,” the judge said.
“I think it’s very likely that Ms. Habba is going to end up, at some point down the road, as the United States Attorney for the District of New Jersey. I don’t know that. I don’t have a crystal ball. But I think that’s the case,” the judge added, according to a transcript of the hearing.
This story has been updated with additional developments.
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