A criminal defendant seeking to torpedo President Donald Trump’s top federal prosecutor in New Jersey is drawing inspiration from an unusual source: U.S. District Judge Aileen Cannon.
The defendant, Julien Giraud Jr., argues that the Trump appointee’s bombshell ruling last summer dismissing a federal criminal case against Trump by finding that special counsel Jack Smith’s appointment was unconstitutional applies equally to Trump’s temporary U.S. attorney pick, Alina Habba.
Giraud’s attorney Thomas Mirigliano says the workaround Trump used to keep Habba in place after a 120-day interim appointment expired directly conflicts with Cannon’s ruling.
“As Judge Cannon explained in Trump, when executive officials deliberately engineer an appointment in violation of statutory and constitutional mandates, the only effective remedy is dismissal or, at the very least, disqualification of the unconstitutionally appointed officer and her subordinates,” Mirigliano wrote in a filing Wednesday.
Mirigliano’s bid is a long shot, meant to spare his client from further prosecution for gun and drug crimes that were brought by a grand jury and filed in 2024 when there was no uncertainty about the leadership of the U.S. attorney’s office. But it’s one of the first efforts to turn Cannon’s ruling against the Trump administration’s interests.
The case, which is 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. Brann is not yet sold that questions around Habba’s appointment should derail ongoing prosecutions that have largely been carried out by assistant U.S. attorneys. However, the issue has roiled federal criminal cases in New Jersey while the matter remains unresolved.
Cannon last summer concluded in a 93-page ruling that Smith’s appointment violated the Appointments Clause of the Constitution and, in turn, she dismissed the federal criminal case against Trump charging him with amassing highly sensitive national security secrets at Mar-a-Lago and then obstructing government efforts to reclaim them.
Though Smith appealed Cannon’s ruling, the case was ultimately dropped after Trump won the 2024 election, so the Atlanta-based 11th Circuit Court of Appeals never ruled on the matter. Cannon’s ruling itself does not bind any other court, but Brann could consider it as he weighs Giraud’s argument.
Cannon’s ruling doesn’t deal directly with the roundabout way Trump maneuvered to keep Habba in her role. But her ruling made broad assertions about limitations on presidential appointment powers.
“It is undisputed, and correct, that all United States Attorneys (93 currently) have been appointed by the President and confirmed by the Senate throughout our Nation’s history, except that Congress has permitted the Attorney General to appoint interim United States Attorneys with specific restrictions,” Cannon ruled.
Mirigliano argues that the Trump administration has gone around that system in a way that is irregular and unconstitutional by appointing Habba after a 120-day interim term expired.
The Justice Department in a Wednesday night legal filing said the repeated reliance on Cannon was “misplaced” because Cannon’s ruling was focused on the powers of a special counsel.
“Nothing like that occurred here,” the DOJ wrote. “The office of United States Attorney, and the position of First Assistant U.S. Attorney to which Ms. Habba was lawfully designated, are well established and subject to the plenary authority and control of the Attorney General.”
The Justice Department, while arguing Habba was rightfully made acting U.S. attorney, also has a fallback argument that criminal cases shouldn’t be tossed even if the court finds Habba's appointment unconstitutional. The department contends Habba can “do anything the U.S. Attorney can do” because Attorney General Pam Bondi delegated her as a “special attorney.”
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