Another N.J. defendant takes on Habba – this time, one who was indicted by Habba herself

Two weeks after one New Jersey defendant filed a motion challenging acting U.S. Attorney Alina Habba’s authority to prosecute him, a second defendant has followed suit – and he’s armed with some new, potentially compelling arguments that the first defendant lacked.

Cesar Pina, a Franklin Lakes real estate investor and influencer who goes by the alias “Flipping NJ,” was indicted on July 7 on money laundering and bribery charges in what Habba’s office called a “multi-million-dollar Ponzi-like investment fraud scheme.” But as Pina’s lawyers argued in a motion filed yesterday, Habba’s tenure as interim U.S. Attorney may have already expired by the time the indictment was signed, which they say renders the entire case invalid and warrants a dismissal of charges.

“On the date Ms. Habba signed Mr. Pina’s indictment as ‘United States Attorney,’ July 7, 2025, she was acting without legal authority,” Pina’s high-powered legal team – Gerald Krovatin, Abbe Lowell and Norman Eisen – wrote yesterday. “She was not a Senate-confirmed U.S. Attorney, not an Interim U.S. Attorney, not an Acting U.S. Attorney, not First Assistant, and not even a duly-authorized Special Attorney. Because she was acting under no legal authority in bringing this indictment, Ms. Habba’s actions are ultra vires and the indictment must be dismissed.”

The timing of the charges sets Pina’s case apart from that of Julien Giraud, the other defendant who is taking on Habba. Giraud had initially been charged by U.S. Attorney Philip Sellinger during the Biden administration, and his case rests on whether it is unlawful for Habba to prosecute the case despite the unusual nature of her appointment.

The Giraud case has been transferred out of New Jersey, presumably because of the close connections New Jersey’s federal judges have to the dispute; the Third Circuit Court of Appeals reassigned it to Pennsylvania judge Matthew Brann, who will hear arguments from Giraud and the Justice Department on Friday. It remains to be seen whether the Third Circuit will do the same with the Pina case, which is currently before New Jersey District Court Judge Madeleine Cox Arleo.

As laid out by Pina’s lawyers in a detailed timeline, the dispute over New Jersey’s U.S. Attorney’s office began on March 3, when President Donald Trump chose a little-known lawyer named John Giordano as interim U.S. Attorney, a title that comes with a term limit of 120 days. Just three weeks later, however, Trump announced that Giordano would be shifted into an ambassadorship and that the new interim U.S. Attorney would be Habba, his own former personal lawyer and a conservative firebrand.

Just because a new person was in the role, however, did not necessarily mean that the 120-day limit had restarted. Pina’s lawyers are now arguing (citing, among other things, a 1986 memorandum from now-Supreme Court Justice Sam Alito) that the 120-day limit begins the day of a vacancy and cannot be reset, thus meaning that Habba’s tenure ended on July 1 – a week before she signed the indictment against Pina.

Even accepting the Trump administration’s contention that Habba’s appointment reset the 120-day clock, however, Pina’s lawyers say there are still a number of other defects with her appointment that render her authority illegitimate.

In late July, right as Habba’s term was set to expire, New Jersey’s District Court judges met and voted to appoint First Assistant U.S. Attorney Desiree Grace as her acting successor, which federal law allows them to do. Attorney General Pam Bondi, however, fired Grace from the Justice Department, accepted Habba’s resignation as interim U.S. Attorney, and appointed Habba as First Assistant on July 24, thus automatically elevating her to acting U.S. Attorney. (Grace has since filed an administrative appeal challenging her firing, per Bloomberg.)

One key unresolved question that Pina’s lawyers home in on: the exact date of the expiration of Habba’s tenure. The government argues that it did not expire until July 26, 120 days from her official appointment on March 28, thus making the July 22 vote of the federal judges moot since it occurred before a vacancy existed. But Trump’s March 24 social media post announcing Habba’s appointment said it would be “effective immediately,” which would mean Habba’s term ended on July 22, the same day as the judges’ vote.

Pina’s attorneys also argue that, because Habba’s nomination for a full term as U.S. Attorney had been submitted to the Senate, she was ineligible for appointment as acting U.S. Attorney under the Federal Vacancies Reform Act, which specifically bars nominees from taking on the office they’ve been nominated for in an acting capacity. The same argument has been put forward in the Giraud case; the government contends that, because Habba’s nomination was withdrawn shortly before her appointment, federal law was not violated.

“The act of withdrawing a nomination … is not a magic pill that allows a failed nominee to evade subsection 3345(b)(1)(A),” Pina’s lawyers wrote. “The FVRA was enacted precisely to prevent a stalled nominee from serving as the acting head of that same office. To greenlight the loophole the Government proposes, the Court would need to fully ignore the history that gave rise to the statute’s enactment.”

Pina’s motion also puts forward a handful of new arguments that go unmentioned in the Giraud case. For one, it argues that when Habba resigned as interim U.S. Attorney, the authority of acting U.S. Attorney should have passed on to former acting U.S. Attorney Vikas Khanna, who held the post of First Assistant when the vacancy first arose in January. And it notes that Habba never actually served in a subordinate role despite holding the title of “First Assistant,” thus rendering the label functionally meaningless.

The ongoing battles over the U.S. Attorney’s office have caused chaos in the New Jersey court system, with cases grinding to a halt until Habba’s authority is either affirmed or revoked. And given the momentous nature of the debate, it’s possible the question will ultimately end up before the Supreme Court – meaning the situation may remain unsettled for quite some time.