A federal judge wants further briefing on the legality of Alina Habba’s appointment as acting U.S. Attorney, but rejected a bid by a man facing drug and weapons-related charges to dismiss the incitement because of claims that Habba was not legally the state’s top federal prosecutor.
Matthew Brann, the chief U.S. District Court judge for the Middle District of Pennsylvania, determined that the indictment of Julien Giraud was properly signed and that post-indictment events didn’t retroactively invalidate the 2021 charges.
“It escapes logic to contend that [Habba’s] appointment somehow retroactively taints the indictment, or any aspect of the prosecution that preceded it,” he wrote. “The legality of Ms. Habba’s appointment is squarely presented.”
The Giraud trial is set to begin today.
“Whether the Attorney General may statutorily or constitutionally delegate all of the powers of a specific office created by separate statute and constrained by its own statutory limitations in order to evade those limitations is a completely novel question, and one that inherently implicates the Appointments Clause and thus the merits of the Girauds’ motion,” Brann stated. “I defer resolving it until it has been fully briefed.”
Briefs from Giraud’s attorney is due on Thursday, with a response by the government on August 12. Brann also permitted an amicus brief from the Association of Criminal Defense Lawyers of New Jersey be submitted by August 13.
New Jersey District Judge Edward Kiel had been the judge overseeing the case, but the Third Circuit Court of Appeals decided to transfer it to Brann, presumably in light of the political implications the filing has brought.
Habba was chosen by President Donald Trump to be New Jersey’s interim U.S. Attorney in March, a title that under federal law she could only hold for 120 days. In order for her tenure to be extended past then, she either needed to be confirmed by the Senate – Trump submitted her nomination on July 1 – or approved in a vote of New Jersey’s District Court judges.
Two weeks ago, the state’s District Court judges voted not to retain Habba, instead choosing her deputy, First Assistant U.S. Attorney Desiree Grace, as the acting U.S. Attorney effective July 26.
But the Trump administration refused to accept the legitimacy of the appointment, and found a workaround to keep Habba on instead. Attorney General Pam Bondi fired Grace, after which Habba resigned as interim U.S. Attorney and was appointed to succeed Grace as First Assistant – a role that, in the event of a vacancy in the U.S. Attorney’s office, automatically becomes acting U.S. Attorney. (Habba’s nomination in the Senate was also withdrawn, since pending Senate nominees can’t be acting U.S. Attorneys under the Federal Vacancies Reform Act.)
Had the federal judges’ vote been allowed to stand, Grace would have taken office at midnight on July 26, but the weekend went by without any public attempts to challenge the maneuver keeping Habba in office. Giraud’s filing, though, could stand to change that and turn the appointment dispute into a protracted legal fight.
Habba Giraud