One day after a New Jersey defendant filed a motion arguing that allowing acting U.S. Attorney Alina Habba to prosecute his case would be a violation of his due process rights, the Justice Department has submitted a 28-page brief laying out why Habba’s appointment was made properly and should be allowed to stand.
The crux of the brief, written by Assistant U.S. Attorney Mark Coyne, is that President Donald Trump and Attorney General Pam Bondi ultimately have final say over who gets to serve as acting U.S. Attorney – a power they used last week when they chose Habba in place of a career prosecutor appointed by New Jersey’s federal judges – and that disagreements over Habba’s appointment shouldn’t interfere with cases that her office is prosecuting.
“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,” states the brief, which was officially submitted by Habba, Bondi, and two other Justice Department officials. “That is his prerogative; this Court cannot second-guess it.”
The case is being overseen by Judge Matthew Brann of the Middle District of Pennsylvania; Brann received the assignment from the Third Circuit yesterday in place of Judge Edward Kiel of New Jersey, presumably to avoid any conflicts of interest given how closely entangled New Jersey’s District Court is with the dispute at hand. A status conference has been scheduled for today at 3 p.m.
Habba had been named by Trump as New Jersey’s interim U.S. Attorney in March, an appointment that came with a time limit of 120 days unless Habba could either win confirmation in the U.S. Senate or earn the support of a majority of New Jersey’s District Court judges. Habba’s nomination, submitted to the Senate on July 1, never moved forward, and federal judges voted last week to instead appoint First Assistant U.S. Attorney Desiree Grace, Habba’s deputy, as the new U.S. Attorney once Habba’s term expired on July 25.
The Trump administration pre-empted that, however, by firing Grace as First Assistant U.S. Attorney and replacing her with Habba, who then automatically ascended to the role of acting U.S. Attorney, thus extending her tenure. Habba’s Senate nomination was also withdrawn, since pending nominees cannot become acting U.S. Attorneys.
Grace tried to insist that the judges’ vote still stood and that she’d take office as U.S. Attorney at midnight on July 26, but to no avail. In its brief today, the Trump administration publicly confirmed for the first time that even if Grace had taken office, she would have been immediately removed by Trump anyway.
In a motion filed yesterday, attorney Thomas Mirigliano argued that by overriding the federal judges’ vote, and by choosing someone as acting U.S. Attorney who until recently had been a pending nominee in the Senate, Trump and Bondi had violated the law and the due process rights of his client, Julien Giraud Jr., who faces drug and weapons charges.
The motion asked either that Giraud’s indictment be dismissed or that Habba and her office be prevented from prosecuting him. Per the New York Times, federal court proceedings across New Jersey were quickly brought to a halt yesterday as prosecutors and judges wait to see whether Habba’s authority as acting U.S. Attorney is determined to be legitimate.
The arguments put forward by today’s Justice Department brief are twofold. First, the brief contends that nothing about Habba’s appointment was “irregular,” as Mirigliano had alleged; by resigning as interim U.S. Attorney and withdrawing her nomination from the Senate, it argues, Habba dutifully followed the requirements of the Federal Vacancies Reform Act and was eligible to become acting U.S. Attorney.
“The Attorney General properly appointed her as the First Assistant United States Attorney; the First Assistant can serve as the Acting United States Attorney under the Federal Vacancies Reform Act when that office is vacant; and the President properly removed as United States Attorney an individual whom the District Court for the District of New Jersey purported to appoint,” it states.
(The brief also takes issue with the fact that the judges’ vote to appoint Grace happened several days before Habba’s tenure ended, and thus they had no actual vacancy to fill. The firing of Grace as First Assistant, and the appointment of Habba to replace her, all happened before the judges had any official authority to act, it argues.)
Secondly, the brief argues that regardless of the appointment dispute, Habba has also been appointed as a Special Attorney to the Attorney General with specific authority over the District of New Jersey, which gives her the legal authority to continue overseeing cases and nullifies Mirigliano’s argument that prosecutions coming from her and her office are illegitimate.
“Whether or not Ms. Habba technically qualifies as Acting United States Attorney, the Attorney General has validly delegated to her the authority to supervise all pending prosecutions and other matters in the USAO-NJ,” it states. “Similarly, the Assistant U.S. Attorneys assigned to those matters exercise the Attorney General’s delegated authority subject to her supervision. And there is no basis in any event to disqualify the entire USAO-NJ from those matters.”
Allowing any outcome other than Habba’s continued service as U.S. Attorney, the brief ultimately asserts, would be a violation of the separation of powers and an infringement on Trump’s and Bondi’s authority to appoint and fire prosecutors at their choosing.
“The real separation of powers violation in this case would be to force the President and Attorney General to permit a judicially appointed United States Attorney to remain in office despite their stated preference for someone else to lead that office,” it states.
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