A defendant soon to go to trial in the District of New Jersey has filed a challenge to acting U.S. Attorney Alina Habba’s authority, potentially opening a new front in the ongoing battle over who ultimately gets to pick New Jersey’s top prosecutor.
Julien Giraud Jr., who faces drug and weapons-related charges dating to 2021 that will go to trial on August 4, is arguing that Habba’s appointment last week as acting U.S. Attorney violated the law in several ways. If Habba is allowed to prosecute Giraud, attorney Thomas Mirigliano wrote yesterday, his due process rights and those of other defendants are at risk.
“Giraud Jr. has a constitutional right to be prosecuted only by a duly authorized United States Attorney,” wrote Mirigliano, a New York-based lawyer. “The illegitimacy of Ms. Habba’s appointment undermines Giraud Jr.’s fundamental due process rights – as well as the due process rights of all similarly situated defendants – necessitating dismissal or immediate injunctive relief.”
The motion petitions the judiciary to either dismiss the indictment against Giraud or prevent Habba and her deputies from prosecuting the case; Giraud’s co-defendant in the same case, Julien Giraud III (presumably his relative), has joined the motion as well.
New Jersey District Judge Edward Kiel had been the judge overseeing the case, but the Third Circuit Court of Appeals decided today to transfer it to Matthew Brann, a District Court judge for the Middle District of Pennsylvania, presumably in light of the political implications Mirigliano’s 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.
At the beginning of last week, 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.)
Giraud’s motion today, though, argues that the Trump administration’s actions violate the law in two ways: first, because Habba’s nomination to be the permanent U.S. Attorney disqualifies her from being acting U.S. Attorney even though the nomination was withdrawn; and second, because the federal judiciary has the “exclusive authority” to choose a new U.S. Attorney when an interim U.S. Attorney’s term expires.
“By circumventing the constitutionally mandated appointment procedures, and encroaching upon judicial powers explicitly granted by statute, the executive branch has exceeded its lawful authority,” the motion states. “Thus, all subsequent prosecutorial actions taken by Ms. Habba or any Assistant U.S. Attorneys relying on her purported authority lack constitutional legitimacy and must be deemed ultra vires [done without legal authority]. Allowing the prosecution of Giraud Jr. to proceed under these circumstances would endorse an unconstitutional executive usurpation of judicial authority.”
Had the federal judges’ vote been allowed to stand, Grace would have taken office at midnight on Saturday, 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.
And he’s not the only defendant, of course, who might stand to benefit from questioning Habba’s constitutional authority. Among the other defendants currently under indictment in the District of New Jersey: Rep. LaMonica McIver (D-Newark), who faces controversial assault charges stemming from a scuffle with immigration officers in May.
This story was updated at 1:45 p.m. to note that the case has been transferred to Pennsylvania judge Matthew Brann.
Giraud Habba challenge