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A federal judge is set to decide this week if President Donald Trump’s appointee Alina Habba is the rightful acting U.S. attorney in New Jersey after the president sidestepped the Senate confirmation process to keep Habba in the job.
Judge Matthew Brann did not indicate how he would rule during a hearing on Friday, but he said he would make his decision by the middle of this week.
Brann, an Obama appointee serving in the Middle District of Pennsylvania, is presiding over the matter after the chief judge of the Third Circuit Court of Appeals, which covers New Jersey and Pennsylvania, decided the case presented too much of a conflict for the New Jersey judges.
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The fight over Habba’s authority was brought by a criminal defendant named Julien Giraud Jr., who is facing routine drug and gun charges in New Jersey.
After Trump appointed Habba, the president’s former personal defense attorney, as acting U.S. attorney, Giraud’s attorney alleged that the move violated his client’s constitutional rights because of the string of unusual moves it took to attempt to re-install Habba to the role.
Habba, who does not have a clear path to Senate confirmation, was serving in the meantime as the interim U.S. attorney, which carries a 120-day tenure.
New Jersey’s federal judges, in an unusual move, decided against extending her term and instead appointed career attorney Desiree Grace to the job. Trump fired Grace, withdrew Habba’s nomination as permanent U.S. attorney and then reinstated Habba as acting U.S. attorney, which keeps Habba in charge for at least another 210 days under federal statute.
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“It goes completely against what the statute is meant to protect,” Giraud’s attorney argued in court on Friday, according to the New Jersey Monitor.
The DOJ argued that the president and Attorney General Pam Bondi followed all the proper protocols under federal vacancy laws to keep Habba in charge.
“The Girauds invent a requirement that, to serve as an ‘Acting officer’ … one must already be the first assistant to that office when the vacancy arises,” DOJ attorneys wrote in court papers. “That is dead wrong textually; it makes no sense practically; and it relies on a mistaken premise.”
The case comes as Trump has also made similar unconventional maneuvers in other blue states, including California and New York, because, like Habba, his appointees for those states have no clear path to Senate confirmation.
Lawmakers and outside groups have also weighed in on Habba’s appointment. The Association of Criminal Defense Lawyers of New Jersey said in an amicus brief ahead of the hearing that Trump and Attorney General Pam Bondi violated the Appointments Clause of the Constitution with their “novel” orders on Habba.
“To circumvent the laws that Congress passed to govern the appointment of U.S. Attorneys, the Attorney General did something unprecedented,” the group wrote.
They laid out how Bondi made Habba a “special attorney” before designating her as the office’s “first assistant,” the position previously held by Grace, which Bondi maintains allows her to deem Habba the acting U.S. attorney under the federal vacancy laws.
“To our knowledge, no prior Attorney General has ever attempted this,” the group said.
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