Habba is confident she'll be the top US attorney in New Jersey, but it's chaos in the meantime
It's not clear how long the pause in activity will last.
'Right now in the District of New Jersey there are bail hearings happening and initial appearances, but otherwise the practice of criminal law is at a standstill,' said a criminal defense lawyer who practices in the state. 'You can't have that happen.'
The issue is currently playing out in a drug case, where a lawyer is attempting to have charges dismissed based on the argument that Habba is not serving legally.
A federal judge from Pennsylvania, who was transferred the case to hear the arguments, said Tuesday he will first decide whether the defendants, Julien Giraud Jr. and Julien Giraud III, are entitled to any benefit – including the dismissal of his indictment – even if Habba was appointed illegally. The judge said he will only decide the issue of whether Habba is appointed lawfully if necessary.
Judge Matthew Brann said the Justice Department provided 'persuasive authority' that even if Habba was appointed illegally that the case should proceed. The Justice Department argued the indictment was handed up last year under a Senate-approved US attorney and authority is conferred to prosecutors on the case through the attorney general.
'It may be the case that determining what relief is available to the Girauds is inextricably bound up with the extent of the statutory or constitutional violation, if any, thereby rendering consideration of the merits question necessary in any event,' said Brann, the chief judge for the Middle District of Pennsylvania, in an order Tuesday.
Habba told CNN, 'I am confident we will win any and all attempts to thwart the well established Article II powers of the Executive Branch and the President of the United States.'
The tug of war over whether Habba is legally the acting US attorney in New Jersey comes as the White House has faced difficulty getting its picks for US attorney positions through Congress or adopted by federal judges. The fallout in New Jersey could foreshadow potential challenges in other districts, which could have broader implications on the criminal justice system.
The broad near-term impact was referenced by the New Jersey judge overseeing the Giruads' case, before it was transferred to Pennsylvania.
'I don't know ultimately how it's going to end up; but that motion, depending on how it's resolved, may affect how this case is going to proceed. And as a result of that, I think you'll soon find out that other judges are going to stay whatever criminal matters there are pending,' Judge Edward Kiel said during a hearing on Monday when he postponed the trial, according to a transcript of the proceeding.
Kiel said decisions made now, such as plea agreements, may need to be redone in the future if the US attorney is invalidated.
Plea hearings scheduled for this week were postponed with no future date, according to several lawyers and court dockets. Sentencing in other cases were also postponed.
The federal public defender's office in New Jersey is urging the judge to rule narrowly on the issues before him in the Giruads' case.
In a letter Tuesday, the defenders' office noted the potential ramifications of the ruling, adding there are other circumstances that could warrant further legal briefing, such as indictments, grand jury subpoenas and other documents that are signed by Habba.
'Because that is a separate question that is not raised by the facts of this case and has not been fully briefed, I respectfully request that the Court not address it at this time,' wrote K. Anthony Thomas, the federal public defender in the state.
It's unclear whether other defendants will challenge Habba's authority.
Habba was first appointed by Trump as interim US attorney in March, a position that expired at 120 days. Habba selected as First Assistant US Attorney Desiree Grace, a well-respected prosecutor in the office. The district court in New Jersey earlier this month declined to appoint Habba US attorney and instead elected Grace to serve as US attorney.
Attorney General Pam Bondi fired Grace and Habba resigned her position. Bondi appointed Habba as a special attorney and designated her as the first assistant US attorney, effectively making her acting US attorney again.
The Justice Department argues Habba's appointment is valid under the Federal Vacancies Reform Act and other executive powers.
'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, subject in turn to the supervision by the Attorney General and Deputy Attorney General, both of whom are Senate-confirmed,' the Justice Department wrote in a court filing Tuesday.
'The FVRA therefore permits her to 'perform the functions and duties of the office' of United States Attorney 'in an acting capacity' for as long as she serves as First Assistant, until the statutory time limits expire or a permanent officeholder is nominated and confirmed.'
Lawyers say whether the uncertainty helps or hurts clients is a case-by-case matter but for now it's causing chaos.
One attorney, who did not want to be identified, said everyone is trying to figure out what to do.
'I think right now they're building the plane as they're flying it,' the attorney said.
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