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Yahoo
2 days ago
- Politics
- Yahoo
Another Trump clash with the courts is already spinning out into criminal cases
The clash between the Trump administration and the courts over who is leading the U.S. Attorney's Office in New Jersey is already spilling into criminal cases. A defense attorney is trying to get charges against his client thrown out by arguing the Trump administration illegally maneuvered to keep Alina Habba as the state's top federal prosecutor, despite the expiration of her 120-day tenure. The defense filing, made on Sunday, comes after days of confusion over who is leading the office because of complex and contested rules over filling vacancies. In the motion, on behalf of a defendant in a drug and gun-related case, attorney Thomas Mirigliano said a workaround Trump officials found to keep Habba was 'irregular' and unconstitutional. In a nine-page filing, Mirigliano said his client is 'facing an imminent criminal trial proceeding under questionable legal authority' and asked for the charges to be thrown out or that Habba and her assistants be barred from exercising further prosecutorial powers in the case. The problems for the U.S. Attorney's Office could grow if other defense attorneys open a flood gate of similar motions. Even if Habba eventually prevailed against legal challenges to her authority as acting U.S. Attorney, there could be months of uncertainty over whether the office's criminal cases — some 1,500 a year — could be thrown out or otherwise undermined. Mirigliano argued that Desiree Leigh Grace — a career prosecutor whom New Jersey district court judges picked last week to replace Habba — is the rightful interim U.S. attorney. Grace, a registered Republican, said last week she planned to take the job even after Attorney General Pam Bondi fired her. Then, on Thursday, the Trump administration revealed a multi-step maneuver to keep Habba on the job. Mirigliano said the Trump administration's decision to workaround Grace's appointment represents an 'unconstitutional executive usurpation of judicial authority.' 'I got the idea over the weekend because my trial was imminent and I thought it was an important issue that needed to be litigated,' he said in an interview. Mirigliano told POLITICO that a previously scheduled hearing on Monday was cut short because of the motion, which is now being handed off to another judge. Mirigliano originally filed the motion with U.S. District Judge Edward Kiel, the Biden appointee overseeing the criminal case, but on Monday the 3rd Circuit Court of Appeals transferred the case to Chief Judge Matthew Brann of the Middle District of Pennsylvania in an order that declared 'it is in the public interest to do so.' Brann, based in Williamsport, is an Obama appointee who in 2020 eviscerated President Donald Trump's attempt to throw out millions of votes in the Keystone State, dismissing his campaign's lawsuit with a withering opinion that described a dearth of proof to justify the drastic demand. Presumably, Kiel was among the judges who voted on whether to appoint Grace to replace Habba. Grace's departure is causing other problems for the office. She was the counsel of record in several dozen active criminal and civil cases, according to federal court records. In the past few days, prosecutors asked to delay at least one case — involving a triple homicide — because Grace was the lead prosecutor, according to a Monday filing by a defense attorney. Prosecutors once thought about making it a death penalty case. Now a defense attorney is asking her clients — who are detained pending trial — to be released until the government is ready. The defense attorney who filed the motion, Brooke Barnett, called the delay request a problem of the Department of Justice's own making and suggested top department officials should come handle the case themselves. 'I would invite Alina Habba and Pam Bondi, if they wish, so they can try their case,' Barnett said in an interview. 'It's their doing, it's their political doing.' Judges have not yet commented on the conflict between Grace and Habba. Grace has only publicly commented on LinkedIn and has not said anything about whether she would challenge Habba's control of the office. A spokesperson for Habba declined to comment on the recent legal filing disputing her authority, but last week, Habba said the judges 'preempted and struck out' when they tried to replace her. There's little precedent for a dispute over the rightful U.S. attorney. However, a similar fight erupted in the 1990s — and the courts ruled that criminal cases could advance, even amid the uncertainty. At the time, Puerto Rico's U.S. attorney Guillermo Gil — appointed by judges to an indefinite term that stretched more than six years — faced increasing challenges from defendants who said his appointment was unconstitutional. Despite multiple challenges, only one district judge agreed that Gil had been unlawfully serving in the position. But the 1st Circuit Court of Appeals overturned the ruling, saying that despite the cloud over the U.S. attorney's position, the office could continue to function through the work of assistant U.S. attorneys. That's because those prosecutors derive their authority straight from the attorney general, the court found. 'AUSAs are themselves representatives of the government,' the three-judge panel ruled. 'Because they are appointed directly by the Attorney General … their ability to act does not hinge on the authority of the local United States Attorney.' Solve the daily Crossword
Forbes
2 days ago
- Politics
- Forbes
Trump Attorney Alina Habba Stays On As U.S. Attorney—And Already Sparks Legal Challenge
Former Trump defense attorney Alina Habba continues to serve as U.S. Attorney in New Jersey after the Justice Department used a little-known legal maneuver to keep her in the role after federal judges voted to replace her—which is already sparking a legal crisis, as criminal defendants seek to use the leadership scuffle to challenge their indictments. Alina Habba speaks to reporters outside Manhattan Criminal Courthouse on May 30, 2024 in New York ... More City. (Photo by James Devaney/GC Images) GC Images Habba has been designated as the Acting U.S. Attorney in New Jersey, the agency confirmed to Forbes in an email, after she previously served as the interim U.S. Attorney in the state. Habba's term as the interim U.S. attorney expired this week, and since the Senate never voted to confirm her, it was up to federal judges in the state to vote to extend her term—which they declined to do, instead appointing her deputy Desiree Leigh Grace to fill the role on Tuesday. The Trump administration then fired Grace from the DOJ hours later, leaving it initially up in the air as to what would happen once Habba's term formally expired on Friday, before Habba and the DOJ confirmed she would stay in the role, with Habba tweeting, 'I am now the Acting United States Attorney for the District of New Jersey.' While the DOJ hasn't responded to questions over how specifically Habba was appointed, an agency official cited by Politico suggested the government used a provision of federal law that allows the DOJ to appoint Habba into the number two role at the U.S. attorney's office, but then promote her to Acting U.S. Attorney because there's no one else filling that role. The Trump administration also formally withdrew Habba's nomination as the permanent U.S. attorney, which takes her out of consideration to be voted on by the Senate, but allows her to be appointed to the role in an acting capacity. Her authority is now being challenged in court, however, as two criminal defendants in New Jersey who were indicted on drug trafficking charges filed motions over the weekend asking for the indictment against them to be dismissed based on the power struggle, arguing Habba was not lawfully allowed to keep serving as U.S. attorney and can't be allowed to continue prosecuting them. The criminal defendants, Julien Giraud Jr. and Julien Giraud III, argue Habba cannot prosecute them because her being named acting U.S. Attorney violates the Federal Vacancies Reform Act. That law blocks anyone from being named to a role in an acting capacity if their nomination has also been submitted to the Senate for confirmation, and the defendants argue it still applies even if the nomination is later withdrawn, as was the case with Habba. As a result, Habba continuing to prosecute the defendants without being lawfully appointed violates their due process rights, the Girauds argue, asking the court to either dismiss the indictment against them or bar Habba 'from exercising further prosecutorial powers in this matter.' What To Watch For The New Jersey U.S. Attorney's office has not yet responded to a request for comment on the Giraud's challenge to Habba's power, and has not responded to it yet in court. It remains to be seen what could happen in the dispute, and whether more criminal defendants will similarly follow with efforts to challenge Habba's authority. Should Habba be allowed to keep serving in the role, the federal law that the DOJ likely used to re-install Habba as U.S. Attorney allows her to serve for 210 days, and it remains unclear what could happen after that point, since she's unlikely to be confirmed by the Senate. Habba was previously only allowed to serve for 120 days as U.S. attorney, and when her term expired without the Senate confirming her or judges voting to keep her in place, she was ineligible to simply be appointed to the role again without getting Senate confirmation. As a result, the Trump administration likely used the Federal Vacancies Reform Act in order to keep Habba in her role, legal experts speculate. That federal law has a provision saying that if there's a vacancy in a role that requires Senate confirmation, like U.S. attorneys, 'the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.' While the DOJ has not confirmed this was the case, it's expected the DOJ named Habba to be the first assistant at the U.S. attorney's office and then promoted her to the U.S. Attorney role under the FVRA, since the top role was vacant. That's what the Trump administration previously did in the Northern District of New York after judges there declined to extend U.S. Attorney John Sarcone III's term. Georgetown University law professor Steven Vladeck noted about Sarcone's case that such maneuvering would likely be legal, writing prior to Habba's re-appointment, 'It's a stretch, but one that I do believe the law allows.' It remains to be seen how the legality of Habba's appointment will play out, given the issues the Girauds raised about her appointment under the FVRA, but Politico notes that courts have previously been deferential to U.S. attorneys whose authority has been challenged, ruling in favor of a U.S. attorney in Puerto Rico whose term stretched on indefinitely. What About Desiree Leigh Grace? Grace is an experienced prosecutor whom New Jersey judges formally appointed to replace Habba as U.S. attorney. While the DOJ's decision Tuesday to fire her meant she had to immediately step down as Habba's first assistant and leave the DOJ entirely, there had been some ambiguity about whether she still had legal grounds to become the U.S. attorney when Habba's term expired on Friday. Even though Grace was fired from the DOJ, federal judges are allowed to appoint someone from outside the agency to serve as U.S. attorney, Politico noted, suggesting the prosecutor could potentially rejoin the agency to serve in the role. Grace—whom The New York Times notes is a registered Republican—suggested in a social media post she was considering doing just that, writing, 'It will forever be the greatest honor that [the judges] selected me on merit, and I'm prepared to follow that order and begin to serve in accordance with the law,' as quoted by the New Jersey Globe. That was before Habba was named as the Acting U.S. Attorney, however, and it does not appear that Grace attempted to assume the role on Saturday. It remains to be seen if she could take any legal action to challenge Habba replacing her, though she hasn't given any indication yet that she will. Key Background Habba's appointment as U.S. attorney came after the lawyer had become known as one of Trump's most ardent defenders, serving as one of the president's personal defense attorneys from 2021 through his inauguration. She represented Trump in such high-profile cases as the civil fraud trial against him and his company and writer E. Jean Carroll's defamation case against him, though she did not work on his criminal cases and had no prosecutorial experience prior to being named U.S. attorney. Habba also became a frequent Trump advocate through television appearances and on social media, and appeared at such events as the Republican National Convention and CPAC. She was named as U.S. attorney in March after initially serving as an advisor to Trump, and is one of several former Trump defense attorneys that garnered high-ranking roles in his second administration, along with Deputy Attorney General Todd Blanche, Solicitor General Dean John Sauer and Principal Associate Deputy Attorney General Emil Bove, whom Trump is also trying to appoint as a federal judge. Further Reading Forbes The Alina Habba Saga Explained: How Trump May Get Her Back In Power—But Not As U.S. Attorney By Alison Durkee Forbes DOJ Fires Alina Habba's Replacement As U.S. Attorney Hours After Ouster By Alison Durkee
Forbes
5 days ago
- Politics
- Forbes
Trump Attorney Alina Habba Stays On As U.S. Attorney Despite Judges Replacing Her—Here's How
The Justice Department confirmed Friday that former Trump defense attorney Alina Habba will keep serving as U.S. Attorney in New Jersey, seemingly using a little-known legal maneuver to keep her in the role after federal judges voted to replace the staunch Trump ally earlier this week—though there still could be a conflict over her authority. Alina Habba speaks to reporters outside Manhattan Criminal Courthouse on May 30, 2024 in New York ... More City. (Photo by James Devaney/GC Images) GC Images Habba has been designated as the Acting U.S. Attorney in New Jersey, the agency confirmed to Forbes in an email, after she previously served as the interim U.S. Attorney in the state. Habba's term as the interim U.S. attorney expired this week, and since the Senate never voted to confirm her, it was up to federal judges in the state to vote to extend her term—which they declined to do, instead appointing her deputy Desiree Leigh Grace to fill the role on Tuesday. The Trump administration then fired Grace from the DOJ hours later, leaving it up in the air as to what would happen once Habba's term formally expired on Friday. Habba suggested Thursday she would remain in the role—tweeting, 'I am now the Acting United States Attorney for the District of New Jersey'—which the DOJ confirmed Friday. While the DOJ hasn't responded to questions over how specifically Habba was appointed, an agency official cited by Politico suggested the government used a provision of federal law that allows the DOJ to appoint Habba into the number two role at the U.S. attorney's office, but then promote her to Acting U.S. Attorney because there's no one else filling that role. The Trump administration also formally withdrew Habba's nomination as the permanent U.S. attorney, which takes her out of consideration to be voted on by the Senate, but allows her to be appointed to the role in an acting capacity. The federal law that the DOJ likely used to re-install Habba as U.S. Attorney allows her to serve for 210 days, and it remains unclear what could happen after that point, since she's unlikely to be confirmed by the Senate. How Was Alina Habba Allowed To Keep Serving As U.s. Attorney? Habba was previously only allowed to serve for 120 days as U.S. attorney, and when her term expired without the Senate confirming her or judges voting to keep her in place, she was ineligible to simply be appointed to the role again without getting Senate confirmation. As a result, the Trump administration likely used the Federal Vacancies Reform Act in order to keep Habba in her role, legal experts speculate. That federal law has a provision saying that if there's a vacancy in a role that requires Senate confirmation, like U.S. attorneys, 'the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.' While the DOJ has not confirmed this was the case, it's expected the DOJ named Habba to be the first assistant at the U.S. attorney's office and then promoted her to the U.S. Attorney role under the FVRA, since the top role was vacant. That's what the Trump administration previously did in the Northern District of New York after judges there declined to extend U.S. Attorney John Sarcone III's term. Georgetown University law professor Steven Vladeck noted prior to Habba's re-appointment that such maneuvering would likely be legal, writing, 'It's a stretch, but one that I do believe the law allows.' Grace is an experienced prosecutor whom New Jersey judges formally appointed to replace Habba as U.S. attorney. While the DOJ's decision Tuesday to fire her meant she had to immediately step down as Habba's first assistant and leave the DOJ entirely, there had been some ambiguity about whether she still had legal grounds to become the U.S. attorney when Habba's term expired on Friday. Even though Grace was fired from the DOJ, federal judges are allowed to appoint someone from outside the agency to serve as U.S. attorney, Politico noted, suggesting the prosecutor could potentially rejoin the agency to serve in the role. Grace—whom The New York Times notes is a registered Republican—suggested in a social media post she was considering doing just that, writing, 'It will forever be the greatest honor that [the judges] selected me on merit, and I'm prepared to follow that order and begin to serve in accordance with the law,' as quoted by the New Jersey Globe. That was before Habba was named as the Acting U.S. Attorney, however, and it remains unclear if Grace will now step aside in response to that, or if she could try to still lay claim to the role through a potential legal battle. Even if Grace were allowed to become U.S. Attorney, her tenure would likely be short-lived, however, as President Donald Trump could simply fire her and promote Habba again. Key Background Habba's appointment as U.S. attorney came after the lawyer had become known as one of Trump's most ardent defenders, serving as one of the president's personal defense attorneys from 2021 through his inauguration. She represented Trump in such high-profile cases as the civil fraud trial against him and his company and writer E. Jean Carroll's defamation case against him, though she did not work on his criminal cases and had no prosecutorial experience prior to being named U.S. attorney. Habba also became a frequent Trump advocate through television appearances and on social media, and appeared at such events as the Republican National Convention and CPAC. She was named as U.S. attorney in March after initially serving as an advisor to Trump, and is one of several former Trump defense attorneys that garnered high-ranking roles in his second administration, along with Deputy Attorney General Todd Blanche, Solicitor General Dean John Sauer and Principal Associate Deputy Attorney General Emil Bove, whom Trump is also trying to appoint as a federal judge. Further Reading Forbes The Alina Habba Saga Explained: How Trump May Get Her Back In Power—But Not As U.S. Attorney By Alison Durkee Forbes DOJ Fires Alina Habba's Replacement As U.S. Attorney Hours After Ouster By Alison Durkee
Yahoo
5 days ago
- Politics
- Yahoo
Trump's gambit to keep Alina Habba in charge in New Jersey: Withdraw her nomination
The Trump administration believes it has found a workaround to keep the president's former personal lawyer Alina Habba as New Jersey's U.S. Attorney and outflank federal judges who sought to replace her. It's the latest move by the administration to put an ally of the president in a top law enforcement role and appears to circumvent the traditional role of the Senate in approving key administration officials. As part of the gambit, a Justice Department official described a process that involves President Donald Trump withdrawing Habba's nomination to permanently take the post. Then, Attorney General Pam Bondi would appoint Habba as First Assistant U.S. Attorney — typically the second-ranking official in the office. Because the U.S. attorney's post is vacant, Habba would automatically fill the role on a temporary basis; she can't simultaneously be the president's nominee and serve as acting in this way. The multi-step maneuver came as Habba — who has been leading the New Jersey U.S. attorney's office on an interim basis since March — was approaching a Friday deadline to depart the post. That deadline triggered a little-used provision of law allowing the federal district court judges in New Jersey to appoint a successor until Trump could get a permanent U.S. attorney confirmed by the Senate. The judges earlier this week selected Desiree Leigh Grace, a longtime career prosecutor, to succeed Habba, infuriating Justice Department leaders who had hoped to keep Habba — a Trump loyalist — in the position. In a social media post Thursday evening, Habba said, 'Donald J. Trump is the 47th President. Pam Bondi is the Attorney General. And I am now the Acting United States Attorney for the District of New Jersey.' Habba is perhaps uniquely controversial because of her close ties to the president before taking office and her actions after — she led an aborted prosecution of Newark Mayor Ras Baraka, the indictment of Rep. LaMonica McIver and an investigation of Gov. Phil Murphy, all Democrats. Habba had no experience as a prosecutor until Trump installed her as the interim U.S. attorney. Trump allies in the DOJ have said the judges have gone 'rogue' and are seeking to 'threaten' Trump's power to select prosecutors. That power, though, is tempered by requirements that presidential picks must be confirmed by the Senate. Now, a person close to the department who was granted anonymity to discuss a fluid subject said it's possible the judges, most of them nominated by Democratic presidents, could face further scrutiny from the Trump administration. After the judges' order selecting Grace on Tuesday, Attorney General Pam Bondi fired Grace before she could take the acting U.S. Attorney job. Despite that, Grace still planned to take the job when Habba left, which was expected at the end of this week. In a LinkedIn post on Wednesday, Grace said she planned to assume the role of interim U.S. Attorney at the request of the judges. The New Jersey District Court did not immediately respond to a request for comment. Madison Fernandez contributed to this report.
Yahoo
5 days ago
- Politics
- Yahoo
Habba set to remain as top prosecutor in New Jersey after White House maneuver
President Donald Trump's attempt to ensure his pick remains in charge of the U.S. Attorney's Office in New Jersey has taken a new twist. On Thursday, one day before Alina Habba's tenure as the Interim United States Attorney for the District of New Jersey was set to expire, the White House withdrew her nomination for the post. MORE: DOJ fires US attorney for New Jersey after state picks her over former Trump lawyer Alina Habba Habba then announced on social media that she is now the Acting United States Attorney, seemingly restarting the clock on what is usually a 120-day temporary term. Trump first appointed Habba as the state's interim U.S. attorney in March. "I don't cower to pressure. I don't answer to politics. This is a fight for justice. And I'm all in," Habba wrote on social media. The unorthodox legal maneuver appears to end a stalemate that began when federal judges in New Jersey selected Desiree Leigh Grace, an experienced federal prosecutor, over Habba, the president's former personal attorney and choice to lead the office. The Department of Justice quickly stated that it fired Grace, leaving unclear who would take over the office. In a social media post, Grace stated that she would still be willing to lead the office "in accordance with the law." "The District Judges for the District of New Jersey selected me to serve as the United States Attorney for the District of New Jersey. It will forever be the greatest honor that they selected me on merit, and I'm prepared to follow that Order and begin to serve in accordance with the law," she wrote. The Trump administration's move to pull Habba's nomination and then install her in an acting capacity appears to take advantage of a section of the Federal Vacancies Reform Act, which allows an acting officer to serve in a position for no more than 210 days if no one is nominated to the position.
