Topline

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.

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submitted to the Senate for confirmation, and the defendants argue it still applies even if the nomination is later withdrawn, as was the case with Habba.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.”

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.

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.

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.