After a criminal defense attorney contended that a loyal supporter of Donald Trump was unlawfully reinstated as acting U.S. attorney for New Jersey due to the DOJ’s so-called “usurpation of judicial authority,” Alina Habba informed a federal judge that there is essentially no issue at hand.

Habba’s submission on Tuesday emphasized that Thomas Mirigliano, representing accused drug trafficker Julien Giraud Jr., is simply frustrated that the Trump administration exercised its executive authority to overrule federal judges who resisted her appointment as her 120-day acting term was nearing its end.

Over the weekend, Giraud Jr.’s defense claimed that Habba’s reappointment was “invalid,” and consequently, any actions by her or her team are “without legal effect.”

In the opening lines of the opposition brief, Habba argued that “the premise” of Giraud’s motion “is wrong” and its assertion that the indictment should be dismissed is a non-sequitur.

The brief further stated that the motion to dismiss “fails for many reasons,” primarily because Habba is “validly serving” after her reappointment under Trump’s authority and the Federal Vacancies Reform Act (FVRA) before her interim term had officially ended.

“While Ms. Habba was still the interim United States Attorney, the Attorney General removed the First Assistant from her position, which the Attorney General could do under 28 U.S.C. § 542(b). Once (a) Ms. Habba resigned as interim United States Attorney, (b) the President withdrew her nomination for that position, and (c) the Attorney General appointed her as First Assistant (exercising authority under §§ 509, 510, 515, and 542(a)), Ms. Habba properly became the Acting United States Attorney under 5 U.S.C. § 3345(a)(1),” the filing said. “Standing Order 2025-03 anticipated as much: By its own terms, the Standing Order’s effective date was as of July 22 or the expiration of Ms. Habbas’s 120-day term, ‘whichever [wa]s later.'”

Even if Habba wasn’t “eligible to serve as the Acting U.S. Attorney,” the DOJ continued, “there would be no basis for dismissing this indictment or prohibiting everyone in the U.S. Attorney’s Office for the District of New Jersey (USAO-NJ) from participating in this prosecution.”

Why? Because Habba was “properly appointed as a Special Attorney to the Attorney General of the United States and directed to supervise the USAO-NJ,” per DOJ.

As Law&Crime reported last week, the U.S. District Court for the District of New Jersey voted not to allow Habba to continue beyond 120 days in an acting capacity and in lieu of her confirmation by the U.S. Senate. Instead, the court wielded its statutory authority, citing 28 U.S. Code § 546(d), and selected Habba’s first assistant Desiree Grace to lead the U.S. Attorney’s Office.

U.S. Attorney General Pam Bondi then promptly fired Grace and claimed “rogue judges” had intruded on the executive prerogatives of Trump. Trump had nominated Habba, his erstwhile attorney and legal spokeswoman, but the would-be U.S. attorney’s appointment stalled in the Senate.

In order to reappoint Habba as acting U.S. attorney, Trump pulled her nomination. Bondi then installed Habba once more at the top temporarily, this time under the FVRA and as a first assistant and as a “Special Attorney to the United States Attorney General” under 28 U.S.C. § 515, just as the DOJ did in the recent case of John Sarcone.

Habba’s opposition brief, submitted by Bondi, Bondi’s chief of staff Chad Mizelle, Habba, and Assistant U.S. Attorney Mark Coyne, attached numerous exhibits, including internal DOJ communications informing Grace that she was fired; the legal authorities invoked to reappoint Habba; and Habba’s resignation — but in name only — letter.

In one sentence, Habba wrote “I hereby resign.” In the next, she wrote: “I look forward to continuing to lead the U.S. Attorney’s Office for the District of New Jersey.”

Alina Habba’s resignation letter (DOJ).

Mirigliano has said that Habba’s reinstallation by these means amounted to “unlawful executive interference” and a “usurpation of judicial authority” to appoint Grace under 28 U.S. Code § 546(d).

“Here, the District Court lawfully appointed Ms. Grace as U.S. Attorney. The judicially authorized appointment of Ms. Grace is thus legally controlling, and the Attorney General’s dismissal of Ms. Grace and reinstatement of Ms. Habba constitutes unlawful executive interference,” the motion continued. “Therefore, Ms. Habba’s subsequent actions and authority, and those of any Assistant U.S. Attorneys acting on her behalf, are ultra vires and without legal effect.”

Mirigliano maintained that the “illegitimacy” of Habba’s appointment means “prosecutorial actions purportedly taken under her authority” are invalid.

Although it was the U.S. District Court for the District of New Jersey that denied Habba a reappointment, and although the jurisdiction for Giraud Jr.’s case is in the Garden State, Chief U.S. District Judge Matthew Brann of the Middle District of Pennsylvania was designated to preside over the case — instead of U.S. District Judge Edward Kiel — in order to avoid an apparent conflict, the court docket showed. Both New Jersey and Pennsylvania are within the 3rd Circuit.

Brann responded by issuing a scheduling order for the government to oppose Giraud’s motion to dismiss the indictment or, short of that, a motion for a declaration that Habba’s reappointment was unlawful and that she or any of her assistant U.S. attorneys were blocked taking “further prosecutorial action.”

A status conference was also scheduled for 3 p.m. on Tuesday.