Lawyer questions Alina Habba's legitimacy as US attorney
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Alina Habba, a lawyer representing former President Donald Trump, made a public appearance outside the Manhattan criminal court during Trump’s trial in New York on April 22, 2024. The opening statements in Trump’s significant hush money trial began that Monday. He is charged with falsifying internal business documents as part of an alleged plan to suppress stories that could have negatively impacted his 2016 presidential campaign (Angela Weiss/Pool Photo via AP).

A defense lawyer for a suspected drug dealer has requested a federal court to rule that Alina Habba’s unusual reappointment as the acting U.S. Attorney is “invalid.” The lawyer contends that any actions she or her team might take from that reappointment should be considered “without legal effect.”

The legal challenge brought by Thomas Mirigliano on behalf of Julien Giraud Jr. claims that the Trump administration’s attempt to counteract “rogue” federal judges in New Jersey—who did not extend Habba’s 120-day acting term—could disrupt numerous criminal proceedings in New Jersey, including his client’s, as the trial date approaches.

Giraud Jr. and Julien Giraud III were indicted in November 2024 on drug possession and distribution charges. Giraud Jr. allegedly possessed and intended to distribute fentanyl and cocaine while illegally possessing a Taurus Brazil .357 magnum revolver “in furtherance of a drug trafficking crime[.]”

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 President Donald Trump. Trump had nominated Habba, his erstwhile attorney and legal spokeswoman, but the would-be 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 Federal Vacancies Reform Act (FVRA) and as a first assistant, sidestepping the needed but not forthcoming advice and consent of the Senate for the permanent gig.

These legal shenanigans, said Giraud Jr.’s attorney, are not mere “irregular procedural maneuvers,” but violative of both the law that judges invoked to appoint Grace and the FVRA.

“Ms. Habba’s re-appointment directly violates the FVRA, which explicitly prohibits individuals whose nominations have been submitted to the Senate from serving in an acting capacity for the same office, regardless of subsequent withdrawal of the nomination,” the motion to dismiss the indictment said. “Ms. Habba’s nomination submission triggered this statutory prohibition. Thus, Ms. Habba’s re-appointment is invalid, and her continued exercise of prosecutorial authority, including supervision of Assistant United States Attorneys and filing of pretrial motions, is ultra vires under the FVRA.”

Ultra vires is Latin for “beyond the powers” or authority, and Mirigliano is asking a judge to declare that Habba’s installation by “unlawful executive interference” and “usurpation of judicial authority” means anything she or her subordinates do is “without legal effect.”

“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.”

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