Following a decision that potentially weakened the U.S. Senate’s advisory role and effectively nullified a statutory provision allowing a federal court to appoint a chief prosecutor, the DOJ on Tuesday staunchly defended Alina Habba by claiming she assumed the role of acting U.S. Attorney for the District of New Jersey immediately after resigning from the same position—even if one of the legal actions to facilitate this was deemed invalid, it holds no consequence.

Previously, U.S. District Judge Matthew Brann criticized the DOJ for “placing the cart before the horse” by arguing that Habba’s appointment was legitimate, despite ordering briefing from the government and criminal defendants Julien Giraud Jr. and Julien Giraud III, based on the presumption that her reappointment was unlawful.

The Girauds argued for the dismissal of a drug-trafficking indictment, citing Habba’s questionable authority to serve as New Jersey’s top federal prosecutor. Brann determined that such dismissal was unwarranted, as it was unconvincing that an indictment initiated by a different U.S. attorney was “somehow retroactively tainted” by the legality of Habba’s appointment.

Nonetheless, the judge expressed interest in further arguments regarding whether assistant U.S. attorneys under Habba’s supervision, or Habba herself, could be restrained—and essentially compelled to recuse—from continuing prosecutorial actions in the case, a strategy being adopted by other criminal defendants in New Jersey.

U.S. Attorney General Pam Bondi has submitted a supplemental brief asserting that Habba effectively assumed the role of acting U.S. attorney upon resigning from the position, rather than the individual the court “purported to appoint as her successor.”

“The Attorney General’s designation of Ms. Habba as First Assistant became effective immediately ‘upon’ Ms. Habba’s resignation as interim U.S. Attorney. And Ms. Habba’s resignation did not become effective until 5:00 p.m. on July 24, 2025,” the DOJ filing said. “Thus, she was the First Assistant the moment the vacancy arose, which happened before the District Court could exercise its authority under § 546(d) to appoint someone else on July 26.”

Recall that in order to keep Habba as acting U.S. attorney, President Donald Trump pulled her nomination. As DOJ tells it, Habba resigned before her 120-day acting stint technically expired and before her first assistant Desiree Leigh Grace’s appointment by court as U.S. attorney became effective — but even if Grace was effectively appointed by the district court, Trump’s firing of her on July 26 under “clear statutory authority” cleared the way for Habba and confirmed the court appointment was “ineffective.”

With Grace out of the picture and the first assistant position she served vacant as of July 22, Habba was reinstalled to her ousted subordinate’s position under the Federal Vacancies Reform Act on July 24, making her, in effect, the top prosecutor in the office again. At the same time, just in case anyone questioned that legal authority, Habba was named a “Special Attorney to the United States Attorney General” under a federal statute governing the commission of special attorneys, giving her the power to act as a U.S. attorney through another means as the office’s supervisor.

The DOJ’s overall response to the Girauds’ concerns? Heads I win, tails you lose.

“In sum, the statutes that Congress has enacted permit the Attorney General to do what she has done here: appoint Ms. Habba as Special Attorney, designate her as FAUSA [first assistant], and delegate to her the authority to conduct and supervise litigation in the District of New Jersey. There is nothing exceptional about that,” the filing said. “Accordingly, Ms. Habba can continue exercising those functions regardless of whether she is also properly serving as Acting U.S. Attorney.”

In other words, if Grace’s appointment by the court was ineffective, Habba effectively began serving as interim U.S. attorney immediately upon her own resignation on July 24; if Grace’s appointment technically was effective, Trump’s firing of her means she at best served in that role for two days before Habba resumed control on July 26.

“So the Girauds’ fixation on the status of Ms. Habba’s interim appointment as U.S. Attorney is beside the point. Even were they correct—which, to be clear, they are not—that either Ms. Habba was not properly appointed as interim U.S. Attorney or that her appointment expired earlier than the Government maintains, that would at most mean that the individual whom the District Court appointed as interim U.S. Attorney served in that role for a brief period before the President removed her,” the DOJ said. “Ms. Habba, therefore, as First Assistant, became the Acting U.S. Attorney under the FVRA, at the latest, when the President removed the court-appointed interim U.S. Attorney.”