An organization aimed at supporting New Jersey criminal defense lawyers wants to challenge the Trump administration DOJ’s “extreme” legal stance on reinstating Alina Habba as acting U.S. attorney for the Garden State. They argue that her questionable authority endangers hundreds of pending cases.

The letter from the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) seeks permission to be involved in the case of Julien Giraud Jr. as an amicus curiae — Latin for friend of the court — claiming that criminal defendants in the U.S. District Court for the District of New Jersey may be “entitled” to an order from Chief U.S. District Judge Matthew Brann “preventing” Habba from supervising their cases if her appointment is “unlawful,” as the accused drug trafficker Giraud’s lawyer has suggested.

The DOJ’s cited legal rationale, argue the lawyers, is “extreme,” claiming it is untenable for someone serving illegally as acting U.S. attorney to be authorized to oversee the office under her dual role as a “Special Attorney to the United States Attorney General.”

“Our members collectively represent hundreds of defendants in the District of New Jersey whose cases will be directly influenced by the Court’s decision,” the proposed friend of the court stated. “Our members and their clients have a vital stake in this matter because the government has assumed an extreme position: that even if Ms. Habba’s appointment is invalid under the Constitution or federal statutes, she still possesses unfettered authority to continue to ‘supervise’ each of the hundreds of cases pending in the United States Attorney’s Office for the District of New Jersey.”

“Indeed, if Ms. Habba does not ‘technically qualify as Acting United States Attorney’, it is unlawful for her to perform the duties of Acting United States Attorney, which certainly include ‘supervising’ all pending cases,” the letter stated, indicating that the judge might need to postpone Giraud’s trial until a clear determination is made about whether Habba can legally oversee hundreds of cases or take other actions like “obtaining new indictments.”

The portion of the Habba filing that ACDL-NJ specifically objected to reads as follows:

Whether or not Ms. Habba technically qualifies as Acting United States Attorney, the Attorney General has validly delegated to her the authority to supervise all pending prosecutions and other matters in the USAO-NJ, subject in turn to the supervision by the Attorney General and Deputy Attorney General, both of whom are Senate-confirmed. Similarly, the Assistant U.S. Attorneys assigned to those matters exercise the Attorney General’s delegated authority subject to her supervision. And there is no basis in any event to disqualify the entire USAO-NJ from those matters.

The filing for leave to participate comes the day after the DOJ and Habba defended the legal maneuvering that kept her in place as acting U.S. attorney despite the U.S. District Court for the District of New Jersey’s recent refusal to reappoint her at the end of a 120-day temporary stint.

As Law&Crime reported last week, the court 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 former 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 Federal Vacancies Reform Act as a first assistant and as a “Special Attorney to the United States Attorney General” under 28 U.S.C. § 515.

Giraud’s defense, for its part, responded by just about immediately challenging the validity of Habba’s appointment in court — insisting that any actions she or her subordinates might take would be “without legal effect.”

Brann, who sits in the Middle District of Pennsylvania, was thereafter designated to preside over the case — instead of New Jersey-based U.S. District Judge Edward Kiel — in order to avoid an apparent conflict, the court docket indicated. Brann followed up by ordering the DOJ’s Tuesday response and holding a status conference the same day.

Read the ACDL-NJ filing here.