Judge Says Alina Habba Holds U.S. Attorney Post Illegally

Brann said Habba's interim appointment ended July 1, which is 120 days after Attorney General Pam Bondi invoked her power under section 546(a) by appointing John Giordano Interim United States Attorney on March 3.

Alina Habba is holding the position of U.S. Attorney for New Jersey illegally, a judge has ruled in a challenge brought by three criminal defendants.
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Habba has been leading the U.S. Attorney's Office without lawful authority since July 1, when her interim appointment ended, said Matthew W. Brann, Chief U.S. District Judge for the Middle District of Pennsylvania. Her actions since that point may be declared void, including her indictment of Cesar Humberto Pina, although that fact does not warrant his dismissal, Brann ruled.

And because Habba is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases, Brann found.

Brann said Habba's interim appointment ended July 1, which is 120 days after Attorney General Pam Bondi invoked power under Section 546(a) by appointing John Giordano Interim U.S. Attorney on March 3.

The judge's ruling on Thursday is the latest development in a story that took a surprise turn when three criminal defendants who were awaiting trials filed motions claiming Habba's most recent reappointment violated the Federal Vacancies Reform Act, or 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.

As for the criminal defendants who found themselves at the center of Habba's appointment controversy, Brann also granted the motion by Pina, Julien Giraud Jr. and Julien Giraud III to disqualify Habba from prosecuting them and supervising their criminal cases.

The judge denied Pina's motion to dismiss his indictment.

New York attorney Thomas Mirgliano, who represented the Giraud defendants, could not be reached for comment late Thursday after the ruling was issued.

Pina was represented by Abbe Lowell of Washington and Gerald Krovatin of Krovatin Nau in Newark.

“Prosecutors wield enormous power, and with that comes the responsibility to ensure they are qualified and properly appointed. We challenged the authority of Alina Habba because her appointment ignored the rules that give legitimacy to the U.S. Attorney’s office. We appreciate the thoroughness of the court’s opinion, and its decision underscores that this administration cannot circumvent the congressionally mandated process for confirming U.S. Attorney appointments," Lowell and Krovatin said in a statement.

The Department of Justice and the U.S. Attorney's Office did not respond to requests for comment about the ruling. The government is widely expected to appeal the ruling.
"This judge has ruled that [Habba] has been illegally in this position for some time now, and that she does not have the ability to or the authority to supervise or be involved with prosecutions for the District of New Jersey. Unless this is reversed on appeal, she is out," said Jacob Elberg, a professor at Seton Hall University School of Law and a former assistant U.S. attorney.

The ruling says the indictment still stands for Pina, who was indicted under Habba's tenure as U.S. Attorney. If Habba remains in office, the ruling says that she is disqualified and anyone who prosecutes under her supervision or authority would be subject to disqualification, Elberg said.

If the Trump administration takes an appeal of Brann's ruling, it remains to be seen whether it will allow Habba to stay in her position,

"For an administration that that claims to prioritize law enforcement, you have to wonder at what point they will say this is too much and too long an impact on the justice system and need to just move on," Elberg said.

The uncertainty over the office leadership is sure to have a major impact on its daily operations, he said.

"Lots of things have been placed on hold because of uncertainty about exactly this, the potential that you've got somebody claiming to be in charge, who's not legally there, and because of the potential implications of that for cases, there are things that have really not been moving the way the government would want them to," Elberg said. "And so there's a structural problem with the situation, and then there's also a morale problem.