August 15, 2025
Megan Mendoza/The Republic via USA TODAY NETWORK
Congress members urge judge to reject Trump's US attorney pick for New Jersey, arguing the administration's efforts to keep Alina Habba violate federal law. Habba is shown above speaking at Turning Point USA 2023 convention in Phoenix.
A bipartisan group of Congress members has waded into the fight over whether Alina Habba should keep her job as New Jersey's U.S. attorney, arguing that the Trump administration's 'machinations' to keep her in office violate a federal law meant to reinforce the separation of powers required by the Constitution.
The brief filed Wednesday by Democrat Rep. Frank Pallone of New Jersey, four other House Democrats, and a former Republican congressman comes one day before a federal judge in Pennsylvania will hear arguments in a criminal defendant's challenge of Habba's authority.
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Lawyers are expected to square off Friday in Williamsport before U.S. District Judge Matthew Brann over Irvington man Julien Giraud Jr.'s effort to disqualify Habba. Federal judges tried to end Habba's turbulent tenure last month by appointing her top deputy as her successor, but the Trump administration fired that replacement and reinstalled Habba, setting the stage for Friday's showdown in Pennsylvania.
In Wednesday's brief, the Congress members said they aimed to inform Brann of Congress's intent and authority in creating the statutory framework that governs the appointment of U.S. attorneys. Besides Pallone, the other politicians on the brief are Reps. Lloyd Doggett (D-Texas), Stephen Lynch (D-Massachusetts), Bennie Thompson (D-Mississippi), and Nydia Velázquez (D-New York), plus former Rep. Wayne Gilchrest, a Republican who represented Maryland for nine terms until 2009.
The six voted in favor of the Preserving United States Attorney Independence Act, a 2007 law that gives the Senate 120 days to approve a U.S. attorney appointed by the president or attorney general and allows federal judges to appoint someone if the clock runs out with no Senate action.
The law was meant to codify the checks and balances between the executive, legislative, and judicial branches that the Constitution's appointments clause requires, the Congress members noted in the brief. They urged Brann 'not to ratify the Administration's attempt to sidestep the Appointments Clause with respect to Ms. Habba.'
Splitting the responsibility for appointments between the executive and legislative branches acts as a check on favoritism, prevents unfit people from being appointed, and ensures one branch doesn't wield more power than another, they wrote. They quoted James Madison — the fourth U.S. president and an author of the Federalist Papers — to make their point.
'The founders believed that 'the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny,'' the brief reads.
The brief was just the latest in a flurry of filings since the tug-of-war over the U.S. attorney position began earlier this summer.
Brann, an Obama nominee, two weeks ago rejected Giraud's motion to dismiss his case, even as he agreed to hear his arguments that Habba has no authority to prosecute him because her appointment was unconstitutional. Giraud was indicted in November 2024 for various drug and firearm offenses. A second man, Cesar Pina of Franklin Lakes, who is facing federal money laundering and bribery charges, is also challenging Habba's appointment.
The Justice Department argued in a brief this week that Habba's appointment is valid because her post was 'indisputably vacant,' referring to the Trump administration's hasty maneuvering to oust Desiree Leigh Grace — the first assistant U.S. attorney the judges picked — and restore Habba.
That maneuvering relied on widely disputed math.
President Donald Trump named Habba, his former personal attorney, to the job on March 24, but she wasn't sworn in until March 28. That led to disagreement over when her 120 days in office were up.
The timing matters, because the judges named Grace to the post on July 22 — 120 days after March 24. But the Trump administration insists Habba's 120 days weren't up until July 26, and during those extra four days, administration officials fired Grace, Habba resigned, and Attorney General Pamela Bondi named Habba first assistant U.S. attorney. Under the Federal Vacancies Reform Act, the first assistant can serve as acting U.S. attorney for 210 days. That maneuvering essentially restarted the clock for Habba's time in the job.
Administration officials have denied critics' complaints that such maneuvering was an unconstitutional 'workaround.'
Habba has drawn widespread criticism during her stint in the job, most rooted in her prosecutions of Newark Mayor Ras Baraka and U.S. Rep. LaMonica McIver, both Democrats whose arrests stemmed from their May visit to an immigrant jail in Newark. Her office has reportedly subpoenaed Gov. Phil Murphy, also a Democrat, over comments he made in February that suggested he might hide an undocumented immigrant in his home.
New Jersey's senators, Cory Booker and Andy Kim, both Democrats, had objected to Habba taking the job permanently, accusing her of using the office to pursue 'frivolous and politically motivated prosecutions.'
New Jersey Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence T. McDonald for questions: info@newjerseymonitor.com.
