August 01, 2025
Julia Demaree Nikhinson/Pool via Imagn Images
A Justice Department filing argues Alina Habba was properly reappointed as New Jersey's acting U.S. attorney despite statutory barriers and judicial opposition. This file photo show Habba at the President Donald Trump's inauguration on Jan. 20, 2025.
The Department of Justice in a new court filing argues that acting U.S. Attorney Alina Habba was properly appointed because the administration fired the deputy selected by judges to replace Habba before their order could go into effect.
The administration's Tuesday filing is the latest step in the Trump administration's attempt to keep in place a controversial prosecutorial nominee who faces statutory barriers to remaining in office and whose nomination has yet to win approval by the Senate Judiciary Committee, let alone by the full chamber.
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The filing comes five days after Habba, facing a statutory deadline, resigned as U.S. attorney and was named first assistant U.S. attorney, a Trump administration maneuver to keep her in the post. The administration says that because the U.S. attorney post was vacant, Habba immediately assumed the role.
"Ms. Habba is validly serving as the Acting United States Attorney. The Attorney General properly appointed her as the First Assistant United States Attorney; the First Assistant can serve as the Acting United States Attorney under the Federal Vacancies Reform Act when that office is vacant," Department of Justice attorneys wrote.
Habba's reappointment is the focus of a claim by an Irvington man facing drug and gun charges. The man, Julien Giraud, on Sunday asked the court to bar his prosecution, arguing that her reappointment violates federal statutes and allowing her to supervise his case would infringe on his due process rights.
Habba's road to becoming New Jersey's acting U.S. attorney was winding.
She was originally installed as interim U.S. Attorney on March 28, starting a 120-day clock that ended July 26. Trump nominated her for U.S. Senate confirmation on June 30.
Her tenure has included a rebuke from a federal judge over swiftly dropped criminal charges against Newark Mayor Ras Baraka, a Democrat, that spurred a malicious prosecution lawsuit filed by Baraka. She also faced criticism for telling a right-wing podcast host that she would use her office to "turn New Jersey red."
New Jersey's District Court judges met last Tuesday to select her successor — as called for by federal law — and chose her deputy, Desiree Grace, instead of Habba. The administration then launched a game of musical chairs.
Attorney General Pam Bondi fired Grace, and Trump withdrew Habba's nomination from Senate consideration. Habba resigned as U.S. attorney, and Bondi immediately named her a special attorney and authorized her to "conduct in the District of New Jersey any kind of legal proceedings, civil or criminal."
At the same time, Bondi designated her as the district's first assistant U.S. attorney, triggering a separate law that elevates top deputies to lead the office in an acting capacity for up to 210 days, with the chance of longer tenures.
Giraud's argument — which is being heard in Pennsylvania to avoid any conflict with the New Jersey judges who chose to replace Habba — poses two major challenges for the administration.
One appointment statute bars first assistants from being elevated to acting heads if they did not hold the first assistant position for at least 90 days in the year preceding the creation of a vacancy. Habba first held the position on July 24, more than 200 days after Philip Sellinger, the state's last Senate-confirmed U.S. attorney, resigned. The administration's Tuesday filing does not address that argument other than to say "Habba did not previously serve as the first assistant."
The other barrier is Habba's former status as a U.S. attorney nominee. The same statute bars individuals from being elevated if "the President submits a nomination of such person to the Senate for appointment to such office." Government attorneys argue that no longer applies to Habba because her nomination was withdrawn. The statute does not say the prohibition ends.
"A lifetime ban of that sort would have no logical relationship to the distinct separation-of-powers problem that Congress sought to address in [the statute]," the administration argued.
Giraud's filing challenging Habba's appointment has already disrupted criminal prosecutions in New Jersey. More discord could be on the horizon.
Unlike rank-and-file prosecutors and others employed in U.S. attorney offices, assistant U.S. attorneys — including first assistants — are legally direct subordinates of the U.S. attorney general. In other words, though a U.S. attorney may supervise them day-to-day, their prosecutorial power flows from the attorney general.
That means the office could be allowed to continue operations under the supervision of assistant U.S. attorneys even if the court finds Habba's reappointment was improper.
The administration argues supervision would still fall to Habba in that case because Bondi appointed Habba as a special attorney and delegated to her the authority to supervise all pending prosecutions in the District of New Jersey.
"Regardless of whether Ms. Habba technically qualifies as Acting United States Attorney, she could supervise this case pursuant to her direct delegation of authority from the Attorney General," government lawyers argued in Tuesday's filing.
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.
