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Alina Habba, an attorney for former President Donald Trump, speaks outside at Manhattan criminal court during Trump”s trial in New York, on Monday, April 22, 2024. Opening statements in Trump’s historic hush money trial began Monday. Trump is accused of falsifying internal business records as part of an alleged scheme to bury stories he thought might hurt his presidential campaign in 2016 (Angela Weiss/Pool Photo via AP).
A criminal defense attorney for an accused drug trafficker has asked a federal court to declare that acting U.S. Attorney Alina Habba’s unusual reappointment to the role was “invalid” and, therefore, any action she or her deputies undertake from then on is “without legal effect.”
The filing from Thomas Mirigliano on behalf of Julien Giraud Jr. argued that Trump administration’s efforts to stick it to so-called “rogue” New Jersey federal judges — who declined to extend Habba’s 120-day acting tenure — has the potential to upend numerous criminal cases in the Garden State, including the defendant’s own, as trial nears.
Giraud Jr. and Julien Giraud III were indicted in November 2024 on drug possession and distribution charges. Giraud Jr. allegedly possessed and intended to distribute fentanyl and cocaine while illegally possessing a Taurus Brazil .357 magnum revolver “in furtherance of a drug trafficking crime[.]”
As Law&Crime reported last week, the U.S. District Court for the District of New Jersey 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 President Donald Trump. Trump had nominated Habba, his erstwhile attorney and legal spokeswoman, but the would-be 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 (FVRA) and as a first assistant, sidestepping the needed but not forthcoming advice and consent of the Senate for the permanent gig.
These legal shenanigans, said Giraud Jr.’s attorney, are not mere “irregular procedural maneuvers,” but violative of both the law that judges invoked to appoint Grace and the FVRA.
“Ms. Habba’s re-appointment directly violates the 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,” the motion to dismiss the indictment said. “Ms. Habba’s nomination submission triggered this statutory prohibition. Thus, Ms. Habba’s re-appointment is invalid, and her continued exercise of prosecutorial authority, including supervision of Assistant United States Attorneys and filing of pretrial motions, is ultra vires under the FVRA.”
Ultra vires is Latin for “beyond the powers” or authority, and Mirigliano is asking a judge to declare that Habba’s installation by “unlawful executive interference” and “usurpation of judicial authority” means anything she or her subordinates do is “without legal effect.”
“Here, the District Court lawfully appointed Ms. Grace as U.S. Attorney. The judicially authorized appointment of Ms. Grace is thus legally controlling, and the Attorney General’s dismissal of Ms. Grace and reinstatement of Ms. Habba constitutes unlawful executive interference,” the motion continued. “Therefore, Ms. Habba’s subsequent actions and authority, and those of any Assistant U.S. Attorneys acting on her behalf, are ultra vires and without legal effect.”
After the motion was filed Sunday, the U.S. District Court for the District of New Jersey — the same court that declined to appoint Habba — designated a Middle District of Pennsylvania federal judge to preside over the Girauds’ case in order to avoid an apparent conflict, the court docket shows.
U.S. District Judge Matthew Brann, a Barack Obama appointee, was the jurist who memorably pressed Rudy Giuliani in court on his stolen 2020 election claims. Later, a New York judge found that Giuliani had “engaged in a pattern of misconduct that included intentional misrepresentation and dishonesty,” and ordered up the former NYC mayor and Trump attorney’s disbarment.
Habba, for her part, has said that she’s “ready to rock and roll.”
“They are missing a very important point, which is that the President of the United States picks the United States attorneys,” Habba told YouTuber Benny Johnson over the weekend.
“We are part of the executive branch,” she added. “I’m still the Acting U.S. Attorney. I’m ready to rock and roll and get back to work, which is what this is all supposed to be about. This is just a lot of noise, and it’s unfortunate.”
Habba also pointed out that her job is to “clean up crime.”
Mirigliano argued in his motion that Habba’s appointment could actually lead to the opposite result, suggesting that if Habba is not lawfully appointed, then any criminal defense attorney could follow his lead and zealously advocate for their clients by challenging her “illegitimacy.”
“An indictment, motion, or other filing by an unauthorized prosecutor is void ab initio. Therefore, Ms. Habba’s invalid appointment directly invalidates the prosecutorial actions purportedly taken under her authority, and the United States Attorney’s Office cannot independently assert prosecutorial power absent a validly appointed official,” the filing said.
If the court does not toss the indictment, Giraud Jr.’s lawyer said, it should at least block Habba or any of her assistant U.S. attorneys from “further prosecutorial action.”
“Giraud Jr. has a constitutional right to be prosecuted only by a duly authorized United States Attorney,” the filing concluded. “The illegitimacy of Ms. Habba’s appointment undermines Giraud Jr.’s fundamental due process rights – as well as the due process rights of all similarly situated defendants – necessitating dismissal or immediate injunctive relief.”
