In a response late Wednesday to claims that U.S. Attorney General Pam Bondi unlawfully reappointed Alina Habba as acting U.S. Attorney for the District of New Jersey, the DOJ insisted that the situation in no way resembles special counsel Jack Smith”s appointment, which Florida-based U.S. Judge Aileen Cannon invalidated last year in President Donald Trump’s scuttled Espionage Act prosecution.

The DOJ began by saying there’s no reason to throw out a drug-trafficking indictment or otherwise block Habba’s office from prosecuting defendants Julien Giraud Jr. and Julien Giraud III — or any other similarly situated person.

“The Girauds are not entitled to the relief they seek because, at bottom, this is a dispute over titles, not authority,” the government said.

From here, the DOJ said that Habba plainly has the lawful authority to prosecute because Bondi “has the power to delegate that authority to others, including Special Attorneys (like Ms. Habba) and Assistant U.S. Attorneys.”

Near the end of the filing, the DOJ added in a footnote that directly pushed back on the Girauds’ “repeated reliance on United States v. Trump,” namely Jack Smith’s obliterated prosecution of Trump for the allegedly willful retention of national defense information at Mar-a-Lago.

When Cannon, a Trump appointee, threw out the case in July 2024, she wrote that “careful study” led her to the conclusion.

The dismissal came just two weeks after U.S. Supreme Court Justice Clarence Thomas, in his solo concurrence following SCOTUS’ immunity ruling in Trump v. United States, wrote that “[i]f there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” adding that a “private citizen cannot criminally prosecute anyone, let alone a former President.”

Cannon, picking up where Thomas left off, determined that then-U.S. Attorney General Merrick Garland’s appointment of Smith as special counsel violated the Appointments Clause of the Constitution, dooming the prosecution.

“Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no,” Cannon wrote.

The DOJ’s footnote said the Girauds’ citation of that legal issue was simply “misplaced.”

“The district court in that case determined that the Attorney General lacked statutory authority to create a new office, independent of the United States Attorney, and vest it with ‘exceedingly broad’ investigative and prosecutorial powers with ‘virtually no mechanism for supervision or control by the Attorney General,'” the filing said. “Nothing like that occurred here. The office of United States Attorney, and the position of First Assistant U.S. Attorney to which Ms. Habba was lawfully designated, are well established and subject to the plenary authority and control of the Attorney General.”

The DOJ response followed briefs from a New Jersey-based criminal defense lawyer organization and arguments from Giraud Jr.’s legal team that the method of keeping Habba in office past the expiration of her 120-day acting term was an illegal maneuver that threatens due process rights in hundreds of pending cases in the U.S. District Court for the District of New Jersey’s jurisdiction.

Earlier Wednesday, the Association of Criminal Defense Lawyers of New Jersey made the case, while seeking to participate in the case as an amicus curiae or friend of the court, that the DOJ raised an “extreme” legal rationale — one that claimed that even if Habba is illegally serving as acting U.S. attorney she is nonetheless legally authorized, through other statutory means, to supervise the whole U.S. attorney’s office pursuant to her dual status as a “Special Attorney to the United States Attorney General.”

Days earlier, an attorney for defendant Giraud Jr. similarly but distinctly challenged the validity of Habba’s appointment, arguing that the drug-trafficking indictment should either be dismissed or Habba should be blocked from taking further prosecutorial action, as any actions she or her subordinates might take would be “without legal effect.”

On Tuesday, the DOJ responded for the first time that Giraud’s motion was “wrong” and “fails for many reasons.”

Last week, a panel of judges on the New Jersey federal district court voted not to allow Habba to continue beyond her 120 days in an acting capacity and in lieu of her confirmation by the U.S. Senate. Instead, the court wielded its statutory authority and selected Habba’s first assistant Desiree Leigh Grace to lead the U.S. Attorney’s Office.

Bondi then stepped in, fired Grace and claimed “rogue judges” had intruded on the executive prerogatives of Trump, even though Habba’s nomination went nowhere in the U.S. Senate. Under the Constitution, U.S. attorneys serving in a permanent capacity require the advice and consent of the Senate, which occurs through the confirmation process.

In order to keep Habba as acting U.S. attorney, however, Trump pulled her nomination before her acting 120-day stint technically expired. Bondi then reinstalled Habba, a Trump loyalist who served as his private lawyer before her time in government, once more at the top temporarily.

To override the court’s appointment of Grace, Bondi cited the Federal Vacancies Reform Act when naming Habba first assistant in the U.S. attorney’s office. At the same time, just in case anyone questioned that legal authority, Habba was named a “Special Attorney to the United States Attorney General” under the federal judicial vacancies statute.

Chief U.S. District Judge for the Middle District of Pennsylvania Matthew Brann, sitting by designation in the Giraud case after the New Jersey district court’s rejection of Habba, has yet to rule.