An organization that exists to support New Jersey criminal defense lawyers wants to weigh in against the Trump administration DOJ’s “extreme” legal position for reinstalling Alina Habba as acting U.S. attorney for the Garden State, claiming hundreds of pending cases are at stake as her authority remains in question.

The letter from the Association of Criminal Defense Lawyers of New Jersey’s (ACDL-NJ) seeking permission to participate in the case of Julien Giraud Jr. as an amicus curiae — Latin for friend of the court — asserted that criminal defendants in the U.S. District Court for the District of New Jersey may be “entitled” to an order from Chief U.S. District Judge Matthew Brann “preventing” Habba “from supervising their cases in any manner” if her appointment is, in fact, “unlawful,” as the accused drug trafficker Giraud’s attorney has claimed.

The DOJ’s cited legal rationale, the lawyers say, is “extreme” and cannot seriously contend that an individual illegally serving as acting U.S. attorney could at the same time be legally authorized to supervise the whole office pursuant to her dual status as a “Special Attorney to the United States Attorney General.”

“Our members collectively represent hundreds of defendants in the District of New Jersey whose cases will be directly affected by the Court’s ruling,” the proposed friend of the court argued. “Our members and their clients have a critical interest in this matter because the government has staked out an extreme position: that even if Ms. Habba’s appointment is invalid under the Constitution or federal statutes, she nonetheless has unfettered power to continue to ‘supervise’ every single one of the hundreds of cases pending in the United States Attorney’s Office for the District of New Jersey.”

“Indeed, if Ms. Habba does not ‘technically qualif[y] as Acting United States Attorney’, then it is unlawful for her to perform the duties of Acting United States Attorney, which indisputably include ‘supervising’ every pending case,” the letter also said, suggesting that the judge may have to adjourn Giraud’s trial until the court makes clear whether or not Habba is legally able to supervise hundreds of pending cases or take “other actions,” like “obtaining new indictments.”

The portion of the Habba filing that ACDL-NJ specifically objected to reads as follows:

Whether or not Ms. Habba technically qualifies as Acting United States Attorney, the Attorney General has validly delegated to her the authority to supervise all pending prosecutions and other matters in the USAO-NJ, subject in turn to the supervision by the Attorney General and Deputy Attorney General, both of whom are Senate-confirmed. Similarly, the Assistant U.S. Attorneys assigned to those matters exercise the Attorney General’s delegated authority subject to her supervision. And there is no basis in any event to disqualify the entire USAO-NJ from those matters.

The filing for leave to participate comes the day after the DOJ and Habba defended the legal maneuvering that kept her in place as acting U.S. attorney despite the U.S. District Court for the District of New Jersey’s recent refusal to reappoint her at the end of a 120-day temporary stint.

As Law&Crime reported last week, the court 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 Trump. Trump had nominated Habba, his former attorney and legal spokeswoman, but the would-be U.S. attorney’s 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 as a first assistant and as a “Special Attorney to the United States Attorney General” under 28 U.S.C. § 515.

Giraud’s defense, for its part, responded by just about immediately challenging the validity of Habba’s appointment in court — insisting that any actions she or her subordinates might take would be “without legal effect.”

Brann, who sits in the Middle District of Pennsylvania, was thereafter designated to preside over the case — instead of New Jersey-based U.S. District Judge Edward Kiel — in order to avoid an apparent conflict, the court docket indicated. Brann followed up by ordering the DOJ’s Tuesday response and holding a status conference the same day.

Read the ACDL-NJ filing here.