'Unconstitutional': Attorney says Trump's hand-picked prosecutor has no 'legal authority'

28 July

Trump attorney Alina Habba on March 21, 2023 (Image: Shutterstock)

The lawyer for a defendant being prosecuted by the Department of Justice (DOJ) in New Jersey is now claiming that President Donald Trump's chosen U.S. attorney for the state has no power to prosecute the case.

Axios reported Monday that attorney Thomas Mirigliano is suing the government over Alina Habba — one of Trump's former personal attorneys — continuing to serve as the acting U.S. Attorney for the District of New Jersey. Mirigliano said that because federal judges did not agree to keep Habba on after her 120-day window as interim U.S. attorney had expired earlier this month, she has "questionable legal authority" to continue serving as the DOJ's point person on the case.

"By circumventing the constitutionally mandated appointment procedures, and encroaching upon judicial powers explicitly granted by statute, the executive branch has exceeded its lawful authority," Mirigliano wrote in his complaint. He further argued that Habba staying on as prosecutor "would endorse an unconstitutional executive usurpation of judicial authority."

Because judges on New Jersey's U.S. district court refused to extend Habba's tenure, federal law stipulates the job of interim U.S. attorney now falls to Desiree Leigh Grace — a career prosecutor who was the #2 official in the U.S. attorney's office — until Trump names a replacement who is confirmed by the U.S. Senate. However, even though Attorney General Pam Bondi fired Grace, CBS News reports that Grace intends to remain in her position until a replacement is named, throwing the situation into chaos.

As part of its efforts to keep Habba in the role, the White House announced last week it was pulling her nomination, and instead appointing her as first assistant U.S. attorney (Grace's role before she was fired), meaning she would assume the role of interim U.S. attorney once again under the Federal Vacancies Reform Act. Under that law, Habba can serve for another 210 days, meaning her time will expire again in February of 2026.

The lawsuit challenging Habba's authority has been moved to U.S. District Judge Matthew Brann — who is the chief justice of the Middle District of Pennsylvania — since all of New Jersey's district judges are ineligible due to the conflict of interest arising from their previous decision to not bring on Habba as the full-time U.S. attorney. Brann was appointed to his position by former President Barack Obama in 2012.

Mirigliano is representing Julien Giraud Jr., who is facing drug and firearm-related charges. His trial is slated to begin in August.

Click here to read Axios' full article, and click here to read Mirigliano's full complaint.

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