A maneuver by the U.S. Department of Justice to install three prosecutors as the co-leaders of the New Jersey U.S. Attorney’s office is the subject of a legal challenge from two New Jersey defendants, with U.S. District Judge Matthew Brann hearing arguments in the case today.
After Alina Habba resigned from the U.S. Attorney’s Office in December following her disqualification by both Brann and a Third Circuit panel, the DOJ announced that Philip Lamparello, Jordan Fox, and Ari Fontecchio would each supervise different divisions of the U.S. Attorney’s office in her absence. That unusual tripartite structure has remained in place for the month and a half since then, with no obvious effort to install a new U.S. Attorney in their place.
Two defendants under prosecution in the District of New Jersey, Raheel Naviwala and Daniel Torres, both filed motions to prevent the DOJ from prosecuting them, echoing similar arguments that sank Habba last year. The designation of three people to essentially serve as U.S. Attorney in all but name, the defendants’ lawyers say, was a violation of the law and their clients’ legal rights.
“The position of U.S. Attorney remains vacant – as does the First Assistant position – and these designees, like Ms. Habba herself, may not exercise the authority of that office in any capacity whether by committee or in a piecemeal fashion,” a filing from Naviwala’s attorney states.
An amicus brief filed by the Association of Criminal Defense Lawyers of New Jersey, which was also involved in the effort to disqualify Habba, laid out the case in even more succinct terms: President Donald Trump has made it clear that his objective is to steamroll standard appointment practices, ignoring both the federal judiciary and the U.S. Senate in the process.
“After failing to secure the Senate’s consent to the President’s preferred nominee for U.S. Attorney, the government has broken out a seemingly bottomless bag of tricks to prolong the vacancy and work around the vacant office as if Congress had never created it – a strategy that the President has been perfectly candid about,” the ACDL-NJ’s brief states.
The ACDL-NJ also warned that allowing the status quo to continue would give the green light for the Trump administration to turn to similar tactics in other districts where acting U.S. Attorneys have been declared ineligible by judges. The Habba saga in New Jersey was followed by similar battles in California, Virginia, Nevada, and New York; allowing the three-person designation to remain, the brief states, “risks letting it metastasize, creating a template for circumvention in other districts.”
The DOJ, for its part, has argued that there is nothing untoward about the division of U.S. Attorney duties among three individuals, just as it previously argued there was nothing wrong with the Trump administration’s convoluted attempts to keep Habba in office.
“[The] new supervisory structure for the USAO-NJ,” the DOJ wrote in a January filing, “both complies with this Court’s and the Third Circuit’s decisions and provides ‘the citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office’ with ‘clarity and stability.’”
Just as Habba’s fate once did, the outcome of the case hinges on Brann, a Pennsylvania judge who was assigned to the Habba case last summer.
Habba, meanwhile, is making her own effort to get back into the U.S. Attorney’s office. Earlier this month, the DOJ filed a petition to get the full Third Circuit to rehear her case, arguing – once again – that Trump and Attorney General Pam Bondi had properly followed federal appointment laws in choosing her for the office.
