After Alina Habba's Exit, More Drama In New Jersey Prosecutor's Office

A federal judge will hear arguments Friday that the Trump administration is illegally running the New Jersey federal prosecutor’s office — the latest challenge to the administration’s attempts to circumvent the Senate confirmation process.

In December, Trump loyalist Alina Habba resigned as the U.S. attorney for New Jersey after an appeals court upheld a ruling that she was disqualified from holding the job.

After Habba left, Attorney General Pam Bondi put a trio of Justice Department lawyers in charge of the office: Philip Lamparello, Jordan Fox and Ari Fontecchio. That appeared to be a way around rulings that said President Donald Trump could not place someone in the job indefinitely without Senate confirmation.

Each of the three do part of the job that Habba was doing, an unusual arrangement known as the “executive office.”

None have been confirmed by the Senate.

Defense attorneys immediately challenged the setup and are seeking to get cases against their clients tossed. In one case, attorneys argue that Bondi and Trump are “effectively abolishing” the office, which handles thousands of criminal and civil cases each year across all of New Jersey.

The case comes as the administration’s attempts to circumvent Senate confirmation for its prosecutors have repeatedly been rejected by federal judges. Habba was the first of them to be disqualified, followed by U.S. attorneys in Nevada, California, Virginia and New York.

“In a transparent game of superficial semantics, the Government fabricates a so-called ‘Executive Office’ — a creature of make-believe provenance — to ‘conduct the work’ of a United States Attorney wholly unconstrained by the Appointments Clause,” said a Jan. 17 filing on behalf of two men trying to get their cases tossed.

One of the men challenging the new leadership structure of the New Jersey office, Raheel Naviwala, was convicted last year of conspiracy to commit health care fraud. The other, Daniel Torres, is facing several drug charges.

In a friend of the court brief, the Association of Criminal Defense Lawyers of New Jersey said Trump and Bondi have created a leadership vacuum in the office that also obscures responsibility for decisions.

“The citizens of New Jersey, the career professionals of the United States Attorney’s Office, and the defendants subject to federal prosecution are entitled to the clarity, stability, and lawful supervision that Congress mandated, not an indefinite leadership void,” the association’s Joshua Gillette wrote in a Jan. 17 filing. “Enough is enough.”

Todd Blanche, the No. 2 at DOJ, said that the defense attorneys “are wrong.”

“And the relief they seek — broad disqualification orders and dismissal of superseding indictments returned by valid grand juries — wouldn’t be proper even if they were right,” he said in a Jan. 16 filing.

Blanche said Bondi had authority to appoint the people to run parts of the office when she named Lamparello to run the criminal division, Fox to run the appeals and civil division and Fontecchio to run the administrative division.

Chief Judge Matthew Brann of Pennsylvania’s Middle District will travel to Newark to hear the arguments Friday afternoon. Brann, a conservative who was nominated by President Barack Obama, was the first judge to rule against the administration’s use of a loophole to keep Habba in office as interim U.S. attorney after her 120-day appointment expired. His decision has been upheld by a panel of the Third Circuit, though the administration continues to appeal, seeking a hearing before the full bench.

Attorneys for another defendant, Christopher Castelluzzo, who was indicted in August for allegedly laundering drug money, argued that the Justice Department itself in a September appeal brief to the Third Circuit undercut its own case for delegating Habba’s responsibilities to multiple prosecutors. “In its own words, ‘it is not evident why that distinction [between a single person and three] would be material under [this Court’s] reasoning,” wrote the attorneys, Peter Katz and Leslie Sammis. “The government is right. This ‘Executive Office’ is just as illegitimate as was Alina Habba’s appointment and so both the ‘Executive Office’ and its members should be disqualified for the same reasons.”

“This Court must continue to hold the government accountable for its refusal to follow the Constitution and laws of the United States,” the attorneys wrote. “The government simply refuses to take ‘no’ for an answer.”