Lawyers Want To Send Trump A Message In New Jersey: Free Accused Criminals

NEWARK, New Jersey — Let accused criminals walk.

That’s the remedy some defense attorneys are now urging a federal judge to consider amid an escalating standoff over who is legally allowed to run the New Jersey U.S. Attorney’s Office.

“Cases have to start being dismissed,” defense attorney Jason LeBoeuf told a federal judge last week. “Things have to start moving in a direction where the executive finally gets the message.”

The threat is no idle talk: The office has been without a Senate-confirmed leader for months, an unprecedented situation that has now forced U.S. District Judge Matthew Brann to confront whether federal prosecutors there have the authority to keep bringing cases at all.

The Trump administration has circumvented Senate confirmation for its top prosecutors in other places too, but New Jersey’s was the first of them to be disqualified, followed by U.S. attorneys in Nevada, California, Virginia and New York.

The standoff is the latest test of how far the Trump administration can stretch the limits of executive power — and how willing courts are to push back. Across the country, judges have increasingly found themselves refereeing disputes over appointments, enforcement authority and the bounds of presidential discretion, often with few clear remedies.

In New Jersey, that tension has been brewing for months. Trump loyalist Alina Habba stepped down in December after an appeals court upheld a previous Brann ruling that disqualified her because she served too long without being confirmed by the Senate. But Attorney General Pam Bondi immediately put three attorneys in charge of the office who also were not confirmed by the Senate.

Critics of the arrangement say it’s just as wrong and done in bad faith; the Trump administration says it was responding to a ruling that disqualified Habba and the office needs to be managed in the meantime.

But there is no clear end in sight. The Justice Department attorney for the Trump administration in the New Jersey case, Mark Coyne, declined last week to put a time limit on how long he thinks Trump and Bondi could run the office without a vetted U.S. attorney.

Coyne blamed a “broken” Senate confirmation process. Defense attorneys blame the president for failing to pick someone who can get Senate approval.

They also argue the triumvirate running the office — unique in American history — is also flawed, though no judge has yet to rule on it.

In the original case disqualifying Habba, Brann declined last summer to dismiss charges against several defendants who challenged her authority.

Defense attorneys say Trump now needs to pay a price.

The White House referred a request for comment to the Justice Department, which declined.

Even if it’s politically fraught for a judge to start freeing people accused or even convicted of crimes, it may be among the simplest remedies Brann could offer if he finds the current leadership arrangement is illegal.

Such a step, however, would be extraordinarily rare, and thus far none of the judges handling any of the cases challenging the leadership of U.S. attorneys’ offices has come close to letting defendants walk, although in one case a judge agreed to quash a pair of subpoenas after disqualifying the top prosecutor in the Northern District of New York.

Still, some of Brann’s other options are perhaps even more daunting: He likely can’t force the president to pick someone. He likely can’t force the Senate to confirm someone.

“The remedy must be something about which the administration actually cares, and which reflects the true value of my client’s constitutional rights,” another defense attorney, William Strazza, wrote on behalf of his client who is accused of drug trafficking and weapons charges. “Dismissal of my client’s indictment is that remedy. The administration cares not one bit about judicial criticism or court orders. But it is reasonable to believe the administration might care about dismissed indictments.”

While most defense attorneys have clients with pending charges, at least one person requesting to have their case dismissed has already been convicted: A jury found Raheel Naviwala guilty last year for his role in a Medicaid fraud case after a month-long trial. Naviwala’s sentencing has been delayed, in part, because of legal uncertainty about the authority of prosecutors in New Jersey to proceed with cases.

The Justice Department has argued that even if Brann rules against the three-attorney arrangement, he shouldn’t dismiss any case, just prevent the unconfirmed officials from overseeing cases.

But procedural flaws can, of course, help defendants beat charges — as Trump himself knows.

Defense attorney Doug Passon, who represents Naviwala, and others have pointed to the bombshell ruling in 2024 that dismissed a federal criminal case against Trump by finding that special counsel Jack Smith’s appointment was unconstitutional. They argue the logic applies equally to the unconfirmed prosecutors in New Jersey.

Brann picked at that claim during three hours of oral arguments last week.

“Was Judge Aileen Cannon simply wrong in her interpretation of the appointment statutes in that case?” Brann asked.

“Personal answer,” Coyne said. “She was dead wrong.”

Coyne then argued the cases are distinct.

But his first reply, while consistent with DOJ’s position in the Smith case, is at odds with Trump’s. Ironically, Trump was represented in that case by Todd Blanche, now the deputy attorney general.

If nothing else, the ongoing legal uncertainty in the office has bred months of confusion, prompting judges to delay cases.

There also remains confusion about Habba’s role in the office. Even after she stepped down as U.S. attorney, DOJ has said she could “from time to time” supervise cases because she remains at the department.

Brann said his goal is to get the office “back on track.”

Erica Orden contributed to this report.