No, the headline isn’t a joke. Trump wants Alina Habba to be a U.S. Attorney in New Jersey. He couldn’t get her confirmed and tried to do an end run. Which created a mess that’s threatening prosecution of criminal cases so the whole matter wound up in court. Incredibly AG Bondi’s guy argued the judges who used their authority to appoint someone other than Habba should “collaborate” (Conspire? “Collude”?) with Trump to give him what he wants!
It IS a mess, and one Alternet explains. Let’s start with how we got to this point. Parking Lot lawyer turned Trump personal lawyer (who lost the case) turned Trump nominee for U.S. Attorney wasn’t confirmed by the Senate. It seems even Trump couldn’t bully quite enough Republicans to confirm someone so unqualified. She could and did serve in an Acting capacity but time ran out. Trump wants Habba in that job but has a problem. There’s a federal law that happens to include exactly what the options are if time runs out on confirmation. A panel of NJ judges could either go ahead and appoint Habba, or pick someone else the law allows them to go with. They chose the latter option and it’s crazy enough U.S. District Judge Matthew Brann joked he’d been assigned to hear it “for my sins.”
It’s no laughing matter though. Setting aside the issue of how unqualified Habba is (she made mistakes in court defending Trump in NYC law students wouldn’t make) is the issue of how her being end-arounded back into the job she lost affects prosecutions. She currently lacks legal authority to sign off on what prosecutors serving in that office do but refuses to recuse herself. If she doesn’t have legal authority any convictions obtained would be voided on appeal and jeopardy would be attached meaning criminals would go free.
One attorney filed a lawsuit demanding dismissal of an indictment against his client due to Habba’s refusal to recuse herself. Or just give up and go back to DOJ where I’m sure Bondi would find something for her to (not?) do. Other defense attorneys started bringing up the same issue. Judges in the jurisdiction are faced with dismissing prosecutions, or allowing them to continue and risking convictions being overturned. Or trying to delay them pending a resolution of this matter. Some are transferring cases to other jurisdictions if they can but that’s not always an option and federal courts have long been overcrowded.
With defense attorneys forcing the issue and one willing to go to court over it the whole hot mess wound up in Judge Brann’s courtroom for a hearing. And it was just the kind of ‘WTF?” hearing you’d expect with Team Trump being one of the litigants. Bondi had DOJ lawyer Henry Whittaker arguing for Team Trump and as the linked article tells us he talked some crazy sh*t. He accused the panel of judges in New Jersey who ruled Habba’s tenure would end and appointed another top prosecutor at that office to take over as U.S. Attorney of having created a ‘Constitutional Crisis.” Again I say WTF? TRUMP and his minion Bondi are the ones who ignored the law and tried to get around it. But Whittaker said otherwise:
That was an “atypical decision,” said attorney Henry C. Whitaker, who went on to blast the judges for not “collaborating” with Trump officials to ensure the top federal prosecutor job would go to someone both the administration and courts agree on.
The district court initiated this constitutional confrontation that did not need to happen,” said Whitaker, counselor to Attorney General Pamela Bondi.
Granted, this idiotic statement was made near the end of what Alternet called four hours of ‘tedious” arguments but still it was a stupid thing to say on the record in open court. Let’s talk about why. The Constitution grants Presidents power to make appointments to various positions with the “advice and consent” of the Senate. It’s that consent part that’s at issue. Over time laws were developed defining what appointments required Senate confirmation and it’s long established that U.S. Attorneys fall within that. (More on that in a bit) Since some positions are quite important, if the Senate wasn’t in session (remember what things were like when the Constitution was ratified) President’s could name someone in an Acting capacity pending confirmation.
Over time, usually but not always the Senate would get around to confirming an appointee. However while great deference was given to Presidents not always. In modern times it’s become more common for Presidents to nominate controversial picks and for the Senate to put them through the wringer. And sometimes reject them. This of course leads to “what now” situations. Presidents can re-submit someone for consideration and have sometimes done so but it’s easier just to move on – and even engage in a bit of the ‘advice’ part of the “advice and consent’ written into the Constitution.
In some matters and this is one there is a specific federal statute in place to address when the President and the Senate disagree. So there’s literally a federal law that to put in in lawyer’s term is “On point” to address filling a vacant U.S. Attorney position if the Senate doesn’t confirm a President’s pick. The 120 day “clock” on the Senate approving a Presidential appointment ran out on Habba. So, as already explained and under a 2007 law, the Preserving United States Attorney Independence Act, a panel of federal judges rejected the option of installing Habba. During Trump’s first term the Senate rejected a U.S. Attorney nominee but under the just mentioned law a panel of judges used the authority it provides to go ahead and appoint the guy. Not this time:
But on July 22, a panel of federal judges facing a similar decision instead named Habba’s top deputy, Desiree Leigh Grace, to the post. That so enraged Trump administration officials that they fired Grace and reinstalled Habba, kicking off the ongoing legal battle that drew a small army of attorneys to this Lycoming County city best known as the home of the Little League World Series.
Team Trump is claiming an older, broader law addressing vacancies takes precedence:
But the attorneys fighting to keep Habba in the post said her reappointment should stand because it’s valid under the Federal Vacancies Reform Act, a 1998 law that directs a vacant position’s second-in-command to become the acting officer-in-charge for up to 210 days. After Trump officials fired Grace, Habba resigned and Bondi named Habba first assistant U.S. attorney, essentially restoring her as acting U.S. attorney.
It’s circular logic and in practical terms voids separation of powers which is what those who wrote and ratified the Constitution intended. There was a fear of too much power being in any one person’s hands so they set up a system to prevent it. Trump, with the GOP’s support has been laying waste to the whole thing. I’ll guarantee you they’d be singing a different tune if a Democratic President and administration was trying to pull this stunt. Hell, they’d be howling at the moon and on the march with torches and pitchforks!
Well, we should know soon enough how the judge will rule. He’s allowed until the end of the day Monday for both sides to submit supplemental briefs and acknowledge the need for urgency saying to expect a decision mid-week. Alas, he’s indicated he might actually give in. One has to wonder what threats are being directed at HIM. I’m not a lawyer but you don’t have to be one to realize this comes down to a choice of which law to follow. One that deals with vacancies in general but one enacted almost ten years later to SPECIFICALLY address conflicts between an administration and the Senate when filling vacant U.S. Attorney positions? DUH!
Whatever the judge rules I doubt it will be the end of the matter. If the judge gives in and conspires (I used that word instead of collaborate deliberately) with Trump the defense lawyer who set this in motion will appeal. Trump will of course appeal if HE loses because appealing rather than accept defeat is in his DNA.
Meanwhile criminal justice in that jurisdiction is majorly screwed up. Judges trying to delay cases can wind up bumping up against another federal statute regarding the right to a speedy trial. Or, allow prosecutions signed off on by Habba to go forward and be overturned. By the time all those defendant’s appeals have played out Trump may be gone. Appellate judges including I think SCOTUS are going to want to start moving the system back towards a semblance of balance. Stay tuned folks. This “crazy” will likely get even more crazy.
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does this then get appealed to the third circuit which covers NJ where Emil Bove sits on the bench? The 3 stooges Blanch, Habba Dabba DO, Bove?