Dem
47
GOP
53
A three-judge panel of the Third Circuit U.S. Court of Appeals has unanimously upheld the disqualification of Alina Habba, who was again found to be serving unlawfully as the U.S. Attorney in New Jersey. The panel, which consisted of two George W. Bush appointees and one Biden appointee, held that Habba's appointment as "acting" U.S. Attorney violates the Federal Vacancies Reform Act.
This saga began when Donald Trump nominated Habba—yet another of his former personal defense lawyers with no prosecutorial experience—to be U.S. Attorney for New Jersey. While she was awaiting Senate confirmation, she was serving as "interim" U.S. Attorney. In that capacity, she could serve for 120 days. After that, absent confirmation, the law states that the district court decides who should serve in the position. The two Democratic Senators from New Jersey did not return their blue slips, so her nomination did not move forward. Nonetheless, Trump kept her on the job. And even in the short time she was serving, she was carrying out Trump's marching orders for political and retributive prosecutions. She vowed to "turn New Jersey red" and initiated investigations into New Jersey Governor Phil Murphy and Attorney General Matthew Platkin and filed felony assault charges against Rep. LaMonica McIver, all Democrats.
When the 120 days expired, the district court did not extend her appointment and instead put the First Assistant, a career prosecutor named Desiree Grace, into the position. So, what did Trump and "Attorney General" Pam Bondi do? They accepted the outcome and complied with the law, because that's how they roll. Ha! Not really. Instead, they thought they could be really clever and evade the law by first yanking Habba's nomination. Then, Bondi fired Grace and installed Habba as First Assistant. And lo and behold, since the U.S. Attorney's position was now vacant, Habba was installed as the "acting" U.S. Attorney. Problem solved, right? Not so much.
The Court held that only the First Assistant who is already in the role when the U.S. Attorney position becomes vacant can serve as the Acting U.S. Attorney. So, when Grace was fired, whoever was serving as the First Assistant (before Bondi tried to put Habba in that role) would have been automatically elevated. The Court also pointed out that Trump could have put a different person in as acting U.S. Attorney, but only if they had already been confirmed by the Senate or had experience within the agency. Habba had neither of those qualifications.
So, now what happens? The Court has already held that cases brought by career prosecutors can continue under Bondi's supervision, but Habba has no authority to initiate any cases or supervise any attorneys in that office. And yet she's still there. Bondi could appeal to the U.S. Supreme Court or, alternatively, Trump could nominate someone qualified to serve as U.S. Attorney. And this administration has done that in other jurisdictions. While there have been several other U.S. Attorneys disqualified for the same reason as Habba (i.e., they passed the 120-day mark), many others' tenures have been extended by the district courts while they await Senate confirmation. The difference is that they are qualified, experienced, career prosecutors. Apparently, for some people, that matters. Go figure.
And then there's Lindsey Halligan. Trump and Bondi are reportedly considering re-indicting both James Comey and Letitia James after a court disqualified Lindsey Halligan from serving as U.S. Attorney for the Eastern District of Virginia. It's unclear whom they can get to present the cases to the grand jury and even Bondi and Trump don't even seem to have an idea. They haven't yet filed an appeal of the district court's order dismissing both cases and finding that Halligan's appointment was unauthorized. They have 30 days to do that.
The thinking could be that they could try to re-indict before the deadline to appeal. But that's pretty risky. Even if they find a prosecutor to present the cases to the grand jury, getting an indictment will be difficult. In the Comey case, Halligan had to mislead the grand jury and misrepresent the law and still only barely got an indictment. One has to assume that if the prosecutor accurately presents the facts and the law, they'll be facing a skeptical grand jury in both cases.
And that's before you get to the statute of limitations problem with the Comey case, which expired on September 30. In her ruling, Judge Cameron Currie addressed that issue and opined that because she held that the indictment was invalid, the government cannot rely on a 6-month grace period that usually applies when indictments are dismissed on substantive grounds. Because that issue wasn't directly before Judge Currie, that aspect of the decision is considered "dicta," or non-binding, but it offers important clues as to how the courts view that aspect of federal law.
Meanwhile, Halligan has still not stepped down. The petulance of Trump and his cronies is astounding. John Day, president of the American College of Trial Lawyers, said it best: "It's a procedural morass. The uncertainty that all of these machinations have created is sort of alarming. It's all in this place because the administration has decided it does not want to proceed under normal order." Indeed, they just can't bring themselves to follow the law—they're like toddlers in charge of the government and Justice Department. And so we wait to see the outcome of this latest temper tantrum. (L)