Dem
47
GOP
53
The problem with trying to turn the Department of Justice into your own personal brute squad is that it can create issues when you install people who don't know how to, you know, prosecute actual crimes (as opposed to things Donald Trump wishes were crimes). Judges, as it turns out, are not pleased when their time is wasted on frivolous score-settling cases. They are even less pleased by the thought of actual bad guys and gals going unprosecuted, or escaping their just punishment, because the government mishandled a case.
In the federal courts in New Jersey, as in many other federal courts, the judges have had their fill of the clown show that used to be the DoJ. As a reminder, the U.S. Attorney's Office for New Jersey had been run by Trump lawyer Alina Habba until U.S. District Judge Matthew Brann ruled that she was serving in the office unlawfully. The courts then appointed someone competent and experienced to run the office, as required by the Vacancies Act, but that person was immediately fired by Trump's other personal attorney, Todd Blanche, who is currently playing the role of Deputy AG. Blanche, who apparently can't read, was incensed that the judges would have the gall to follow the law: "Judges don't pick U.S. Attorneys, POTUS does. See Article II of our Constitution." Actually, that's not what Article II says. Article II, Section 2 (the Appointments Clause) says that the president nominates a U.S. Attorney and that person may be appointed "by and with the Advice and Consent of the Senate." Without Senate confirmation, which the president hasn't bothered with, the person can only serve in the role temporarily. The courts have to step in if the person continues in the office beyond the time allowed by law.
After firing the court-appointed attorney, Blanche and "AG" Pam Bondi had the genius idea to appoint three people to lead the office. Soon, this "triumvirate," as they were called, found themselves back in front of Brann, who ruled on March 9 that the three were serving unlawfully in violation of the Appointments Clause.
In yet another scathing ruling, Brann held that these illegal moves to circumvent the nominating process and the law are jeopardizing public safety. These maneuvers mean that "scores of dangerous criminals could have their cases dismissed or convictions eventually reversed." But, the Judge concluded, the Trump administration doesn't care about that. Their only concern is who is running the office, not "whether it is running at all." "The president here seeks the power to unilaterally appoint officers of his choosing to staff critical positions exercising vast authority Government-wide. Though the Government dresses its argument in sheep's wool of administrative necessity, 'this wolf comes as a wolf.'" He also ruled that "any further attempts to unlawfully fill the office will result in dismissals of pending cases." Brann paused his order to give the government time to appeal but noted that "if the government chooses to leave the triumvirate in place, it does so at its own risk."
In the meantime, to illustrate the problem Brann described, on March 17, U.S. District Judge Zahid Quraishi was overseeing a sentencing hearing for a defendant who had pled guilty to possession of child pornography. Following Brann's ruling, Quraishi gave the government the opportunity to delay the hearing, but they declined. As a result, the Judge issued an order stating that the prosecutor should be prepared to answer questions about the office's leadership. On the date of the hearing, the prosecutor, Daniel Rosenbaum, was unexpectedly accompanied by Mark Coyne, the office's head of appeals, who tried to address the court. This is a big no-no. Only attorneys who have formally declared their representation, the attorneys "of record," can make court appearances on behalf of the client. Coyne had not done so and had not alerted the court in advance that he wished to make an appearance. So, the court would not allow him to speak on the record—he could pass notes to the prosecutor and be present as a supervisor but that's it. Nonetheless, he persisted. He refused to stay silent as the Judge questioned Rosenbaum, so the Judge threw him out of the courtroom.
Let us pause for a moment, to let that sink in: A member of the U.S. Attorney's office and an officer of the court had to be thrown out of federal court because he wouldn't follow basic court rules. In any other administration, he would be fired immediately. With this administration, he's probably next in line to run the office.
Meanwhile, Quraishi wanted to know why the prosecutor was recommending a lighter sentence and why they executed a plea agreement without having all the evidence, including the results of the FBI's search of the defendant's devices which revealed significantly more egregious material. Rosenbaum acknowledged that "errors" were made. The Judge was incensed that the prosecutor was so willing to let this guy off so lightly and that he seemed indifferent to the additional crimes suggested by the material found on the defendant's device.
Quraishi then moved on to ask who was running the office and whether Alina Habba had any current role. Rosenbaum couldn't definitively answer those questions, though he represented to the court that Habba has no role. Rosenbaum did confirm that the triumvirate were still in place. The Judge then said, "What you've told me today, what your representation is, which I don't believe, by the way. I won't believe it until you testify. That is what has happened to the credibility of your office. Generations of Assistant U.S. Attorneys had built the goodwill of that office for your generation to destroy it within a year." He then ordered all three of the supposed leaders of the office to testify at a hearing on May 1 and directed Rosenbaum to alert his colleagues that any future hearings would not be proceeding as usual. He told Rosenbaum, "You have lost the confidence and the trust of this court. You have lost the confidence and the trust of the New Jersey legal community, and you are losing the trust and confidence of the public." Wowzers.
It looks like that may have gotten someone to sit up and take notice because on March 23, Brann issued an order naming Robert Frazier, a veteran prosecutor, as New Jersey's U.S. Attorney. The DoJ agreed to the appointment, thus marking a surrender in this particular war.
Presumably, that means the "triumvirate" need not appear in Quraishi's courtroom and criminal cases can proceed as usual. Perhaps this type of agreement can also be used to resolve issues with the unlawful appointees in other offices, like Nevada, Los Angeles, and New York. Otherwise, this will undoubtedly keep happening. And the brain drain continues—more seasoned prosecutors are quitting or getting fired for political reasons and the department can't replace them. The DoJ just lowered its requirements for an assistant U.S. attorney position. Before, an attorney needed at least one year's experience as an attorney, but they have now eliminated that minimum requirement. Public safety is being severely compromised for political considerations. Of course, Congress could do something about this, but Republicans are only interested in genuflecting to Trump (see below for more). (L)