This is Bloomberg Law with June Grossel from Bloomberg Radio. You may be familiar with Elena Haba from her vigorous defense of President Donald Trump in three civil lawsuits in New York which Trump lost, including a defamation suit brought by writer Egene Carroll.
This is wrong, but we are in the state of New York.
We are in a New York Jerry, and that is why we are seeing these witch hunts, these hoaxes, as he calls them, and this is another one of them.
Be brought in New York.
I was yelled at, and I've had a judge who is unhinged slamming a table.
Let me be very clear.
I don't tolerate that in my life.
I'm not going to tolerate it here.
What we aren't witnessing today is the blatant and unapologetic weaponization of the criminal justice system. Trump appointed Haba, who's never worked as a prosecutor, as acting US Attorney for in March, but both the state's Democratic senators opposed her nomination, and she became the second Trump US attorney nominee to fail to receive Senate confirmation. When Habba's one hundred twenty
day interim term expired. Federal judges in the state chose her top assistant, Desiree Grace, to succeed her, but hours later, Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi then named her to be the chief Deputy in the U s Attorney's Office, meaning she'll automatically inherit the title
of acting US Attorney for New Jersey. The procedural maneuvering opens the door to legal challenges from defendants, and this week, a defendant facing an August fourth trial on drug trafficking and firearms related charges files such a challenge, asking that his case be dismissed because Haba is no longer an authorized US attorney. More such challenges are sure to be filed.
My guest is Stanford law professor and Joseph O'Connell, and will you start by explaining the law around interim US attorney appointments.
Sure, so, normally each district has a US attorney who's nominated by the President and confirmed by the Senate, but there are often incredible delays in that process. So Congress has enacted two statutes that provide for temporary service of US Attorney's wall, the traditional appointments process churns, so the first way to get a temporary US attorney is through
twenty eight USC. Five point forty six, and that allows the Attorney General to pick what is called an interim US attorney and that person can serve for one hundred and twenty days, and then at the expiration of that one twenty day period, the district court in that district may doesn't have to May pick an interim US attorney who can serve until someone is confirmed to the position. There's also another statute that covers more than just US attorneys,
so five forty six just covers US attorneys. There's something called the Federal Vacancy's Reform Act of nineteen ninety eight, which is the latest in a long history of vacancies acts. We've had them since the late eighteenth century. And the Vacancy's Act allows acting US attorneys and also acting leaders in a bunch of other positions, and they are there are also time limits. There's no role for the district court.
And I would say maybe two of the biggest differences between the five forty six statute just for US attorneys and the Federal Vacancies Act of nineteen ninety eight are the followings. So first, under five forty six, anyone can be picked as the interim US Attorney by the Attorney General and then by the District Court. The person doesn't have to already be within the Department of Justice. That's
not true for the Federal Vacancy's Reform Act. For the Federal Vacancy's Reform Act, there are three categories where people can be drawn from and they all have to be already within the government. And the second difference is that under five p. Forty six you can both be the interim and the nominee for the position, and under the Vacancies Act, in very few circumstances you can be. But in the circumstance in New Jersey, she couldn't both be the acting US Attorney and the nominee.
So the one hundred and twenty days was running out and New Jersey federal judges chose Habbah's hand picked first assistant, Desiree Grace, to replace her, but within hours the Attorney General fired Grace. Is the ag allowed to fire Grace once the judges have appointed her.
No, so Attorney General Bondi could fire her from being first assistant. That's within her powers. But although the Attorney General is supposed to pick the US attorney in the interim capacity under five forty six, she cannot fire someone who is picked by the Court. And why is that Because under constitutional law, the Supreme Court has held in multiple cases that the power to remove follows the power to appoint for these inferior offices, which US attorneys are,
unless Congress has specified otherwise. Now, under that rule, the Court has appointed, so only the Court can remove. But that runs up against another constitutional law principle about separation of powers. So the Office of Legal Counsel has long held that the president and only the president, can fire
a court appointed interim US attorney. And we saw this happen in the first Trump administration when President Trump fired Jeff Berman, and there was a bit of a skerfuffle about it because initially it seemed as if Attorney General bar was pushing him out, and finally it kind of came down and the President got involved and Jeff Berman left, So here.
The president could fire Grace with no problem.
That's right, And I think you could say that happened arguably. I mean after Attorney General Bondi's ex post. I mean, we're running government through ex posts. But after Attorney General Pam Bondi's ex post, which doesn't talk about the president's authority at all, Todd Blanche, who's the Deputy Attorney General, says that pursue into presidential authority. They're firing Grace as the court appointed a US attorney, and I think that's
probably enough. I mean, you could argue about the wording. I mean, interestingly, I was fired by President Trump from a part time position on January twenty first, and the email that I received says, on behalf of President Donald J. Trump, I was terminated for my position, So maybe you could argue it wasn't truly the president firing. But I think that most would think, at least functionally, the president has fired Grace from the interim position.
The Trump administration did is withdrew her appointment to be the US Attorney for New Jersey, so they allowed her to resign as interim US Attorney, then appointed her as first Assistant US Attorney, So that automatically means she's in the role of acting US attorney for another two hundred and ten days.
That's right. So there are these three pools or categories I talked about, and the first pool under the Vacancy's Act is the first assistant to the position is the default acting official. There's no further action that has to be taken by the president. So once she's slotted into that first assistant position, she then becomes the acting US Attorney.
At the end of her two hundred ten days. Can the Trump administration reappoint her?
No, Well, it's contested. Under five forty six. The administration and previous administrations have done successive one hundred and twenty day appointment. So in the District of DC, we had ed Martin. Ed Martin was not picked. They then picked a different person for another one hundred and twenty day service.
Jamie kiro So, I think, although Congress did not intend it when they put back these time limits in two thousand and seven into section five forty six, I think you could probably do a successive one to twenty day appointment, but under the Vacancies Act you can't. The language there is clear that you can't just reappoint, right, you can't just keep doing new two hundred and ten day acting officials. And there's even a penalty provision in the Vacancies Act.
If you violate the time limits, certain actions can be voided by the court, So that would give like a boon to criminal defendants if she's served past the two hundred ten days. Let me just say two things about the two hundred ten days and how long she can serve. Is that if there's a nomination pending, not of her right, because she can't both be the first assistant acting and
the nominee. But if there's a nomination pending of someone else, she can continue to or during the pendency of that nomination, plus another two hundred and ten days if that nomination is returned, and she can do it a second time. Right, If there's a second nomination, she can serve through the pendency of that second nominations and a final two hundred
and ten days at the end. The other thing I would say is that everyone is assuming that she only has two hundred and ten days to serve because they're dating the vacancy from the end of the interim service.
But I do think there's an argument, likely not as strong, that the vacancy actually dates from the start of the administration, from when we kind of consider the departure of the last Senate confirmed person, and under the Vacancy's Act, you would have three hundred days from January twentieth, and so that's like another thing about the time limits of her service.
It seems pretty obvious that the Trump administration wants her in this position. Is there anything else they can do so that she can be nominated again to be US Attorney?
So she can't both be the acting US Attorney and the nominee. But I think we might look to the Mark Esper situation in the first term of President Trump. So Mark Esper had been confirmed to be one of the service secretaries of the Defense Department. There was a whole thing about who is going to be the next Secretary of Defense. He became the acting Secretary of Defense. President Trump decides, actually he wants Esbert to become the next secretary, but he can't both be the acting and
the nominee for the Secretary of Defense position. So what happened is the White House coordinated with the Senate so that Mark Esper continue to serve as acting. Then they submitted the nomination to the Senate. Mark Esper had to step down being acting. Another acting came into the role for a few days, they had coordinated with the Senate, so the confirmation process took only a few days as a formal matter, from the date of the official submission
to the actual confirmation. And so I wonder, I know nothing about the machinations in the White House, but I wonder, if they really want are in and their sufficient support in the Senate, could they coordinate with Senate leaders so that she steps down for a few days when the Senate is ready to vote on a nomination. They then formally submit a nomination again, and there's just a pause of several days of her serving as the acting US Attorney.
But there's this centurial Senate custom called the blue slip, and both New Jersey Democratic senators are against her nominations, so they won't advance the blue slip.
Right, Clearly, Mark Esper had a lot more support, and not just among Republicans. Second, would this be an opportunity to make changes to the blue slip process when it comes to the US Attorney position?
Coming up next? Disarray in New Jersey's federal criminal courts. I'm June Grosso and you're listening to Bloomberg. Federal criminal cases in New Jersey have been thrown into turmoil by the controversy over whether Alina Habba, the acting US Attorney, was legally appointed. Proceedings in federal criminal court have basically
been frozen as the controversy plays out. In the first such case, a man's schedule to be tried on August fourth on drug trafficking and firearms related charges is fighting his prosecution on the grounds that Habba is no longer an authorized US attorney and that prosecutors can't move forward with the case without a validly appointed official. The Chief Judge of the Third Circuit Court of Appeals has already reassigned that case from a New Jersey judge to the
chief judge for the Middle District of Pennsylvania. It's surely not the last such motion from a defendant facing federal charges in New Jersey. I've been talking to Stamford law
professor and Joseph O'Connell and the defendant. One's first argument is that Habbah's reappointment violates the Federal Vacancy's Reform Act because it prohibits people whose nominations have been submitted to the Senate from serving in an acting capacity for the same office, regardless of a subsequent withdrawal of the nomination.
So the first claim is a statutory claim, and it's about whether she can serve as the acting official under the Federal Vacancy's Reform Act. And under the Federal Vacancy's Reformat which is an incredibly complicated statute, it says that someone cannot serve as an acting if quote, the President submits a nomination of such person to the Senate for
appointment to such office end quote. So the argument that's being made is that although the nomination was withdrawn at some point, the President did in fact submit the nomination, and under the language of the Vacancies Act, she cannot be the acting US Attorney. Now, I think it's possible, and the government's going to argue that that language can
be read another way. I mean, the verb on submission is in present tense, right, the President submits a nomination, so I think that can alternatively be read to say that the nomination is pending. And so the withdrawal of her nomination actually does permit her to be the acting because she is no longer the nominee. But in the chaotic net of events, this is going to have to get litigated because both readings are plausible. I think the government's reading is a bit better, but the other reading
is not ruled out. So that's the statutory claim that.
Hasn't been litigated before that issue.
I cannot think of an example where the President has had to withdraw a nominations in order to allow someone to be the acting under the Federal day can sees re format I will say that in kind of lure of the Vacancies Act, we think, well, so long as a nomination is pending, in many circumstances, you can have an acting official.
The second argument is that Hobba's reappointment violates twenty eight Usc. Section five forty six D, saying that once an interim US attorney statutory term expires without Senate confirmation, the exclusive authority to appoint an interim us attorney shifts to the district court, and that the Attorney General's dismissal of Grace and reinstatement of Habba constitutes unlawful executive interference.
Yeah, so I can read this both as a statutory claim and a constitutional claim. I think a statutory claim is pretty hard because the language of five forty six says that the district court you can appoint someone, not that they have to appoint someone, and so it allows the option of district court appointment, which under the appointments clause, the Congress can choose a court of law as one of the alternatives for selection of temporary officials for these
lower levels inferior offices. I do think that there's maybe a linked constitutional claim, and that's the idea that once the district court does exercise that power, so the power is optional. But here they did exercise it. They chose misgrace, and you could make the constitutional argument that once she's chosen, the only way to remove her is by the person who picked her, which is the court. This is the
idea that the power to remove follows the power to appoint. Now, I do think there's an Office of Legal Counsel opinion here that raises separation of powers issues, and OLLC has appined claimed but the president can remove a district court appointment,
and I think that's probably right. I do think there may be yet another legal issue incorporated, and that's whether, given that we have Section five forty six, whether the White House can even turn to the federal vacancy's reformat This is an issue in President Trump's first term over about who was the proper acting or temporary head of the Consumer Financial Protection Bureau. We had Beander English kind of came in under Dodd Frank's provision, a specific provision about the CSPB.
But then we had Nick.
Mulbany, who came in under the Vacancies Act. They both turned up to work the Monday after Thanksgiving and one of the issues was, well, if there's a specific succession provision, can you have the general Vacancies Act that's available? And I think that can get litigated as well. I do think that both are available, but it's tricky because the
Vacancy's Act says that it's cool. The exclusive means for temporarily authorizing and acting official to perform an assumptions and duties of at a covered office by the Vacancies Act. But it also permits quote a statutory provision expressly end quote to provide for an alternative. And so the question
is how do you read that exclusive language? And generally the courts, not in the US Attorney context but in other contexts have said, well, sort of in calling the Vacancies Act the exclusive means, that's true unless there's another apple gooble statute, the ideas that Congress has recognized that there will be cases where the Vacancy's Reform Act is actually non exclusive. So what does that mean that you could actually have both? But I think that could also
play out as a claim. And all of this is creating chaos and it's going to slow down the activity of the U. S. Attorney's Office in New Jersey. I mean, right now, it's essentially frozen.
This case was originally assigned, of course, to a judge in New Jersey, but the Chief Judge of the Third Circuit Court of Appeals has reassigned the case to a judge in Pennsylvania. In fact, the chief Judge for the Middle District of Pennsylvania, and the one sentence order said the trial is being moved in the public interest. Does that indicate that the Third Circuit's chief judge thinks there's a problem here too.
Unlike when litigant speak a stay or pilmarian junction or tro and the court has to assess the likelihood of the merit, I don't think that's quite the same here. The way I'm reading this is that this is not a frivolous argument, and they want to figure it out before they have any issues with sort of conflict or perceptions of bias, because after all, it was the District Court of New Jersey who chose msgrace under five forty sixty.
But I'm not reading into that action that they think that this litigation is going to succeed, just that that there are arguable claims and even if it's not going to succeed, right, I actually think it's an uphill battle. I'm not saying it won't succeed. I just think it's an uphill battle against the government on these arguments. It's going to slow step down, and it's going to change workload. If all of that work in New Jersey then has to be heard by district court judges in other districts,
it's just a mess. Even assuming the government is likely to win in the end, it's still creating an incredible amount of chaos. These various actions by the Trump administration.
Did something similar happen with John Sarcone, who was the interim US Attorney for the Albany based Northern District of New York.
It had some similarity, so he had been picked to be the interim US attorney. I will say both Tony and Haba. Seems like they were picked by the president to be the interim US Attorney. And one interesting wrinkle is Section five forty six actually says the Attorney General is supposed to pick, not the president. I think, given cabinet department control by the White House, I think it's fine. But it's an interesting little wrinkle that criminal defendants might
be able to go after. But yeah, so he was picked as interim US Attorney and they are the District Court didn't pick him, but didn't pick anyone else. So the Northern of New York just didn't exercise their statutory authority to name an interim the US Attorney. And he got himself named as special attorney to the Attorney General. And then somehow, as I'm understanding the news reporting, got that position to be named as the first assistant position, and so again kind of by default, he becomes the
acting US Attorney. Now there, I do think there is a question like, is this like the ken Kuchinelli situation. Did we just create a new first assistant position in the Northern District of New York? How did the succession order get changed? I'd like to know a lot more about what went down in the Northern District of New York. I will say, in both these cases and in other cases, it's a little weird to have a court role in
appointing US attorneys. Now I think it's fine. We have this case called Morrison versus Olsen, where the Supreme Court upheld with only Justice Scalia dissenting the appointment of an
independent council by a court panel. But it does raise certain separation of powers concerns, and actually Justice Thomas, in his descent in the Braidwood case this past term, has a footnote saying that he thinks court appointed inferior executive officers are unconstitutional, so that there should be sort of no role for the Court in this process.
What's the downside for the Trump administration with this maneuvering.
I do think that these moves by the Trump administration are legal, even if there are plausible arguments on the other side. But the chaotic way it's being carried out is shining public attention to the administration's choices for these positions, to these temporary picks who normally don't get much attention at all. So even if they're upheld as a legal matter, there's now so much more oversight and worry, and they're going to be consequences for the Trump administration later on.
And I have to say, this is such a confusing legal area.
There's a great story. So in twenty seventeen, the Supreme Court heard a case about the Federal Vacancy's Reform Act, and it was actually about who could both be the acting and the nominee and an oral argument, Justice Kagan asks the lawyer who wants there to be a Vacancy's Act violation found. She says, why don't you just go out to the public and say the Vacancies Act has been violated? And the lawyer looks at her and says, because then I would have to explain the Vacancies Act.
And the courtroom burst into laughter. And there's something to that. It's an incredibly complex statute.
Well, you certainly know every section and sub section of it. Thanks so much.
An.
That's Stanford Law School professor and Joseph O'Connell coming up next on the Bloomberg Law Show. A mass exodus from the US Attorney's Office in Los Angeles. I'm June Grosso and you're listening to Bloomberg. There's been a mass exodus from the Los Angeles US Attorney's Office in the three plus months that Bill Aselli has been running the office.
May Espoto Bloomberg Law LA Courts correspondent has written about his tenure, and she joins me now start by telling us how many prosecutors and from what levels have left the office since he took the helm.
So since the beginning of the year the number that our sources have reported to us is eighty eighty people have left the office, which is about a third of the legal staff. And they've been leaving from many different levels of the office. They include the criminal chief, the head of public corruption, the head of immigration enforcement, which is especially noteworthy given that in June there were major anti deportation protests in Los Angeles and a major immigration crackdown.
People who wouldn't have expected to leave the office and have been part of it across many different presidential administrations. Saying that this is too much you and.
Your colleague Ben Penn spoke to more than thirty current and former employees at the office and other lawyers who interact with them. Is part of the problem that Assie has a strident way of communicating.
That's a good way of putting it, Yes, Ben and I spoke with more than thirty people. They described him as having a strident a communication style. They described him yelling. So four of the current and former federal prosecutors who spoke with Ben told him that as Day shouted blank the Justice Manual at a team of his attorneys that was pursuing a protest related indictment. You can fill in the blank with whatever word of your choice, but it
was a colorful one. And that happened, according to these sources, during a break from a presentation to a grand jury. And what they told us is that a grand juror actually overheard the exchange.
The old saying is that a prosecutor can get a grand jury to indict a ham sandwich. But has the office been having problems getting grand jurors to return indictments?
Right? That is something that La Times actually reported on a few days before we did. We're seeing this kind of surgeon grand jury denials, which is a bit rare because they have a much lower bar of proof to return indictments than a trial jury would need to convict. And so a couple of the lawyers that Ben spoke with said that if Sale is instructing prosecutors to take these cases from an LA grand jury to an Orange County grand jury that is in a more republican area compared to blue Los Angeles.
When he first started, what kinds of cases was he concentrating on.
Well, through it all, he's been emphasizing immigration enforcement. So he has ramped up immigration enforcement in the Central District of California in a way that our sources told us not even his predecessor under the prior Trump administration did. He's also been shifting away, reportedly from these corporate crime investigations.
And as we got into June and as Los Angeles became this national story around immigration enforcement, these protest cases started emerging, and not only did he, according to our sources, push to make sure that they were prosecuted, he was also posting the faces of people who had been arrested in connection with the protest And a lot of the tension that we reported on within the office is stemming from his handling of these protest cases that are very salient to Trump's space.
Asli was a prosecutor before, it's not that he doesn't have experience here.
He worked in Los Angeles and riverside for the Central District of California, and he left that job to take a stint as a lawmaker in Sacramento. A state lawmaker, he was known for getting into some yelling fights on the floor. Up there.
There was a case against an LA resident for distributing face shields to protesters. Explain how he went up to main Justice to get that through.
So this is a resident named Alejandro Oriana, and he was charged for distributing face shields to protesters. But sources told Ben that A. Sailey had to go to the top of the Justice Department to salvage the case because layer after layer of the DOJ recommended against the charge. The charge required consultation with the National Security Division in Washington before it could go to a grand jury. The head of NSC recommended against bringing the charge to a
grand jury. Then he went to the Deputy Attorney General's office and the dad's office did give him the green light.
Your story reveals several instances where he refused to follow recommendations, including in a case involving a Walmart employee.
Right he went over the office supervisor's advice, according to our sources, not to charge this twenty year old Walmart employee for assaulting and immigration officer. At that point, video of the arrest was going viral suggesting that the Border Patrol agents were the ones using physical force against the Walmart employee, who was a US citizen, and an FBI agent said there was not enough evidence, according to our sources,
and declined to sign a complaint. Within a day, another agent signed off on a different charge, but the social media post from a saie asserting the employee would be charged with punching an agent is still on x.
Also, I remember this case where there was an excessive force, a felony excessive force conviction against an LA County Sheriff's Department deputy, and he reached a plea deal with him after he'd already been convicted.
Right, So that case is one I've been in the courtroom for a few times. This is deputy named Discovered Kirk, and he was convicted by a jury of felony excessive force for slamming a black woman to the ground in
a parking lot. And at first the office tried to push his sentencing to August, which is after his interim period would expire, and the judge declined to do so and after that, the prosecutors asked the federal judge to approve this post trial plea agreement that they were aiming to use to reduce his conviction from a felony to a misdemeanor and release him on probation. Ultimately, Kirk was sentenced to four months and Kirk is appealing, but that
caused significant drama within the Los Angeles legal community. This post child plea agreement is something that we don't see very often at all.
President Trump has never formally nominated him to the position.
Correct, he will be named acting tomorrow, is what the DJ has confirmed with US. Tomorrow being Wednesday, So.
That'll give him another two hundred and ten days in office. And you reported that he's never acknowledged the term interim in his title.
Correct. A couple of our sources said that he will insist that he should be referred to as the US Attorney no interim.
Well, now he'll receive a new acting appointment. And this follows the same playbook the administration used Tuesday for Nevada's top prosecutor. The maneuver under the vacancy's reformac to keep the appointee for two hundred and ten days. It's the fourth time this month that the Executive branch has moved to retain a controversial chief prosecutor without the judiciary's approval.
Thanks so much, Maya. That's Bloomberg Law LA Courts correspondent Maya Spodo, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg