New Jersey Criminal Courts Frozen

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0:56Brian Buckmeyer. Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts.

1:07This is Bloomberg Law with June Grosso from Bloomberg Radio. You may be familiar with Alina Habba 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 E. Jean Carroll. This is wrong, but we are in the state of New York. We are in a New York jury, 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.

1:48I'm not going to tolerate it here. What we are 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 U.S. attorney for New Jersey in March. But both the state's Democratic senators opposed her nomination, and she became the second Trump U.S. attorney nominee to fail to receive Senate confirmation. When Haba's 120-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. Hubba resigned, and Bondi then named her to be the chief deputy in the U.S.

2:36Attorney's Office, meaning she'll automatically inherit the title of acting U.S. Attorney for New Jersey. The procedural maneuvering opens the door to legal challenges from defendants, And this week, a defendant facing an August 4th trial on drug trafficking and firearms-related charges filed such a challenge asking that his case be dismissed because Habba is no longer an authorized U.S. attorney. More such challenges are sure to be filed. My guest is Stanford Law Professor Ann Joseph O 'Connell. Ann, will you start by explaining the law around interim U.S. attorney appointments? Sure. So normally, each district has a U.S.

3:20attorney 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 U.S. attorneys while the traditional appointments process churns. So the first way to get a temporary U.S. attorney is through 28 U.S.C. 546, and that allows the attorney general to pick what is called an interim U.S. attorney. And that person can serve for 120 days. And then at the expiration of that 120-day period, the district court in that district may, doesn't have to, may pick an interim U.S.

4:08attorney who can serve until someone is confirmed to the position. There's also another statute that covers more than just U.S. attorneys. So 546 just covers U.S. attorneys. There's something called the Federal Vacancies Reform Act of 1998, which is the latest in a long history of vacancies acts. We've had them since the late 18th century. And the Vacancies Act allows acting U.S. attorneys and also acting leaders in a bunch of other positions. And 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 546 statute just for U.S.

4:51attorneys and the Federal Vacancies Act of 1998 are the following. So first, under 546, anyone can be picked as the interim U.S. 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 Vacancies Reform Act. For the Federal Vacancies 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 546, 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 U.S.

5:38attorney and the nominee. So the 120 days was running out and New Jersey federal judges chose HABA's handpicked 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 U.S. attorney in the interim capacity under 546, 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 U.S.

6:29attorneys 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 U.S. 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 Barr was pushing him out. And finally, it kind of came down and the president got involved and Jeff Berman left.

7:08So 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-post. 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 pursuant to presidential authority, they're firing Grace as the court appointed U.S. 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 21st.

7:48And 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. What the Trump administration did is withdrew her appointment to be the U.S. attorney for New Jersey. So they allowed her to resign as interim U.S. attorney, then appointed her as first assistant U.S. attorney. So that automatically means she's in the role of acting U.S. attorney for another 210 days. That's right.

8:27So there are these three pools or categories I talked about. And the first pool under the Vacancies 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 U.S. attorney. At the end of her 210 days, can the Trump administration reappoint her? No. Well, it's contested. Under 546, the administration and previous administrations have done successive 120-day appointments. So in the District of D.C., we had Ed Martin. Ed Martin was not picked.

9:09They then picked a different person for another 120-day service, Gene Pirro. So I think, although Congress did not intend it when they put back these time limits in 2007 into Section 546, I think you could probably do a successive 120-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 210-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 served past the 210 days.

9:50Let me just say two things about the 210 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 serve during the pendency of that nomination plus another 210 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 nomination and a final 210 days at the end. The other thing I would say is that everyone is assuming that she only has 210 days to serve because they're dating the vacancy from the end of the interim service.

10:29But 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 Vacancies Act, you would have 300 days from January 20th. 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 U.S. attorney? So she can't both be the acting U.S. attorney and the nominee. But I think we might look to the Mark Esper situation in the first term of President Trump.

11:14So Mark Esper had been confirmed to be one of the service secretaries of the Defense Department. There was the whole thing about who was going to be the next Secretary of Defense. He became the acting Secretary of Defense. President Trump decides actually he wants Esper 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 continued 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.

11:53They had coordinated with the Senate, so the confirmation process took only a few days as a formal matter, from like 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 her in and there's 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 U.S. attorney.

12:32But there's this century old Senate custom called the blue slip. And both New Jersey Democratic senators are against her nomination, 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 U.S. attorney position? Coming up next, disarray in New Jersey's federal criminal courts. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies.

13:23Bloomberg's Kyle Stock writes, as of June, Walmart has opened about 46 high-speed public charging stations with 380 cords. There are now EV chargers at about 326 of its U.S. stores, including adding this year four high-speed charging stations in Bentonville, Arkansas, even though the state has been a laggard in transitioning to electric vehicles. Walmart has hosted chargers from other companies since 2018. The big difference now? Walmart is building its own network, and quickly. As of March of last year, every EV station at a Walmart is under the company brand. Now Walmart is still a blip on the U.S.

14:02charging map, and yet it was second only to Tesla among charging networks expanding in the second quarter. That's the Bloomberg Tech Minute brought to you by ChachiPT. Put ChachiPT to work on your most ambitious ideas and projects. Get started at ChachiPT.com today by selecting Work Mode, available on Plus and Pro plans.

14:27Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination-style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case. I'm ABC News legal analyst Brian Buckmeyer. Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts. Federal criminal cases in New Jersey have been thrown into turmoil by the controversy over whether Alina Habba, the acting U.S. attorney, was legally appointed.

15:13Proceedings in federal criminal court have basically been frozen as the controversy plays out. In the first such case, a man scheduled to be tried on August 4th on drug trafficking and firearms-related charges is fighting his prosecution on the grounds that Haba is no longer an authorized U.S. 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.

15:55I've been talking to Stanford Law Professor and Joseph O 'Connell, and the defendant's first argument is that HABA's reappointment violates the Federal Vacancies 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 Vacancies Reform Act. And under the Federal Vacancies Reform Act, 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.

16:47So 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 U.S. 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.

17:30But in the chaotic set 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 nomination in order to allow someone to be the acting under the Federal Vacancies Reform Act. I will say that in kind of lore of the Vacancies Act, we think, well, so long as the nomination is pending, in many circumstances, you can have an acting official.

18:14The second argument is that HABA's reappointment violates 28 U.S.C. Section 546D, saying that once an interim U.S. attorney statutory term expires without Senate confirmation, the exclusive authority to appoint an interim U.S. attorney shifts to the district court, and that the attorney general's dismissal of grace and reinstatement of HABA 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 546 says that the district court can appoint someone, not that they have to appoint someone.

19:02And so it allows the option of district court appointment, which under the appointments clause, Congress can choose a court of law as one of the alternatives for selection of temporary officials for these lower level 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 Ms. Grace, and you could make the constitutional argument that, well, once she's chosen, the only way to remove her is by the person who picked her, which is the court.

19:43This 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 OLC has opined, 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 546, whether the White House can even turn to the Federal Vacancies Reform Act. 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.

20:26We had Deandra English kind of came in under Dodd-Frank's provision, a specific provision about the CFPB. But then we had Nick Mulvaney 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 Vacancies Act says that it's, quote, the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any covered office by the Vacancies Act.

21:10But 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? is. And generally, the courts, not in the U.S. 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 applicable statute. The idea is that Congress has recognized that there will be cases where the Vacancies 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.

21:49And 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 litigants seek a stay or preliminary injunction or a TRO and the court has to assess the likelihood of the merit, I don't think that's quite the same here.

22:39The 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 Ms. Grace under 540-60. But I'm not reading into that action that they think that this litigation is going to succeed. Just 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 stuff 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.

23:32It'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 Sarconi, who was the interim U.S. attorney for the Albany-based Northern District of New York? It had some similarities. So he had been picked to be the interim U.S. attorney. I will say both Sarconi and Habba seems like they were picked by the president to be the interim U.S. attorney. And one interesting wrinkle is Section 546 actually says the attorney general is supposed to pick, not the president.

24:13I 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 yes, so he was picked as interim U.S. attorney. And there, the district court didn't pick him, but didn't pick anyone else. So the Northern District of New York just didn't exercise their statutory authority to name an interim U.S. 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.

24:51And so again, kind of by default, he becomes the acting U.S. attorney. Now there, I do think there is a question, like, is this like the Ken Cuccinelli 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 U.S. attorneys. Now, I think it's fine. We have this case called Morrison v. Olson, where the Supreme Court upheld, with only Justice Scalia dissenting, the appointment of an independent counsel by a court panel.

25:37But it does raise certain separation of powers concerns. And actually, Justice Thomas, in his dissent 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.

26:26So even if they're upheld as a legal matter, there's now so much more oversight and worry, and there are 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 2017, the Supreme Court heard a case about the Federal Vacancies Reform Act, and it was actually about who could both be the acting and the nominee. And in oral argument, Justice Kagan asked the lawyer who wants there to be a Vacancies Act violation found, she says, why don't you just go out to the public and say the Vacancies Act has been violated?

27:07And 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 subsection of it. Thanks so much, Anne. That's Stanford Law School professor Anne Joseph O 'Connell. Coming up next on the Bloomberg Law Show, a mass exodus from the U.S. Attorney's Office in Los Angeles. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser.

27:46Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies. Bloomberg's Kyle Stock writes, as of June, Walmart has opened about 46 high-speed public charging stations with 380 cords. There are now EV chargers at about 326 of its U.S. stores, including adding this year four high-speed charging stations in Bentonville, Arkansas, even though the state has been a laggard in transitioning to electric vehicles. Walmart has hosted chargers from other companies since 2018. The big difference now?