Trump Appeal Shredded by Judges as Habba Gets Tossed

0:00Seriously, why aren't Democrats in Washington doing more to stop Trump? I know. Have you heard about Phil Weiser in Colorado, though? No. Is he different? Yeah. A.G. Weiser sued the Trump administration 65 times. He's beating Trump in court again and again. Things like protecting Obamacare against Trump's illegal tariffs. And he even won against Ticketmaster. So he actually gets results. Exactly. As governor, Phil will fight for Colorado. Paid for by Phil Weiser for Colorado Registered Agent Anna Noskezi. This episode is brought to you by Fox one. Watch all 104 matches of the FIFA world cup live in 4k for just$19.99 a month with three days free.

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1:39Restrictions apply. See full terms at fanduel.com slash sportsbook. Gambling problem? Call 1-800-GAMBLER or 1-800-MY-RESET. Seriously, why aren't Democrats in Washington doing more to stop Trump? I know. Have you heard about Phil Weiser in Colorado, though? No. Is he different? Yeah. A.G. Weiser sued the Trump administration 65 times. He's beating Trump in court again and again. Things like protecting Obamacare against Trump's illegal tariffs. And he even won against Ticketmaster. So he actually gets results. Exactly. As Governor, Phil will fight for Colorado. Paid for by Phil Weiser for Colorado Registered Agent Anna Noskezi.

2:15Michael Popok:Sometimes when you're traveling, you got to hit the breaking news. We've got it now, folks. Alina Habba has been effectively fired or disqualified by the Third Circuit Court of Appeals in a unanimous decision by a three-judge panel. She's now been bounced as the U.S. attorney for New Jersey. Now it's going to end up at the doorstep of the Supreme Court of the United States. First stop on that train will be Sam Alito. I'm going to cover it all right here, including my theory that we were just moments away from getting this decision. after about four or five days ago, the 11th Circuit Court of Appeals down in Atlanta sanctioned her or affirmed Alina Habba's sanction of over a million dollars when she was a private attorney representing Donald Trump down in Florida with a bad faith filing against Hillary Clinton and others.

3:05Michael Popok:When that order came out, I said, that's the signal to the Third Circuit Court of Appeals. Any day now, we're gonna get a ruling. And we knew from the October, late October oral argument that this three judge panel, Two Republican appointees and one Democrat appointee were not buying anything that Alina Habba's lawyers were selling in terms of trying to validate her as the U.S. attorney for New Jersey. They found that she violated or they violated in putting her in a vacancy reform act. They also found that they violated the appointments clause and have now disqualified her. Similar to but not exactly the same as what happened four or five days ago to Lindsay Halligan, Donald Trump's other novice prosecutor who got appointed in Eastern District of Virginia, she got bounced by a trial court judge, District Court Judge Curry, for similar but not identical reasons.

3:58Michael Popok:But that's now 0 for 2 for Donald Trump to get his teacher's pets in to go after his political enemies. Remember when Alina Hava got in for the last six months or so, she's been going after the political rivals of Donald Trump. She went after the attorney general, Matt Placken, for New Jersey. She went after the governor of New Jersey, Murphy. She said she was going to turn the red state, should have turned the blue state of New Jersey red. A political hack. First 30, 40 days of her tenure, she arrested LaMonica MacGyver, a sitting member of Congress, for doing oversight work at a federal detention center in Newark.

4:36Michael Popok:She arrested and then dismissed the charges against Mayor Baraka, the mayor of the largest city of New Jersey, Newark. And that was just in the first six months, folks. But now we've got the Third Circuit ruling that we've been waiting for. I'm going to tell you how these three judges got together on this. It was a 3-0 decision. And it basically came down to a very simple fact. Alina Habba was not the first assistant U.S. attorney at the time the vacancy was created by Pam Bondi firing John Giordano, who was the previous U.S. attorney. It devolves, it goes down to the first assistant. They later tried to make Alina Haber the first assistant, but she wasn't at the time of the vacancy.

5:20Michael Popok:And that violates the statute, the Federal Vacancy Reform Act. And the three-judge panel here, very, very interesting. You had Judge Restrepo, who was appointed by Joe Biden. You had Judge Brooks Smith, who is a powerhouse in Pennsylvania, had been in the House and the Senate in Pennsylvania, ran for governor. He was also the chief judge of the Third Circuit at one point, now senior status. He was appointed by Ronald Reagan. And then you had Michael Fisher, who wrote the opinion for the three-judge panel, who was appointed by George Bush. And they start in the order, it's 32 pages, they start in the order, talking about the solemnity of the U.S.

6:03Michael Popok:attorney office. It's a powerful office. It's an important office. The people of the state of New Jersey and the workers that work in the Department of Justice and the U.S. attorney's office, the fourth or fifth largest in the country, deserve better. And then they end it with, you violated the Vacancy Reform Act and how they were appointed. And it's very, very simple. I'm going to read to you from the opinion. I'm going to post the opinion on Legal AF Substack for you as well. When Donald Trump got into office, God, it seems so long ago, but it was only 10 months ago. Look at the amount of damage one person could do as the president of the United States in such a short amount of time when he's got sycophants and enablers surrounding him.

6:41Michael Popok:There was a U.S. attorney in New Jersey. His name was Mr. Selinger. Mr. Selinger resigned before the inauguration, the beginning of January 2025. That made under the Vacancy Reform Act that the first assistant, Vikas Khanna, became the acting interim U.S. attorney. That lasted until the beginning of March when Pam Bondi fired Khanna and tried to appoint somebody under Section 546 named John Giordano to be, for another 120-day period, the U.S. attorney. I think that was already illegal, but the Third Circuit Court of Appeals panel didn't have to deal with Giordano's appointment. They only had to deal with Habba.

7:29Michael Popok:But I don't think that was legal under Section 546 either. Giordano makes it three weeks. Three weeks later, Donald Trump puts Alina Mahaba in at the same time that he nominates her for U.S. attorney. She gets blocked almost immediately through the blue slip process by the two New Jersey senators, Senators Cory Booker and Senator Kim. Blue slips mean you got to get both blue slips to accompany your nomination or you're not getting out of, you're not getting even brought to the Senate floor, which has burned Donald Trump up and made him go crazy. Then they decided they needed to withdraw her nomination to try to make her her own first assistant because under the Vacancy Reform Act, the first assistant becomes the U.S.

8:19Michael Popok:attorney, but it's not just any old off the street first assistant or a novice first assistant. It has to be somebody that's been in the job for over a year and has to have been in that first assistant chair for at least 90 days. So a year in the office and 90 days in that position before they can get elevated. Alina Habba met none of that criteria. She'd just been nominated. Look, I'm not sure, to be frank, I'm a 35-year federal practitioner. I don't think Alina Habba's ever really stepped foot in a federal court that often before she became friends with Donald Trump. And the one time that she publicly took over a case, she got sanctioned in a bad faith filing for filing a case against Hillary Clinton and the Democrats for Donald Trump down in Florida that just got affirmed four days ago by the 11th Circuit Court of Appeals.

9:04Michael Popok:As soon as I saw that, I said, that's greasing the skids for the Third Circuit's coming any day now, folks. I mean, that's a reminder that they've been sitting on that case. Everyone acts like they fully understand AI. And meanwhile, I'm over here arguing with my smart fridge. If you feel that way too, that's where Udacity comes in. This podcast is sponsored by Udacity. Want to learn skills that command high salaries? Udacity is an online learning platform with courses in AI and tech, including generative AI, agentic AI, Python, data science, and much more. Instead of wasting time on random YouTube videos or prompting chat GPT, Udacity cuts the guesswork so you learn exactly what matters.

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10:38Michael Popok:What I love most is that with Udacity, you're learning AI, but with real human support. Whenever I need help, there's someone there. And having a certification from Udacity really gets recruiters' attention. The tech field is always evolving, and you should be too. You can try Udacity risk-free for seven days. Head to udacity.com slash legal AF and use code legal AF for 40 % off your order. Once again, that's Udacity.com backslash Legal AF for 40 % off. And make sure you use my promo code Legal AF so they know I sent you. So that happened. Now, this is a different analysis than what just happened to Lindsay Halligan.

11:27Michael Popok:It's similar, but it's different. Here's that teachable moment you come to Legal AF for and the Midas Touch Network. The argument for Lindsay Halligan as interim U.S. attorney is that she was appointed under Section 546, but she was the second interim attorney appointed under Section 546 by Bondi. And that statute only allows one U.S. attorney, interim U.S. attorney under that statute. Then it goes in a split of separation of powers to the district court judges of that court system, which is the Eastern District of Virginia. Donald Trump didn't like that. And so he put her in anyway. So that was the issue there.

12:07Michael Popok:This is slightly different because this is about an acting U.S. attorney, not an interim U.S. attorney, and whether an acting U.S. attorney under the Vacancy Reform Act has to come from the existing first assistants in that office or it can come from an outsider who gets launched in to take over as their own first assistant. And the answer to that was no. Now, the results the same. Halligan out by a district court judge in Virginia. The indictment goes along with her because that's all she did. Here it's interesting because this case was brought by indicted drug and gun smugglers. so they wanted to get rid of Haba but Haba is not the one that signed their indictment so their indictment stays Haba goes that's that's another distinction between the Lindsay Halligan case and the Alina Haba case now let me read to you from the pertinent pages it's 32 pages but there's really just two pages that you need to to hear about I'll post the rest in Legal AF Substack for you to read this is on page five this is written by Judge Fisher the Bush appointee for the court.

13:20Michael Popok:Page five. The United States Attorney's Offices are some of the most critical agencies in the federal government. They play an important role in the criminal and civil justice systems and vital in keeping our community safe. The U.S. Attorney leading each office is an officer. His appointment requires Senate confirmation. Where a vacancy exists, Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office. It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place.

13:52Michael Popok:That's putting it mildly, folks. Its efforts to elevate its preferred candidate for U.S. attorney for the District of New Jersey, Alina Haba, to the role of acting U.S. attorney demonstrate the difficulties it has faced. Yet, the citizens of New Jersey and the local employees in the U.S. attorney's office deserve some clarity and stability. Then they go about analyzing why the defense is right and the prosecution is wrong. And here's how they ended on page 32. Very exquisitely simple. Sometimes the law is exquisitely simple.

14:33Michael Popok:Habba is not the acting U.S. attorney for the District of New Jersey by virtue of her appointment as first assistant U.S. attorney, because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the Federal Vacancy Reform Act. Additionally, because Habba was nominated for the vacant U.S. attorney position, the nomination, there's a provision of the Vacancy Reform Act called the nomination bar, meaning if you're nominated, you can't also serve in the acting position. It prevents her from assuming the role of acting U.S.

15:10Michael Popok:attorney. Finally, the attorney general's delegation of all the powers of a U.S. attorney to Haba is prohibited by the exclusivity provision. Therefore, we affirm the district court's disqualification order. Let me just let me just translate all of that for you for a moment. frustrated that they couldn't get Alina Habe in because she wasn't the proper first assistant at the time of the vacancy. Then they try to say, well, let's withdraw her nomination. All right. Well, she's screwed because she was nominated for the position that there's a nomination bar. And then Habe's Bondi said, I'll make her a special attorney with all of the powers.

15:49Michael Popok:Now, that is very similar to what she tried to do with Alina Habe, with Lindsay Halligan, same result. You can't do by special attorney delegation what you can't do by statute. You can't do it and run around a statute. That would totally mean the statute was completely basically null and void if you could ignore it. So they're saying, no, you can't make her a special attorney with all the powers of the U.S. attorney because there is an exclusivity provision. No, the court said if all you had to do was to nominate somebody or put them in as a special attorney with all of the same superpowers as an appropriate acting U.S.

16:32Michael Popok:attorney, that violates the exclusivity provision, meaning the statute was created as the exclusive mechanism to put that person into office. So you can't create a whole nother mechanism outside of that statute and then say, see, all better now. Okay. What's going to happen? It's very simple. Let's just go through what we know is going to happen. Donald Trump's going to lose his mind. I'm sure he has already by the time I'm done recording this. He'll start screeching and screaming in Truth Social. Pam Bondi will do the same, attacking these three middle of the road, two of which are conservative judges from Reagan and Bush times as being some sort of radical socialist, Marxist judges, then they're going to have to take their appeal.

17:19Michael Popok:They don't go further to talk about remedy because they didn't have to do remedy. They just disqualified her. There's an argument that now having been disqualified, they're going to leave it to each individual criminal case in New Jersey, because I don't know what she's been signing in the meantime. Those defendants are going to be making an argument now before judges that she's out. Everything she touched is void. Now, they tried to cover up for Alina Haba recently. They had other people signing pleadings and documents in that court, for that court. So some of it may be resolved. Goes up to the United States Supreme Court.

17:54Michael Popok:First stop on the train is Sam Alito. He's the one. He used to be a New Jersey judge. He gets to decide first. He can block this on his own administratively. He can send it on a shadow docket to the other eight people on the Supreme Court. And we're going to find out right away here if there's five votes to allow Donald Trump to do an end run around the Vacancy Reform Act. I'm sure there's going to be a separation of powers debate on the Supreme Court if they block it and keep her in office until they make some decisions down the road like they did recently for the Library of Congress. They may postpone it until they get around in January and December to make some other decisions about some other officers who have been fired and hired, or they're going to say, no, Donald Trump's gone too far, and we're going to not do anything about the order, and Alina Habba is out while the appeal continues.

18:45Michael Popok:We'll know relatively soon. I think this is a December event for the United States Supreme Court. Follow it here on the Midas Touch Network. Come on over to Legal AF YouTube. We could use your help now. Hummingbird Theory. We need everybody to come over. Hit the subscribe button. Find out if you're a subscriber or not on Legal AF YouTube as we make our way towards 1 million subscribers. So until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack.

19:18Michael Popok:You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes. Wear Legal AF on Substack. Come over now to free subscribe.

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