Trump Gets Skewered as Desperate Appeal Backfires in Court

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2:57Michael Popok:This job as a Midas Touch legal commentator on the Legal AF channel, it has its benefits, like today. Like I get to report that Alina Haba is likely to lose at the Third Circuit Court of Appeals about her appointment as the New Jersey Attorney General because the three judge panel, two Bushes and one Obama were not buying whatever her lawyer was selling. And the lawyer that was selling was not named Alina Haba, but she was in the room for the hottest of hot benches. I've got the receipts. I've got the audio clips. You're going to hear about it here, so gather round. And then, as she was leaving the courtroom, Alina Habba lied to the American people and suggested that she made the oral argument at the Third Circuit Court of Appeals.

3:47Michael Popok:When she did not, it was a guy named Mr. Whitaker. The last time I heard Alina Habba argue anything was at the Second Circuit Court of Appeals about E. Jean Carroll's case with Donald Trump. And she got her head handed to her then. Wait till you hear what Judge Smith did at the oral argument today. It's going to make you very happy. I'm here on the Midas Touch Network and Legal AF. Let's dive into it. How did we get here? We got here because about two months ago, maybe a little bit longer, a just ordinary criminal defendant in New Jersey for a drug case decided, you know what? Why isn't Lena Habba my prosecutor?

4:26Michael Popok:Why is she signing indictments as the acting U.S. attorney for New Jersey when she wasn't properly appointed, while Donald Trump completely violated the many, many aspects of the appointment process, including the Vacancy Reform Act, which we call Section 546, and a bunch of other things. Why is she even allowed to indict anybody? So they filed a motion to disqualify her. And the Department of Justice laughed, and they intervened, and they filed motions. And you know what? It got assigned to a judge in the Middle District of Pennsylvania because if the lawyer who filed the motion was right, Alina Habba's new replacement in New Jersey would be picked by all the judges of the District Court of New Jersey, all 23 of them, who had already rejected Alina Habba when her first 120 days by statute ran out.

5:21Michael Popok:See, Donald Trump first tried to nominate her to be the U.S. Attorney for New Jersey when she got blocked by the two Democratic senators, Kim and Booker, he was stuck. So he appointed her, tried to appoint her initially as the interim or as the acting. They're like, that's fine. But under the statute, you get 120 days. Then when the 120 days ran out, he was stuck, except they said, no, we're going to do an end run around the statute. And everybody was like, how are they going to do this? We all watched with glee as they scrambled. And so what they did is first they withdrew her nomination, which she seems to have forgotten about today because of her social media posting, she still acts like she's been nominated and she's just waiting for her call to the Senate.

6:10Michael Popok:Newsflash, Alina, your nomination was pulled by Donald Trump. That's how you got here. In fact, if the appellate court reads your social media post, you're toast because you just admitted that you think you're still nominated. So Donald Trump, in reality, on planet Earth, Alina, withdrew your nomination, then fired the person who the judges had appointed as the U.S. attorney. And I give her a lot of credit. She was a Republican, non-Trumper, stood up, took the job. She had it for about 12 hours. Then Donald Trump fired her, made Alina Hobba the number two in the office, and then under the Vacancy Reform Act tried to elevate her to number one.

6:50Michael Popok:all to do an end run around the appointment clause of the U.S. Constitution. And then to add insult to injury or basically to confess that they were violating the statute, Pam Bondi, for good measure, like belt, belt, suspender, suspender, decided to also make her a special attorney with the powers, but not all the powers of the U.S. Attorney of New Jersey. Confused, you won't be when I'm done. So that happened. Department of Justice didn't like it. Alina Habba. Come on, Lena Habba is the completely unqualified, obscenely unqualified, unethical political hack that Donald Trump, you know, it's one of his office wives, likes to go with her to MAGA, you know, MMF fighting and all sorts of things as his escort, as his date.

7:38Michael Popok:And then, so they didn't like it. So they took an appeal. Now, the reason that motion got heard by the middle district of Pennsylvania judge who ruled against Haba, found that she was improperly appointed, is because there was a conflict between all of the judges of New Jersey, which refused to extend her 120 days and rejected her and appointed that second person and this motion. So that is up at the Third Circuit Court of Appeals. Three judge panel. We've got Judge Felipe Restrepo, an Obama appointee, Judge Fischer, and Judge Smith. It was really Fischer and Smith, the two Bush appointees, who led the way.

8:15Michael Popok:And you're going to hear it. And it started from the opening bell. First judge up, Judge Fisher, decided he was even going to question why Alita Habba's name is even on the brief. Let's play that clip. In this case, the executive branch admittedly took a series of precise and precisely timed steps not to evade or circumvent those mechanisms, but rather to be scrupulously careful to comply with them. Counsel, could I begin with a A question that is based upon my not having seen such a representation before, but when I picked up your moving brief, what we call the blue brief in this case, I was struck by the names on the brief.

9:01on the left, Elena Habba, acting U.S. attorney, and right underneath, special attorney. And of course, the usual question that a judge would ask is, which, what, who is this person, what actual position are they serving?

9:18Michael Popok:I've been an advocate in front of appellate courts, not the third, but I've argued in front of the second and the ninth and the 11th. It's tough. I give Whitaker a little bit of credit. He was sort of hanging on like it was a rodeo, and he had to stay on the Bronco for eight seconds or at some cowboy bar. But eventually, the crappiness of your opinion or a crappiness of your argument is going to catch up with you. So that's how it started. And it got hotter from there. Next, while Alina Abba is in the courtroom, one of the judges, I believe Judge Smith, then attacked her credentials, saying she was effectively inexperienced.

9:51Michael Popok:Let's play the inexperienced clip. The first assistant is absolutely a political appointee. And I think that is an extremely odd result. But there's some language. There's language in 3345 that would reference experience for the person. 90 days within the prior 365 days. So it's hard for me to see when I look at the total section itself. because it's, you know, it's it's not the best and most clearest statute that I've ever read. I'll I'll grant you that there's some confusion in it. But it does it does say to me that Congress had a very specific intent. They wanted an experienced person to be that acting officer.

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12:10Michael Popok:And he asked for a rebuttal. See, when you get your time to argue, you can reserve a certain amount of time. It's up to you. You can reserve a certain amount of time for rebuttal. I think the most time I've ever reserved for rebuttal is like five minutes. Usually I reserve three minutes. He reserved three or four minutes, and he got his head handed to him in front of HABA during the rebuttal by Judge Smith. In fact, it all started when he triggered the court. I'm talking about the lawyer for the Department of Justice. When he triggered the court, especially Judge Smith, by making an accusation that this was all because people were against Alina Habba.

12:44Michael Popok:Judge Smith decided to take him to the woodshed on that and go through the entire recitation of how he got here with all the ways that Donald Trump violated the statute. Let's play that clip. The attorney general hereby delegated me, Mr. Whitaker, and I do hate to interrupt, but are you suggesting anything more than just a recitation of the history here when you said, and nothing like that had happened until Alina Habba was nominated. Well, I guess one thing that I have been very much aware of and would have said before my own questioning began is that Ms. Habba, nothing about this involves, in my view, Ms.

13:29Habba personally. This is about the statutes. This is about the separation of powers. This is about an important position. within the firmament of our government. This is about process, which is what the system that we operate under every day is all about, whether it's due process or whether it's just process provided by procedural rules or substantive law. And so I just want to say that, and I'm sure my colleagues agree that this is not a personal thing. So I wanted to give you an opportunity to indicate whether that was your suggestion or not. No, Your Honor. I guess my suggestion is that the government, what the government has done here with Alina Haba is consistent with longstanding practice.

14:22And in many of those instances, that practice went unchallenged. Oh, all right. All right. Since you said that, I do have to ask you this. I've heard your argument about consistency, and I didn't think that you would say that. But indulge me, please, with this recitation of my understanding of the recent history here and tell me where I'm wrong. And I may be at some point. We go back to March 24th and the president announces on Truth Social that Ms. Hubba will be our interim U.S. attorney for the District of New Jersey. effective immediately. Now, he was wrong about effective immediately, I believe, right?

15:06Well, I think the president was not speaking in lawyerly terms, but I think the president was in effect. Dates are something that we can refer to and not have to be a lawyer, but let's skip over that. I don't want to get into a side argument. And then Attorney General Bondi swears in Ms. Habe as the interim U.S. attorney. And then on June 30, there is, I believe, nomination by the president of Ms. Haba to be the United States attorney. 120 days lapse on July 1. After that, one of the issues in one of the cases here is the signature of Ms. Haba on the indictment, not of great concern to what's before us right now.

15:53On July 22nd, 120 days elapsed after the truth social announcements I just referenced a minute ago. Next, the district court appoints Desiree Grace, first assistant is the U.S. attorney, effective July 22, or upon expiration of 120 days after the appointment is Ms. Habba. Grace, of course, is terminated from the DOJ. Attorney General Bondi announces on X that Grace has just been removed. The president withdraws the Hubba USA nomination. Ms. Hubba resigns as the interim United States attorney. And then Attorney General Bondi appoints Ms. Hubba special attorney to the attorney general with authorization to conduct all proceedings that USAs may conduct.

16:46and we've gone over the statute that seems to be within her province. Then Attorney General Bondi appoints Ms. Haba to a first assistant position vacated by Grace, and then Ms. Haba purports to automatically elevate the acting U.S. attorney by virtue of being the first assistant U.S. attorney because the USA role was vacant. Was there anything in my recitation of this series of events that was inaccurate? I don't believe so, Your Honor. But with that said, having said and told us numerous times how how common practice has played into this. And I don't care about dates. I don't care about names.

17:29Can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney?

17:44Michael Popok:So you be the judge. How do you think that's going to turn out? Well, let me short circuit this for a minute. I am reasonably confident that the three judge panel of the Third Circuit Court of Appeals is going to find that Alina Habba was in violation of a statute illegally appointed to be the U.S. attorney for New Jersey. If that's the case, everything she touched, including all of these indictments or anything else, are invalid. We call it void ab ab initio. It just doesn't apply to this particular guy's case, the drug dealer. It applies to everybody else. That's why there's been such chaos in New Jersey.

18:19Michael Popok:Trials have been delayed. Sentencings have been delayed because the federal judges who all opposed Alina Haba and did not appoint her for an extended period of time are like, yeah, we're not going forward with anything. Who's this representative in that office? If the office is being headed by somebody that's illegal, then we're not going to respect anybody that sits under that person. Now, what the Washington, Todd Blanch's of the world could have done is countersign, which they started to do in the beginning, everything. So it's a Lindsay. Sorry, they would say Alina Haba and then countersign somebody in Washington that is validly confirmed by the Senate.

18:59Michael Popok:But they got tired of doing that. And there's too many motions. There's thousands of defendants in the U.S. attorney's office. There's also a civil division that handles civil cases, non-criminal cases. There's a lot going on. I think it's the fifth largest, third or fourth, I think it's number five, the fifth largest U.S. attorney's office in America. And it sits right next to New York and Manhattan. There's a lot of stuff that goes on in New Jersey. And so that's what I think they're going to rule. Now, that's it. After they rule, which, you know, give them a month. I think before Thanksgiving, Alina Habba is going to be disqualified.

19:33Michael Popok:And then there's going to be an appeal that's going to get taken up to the United States Supreme Court. And they're going to have to decide not just for Alina Hava, but Lindsey Halligan. There's a new motion filed today against Lindsey Halligan. We're talking about an illegal AF in the Midas Touch all day in the Eastern District of Virginia case that she was appointed through a different way, but equally wrong. And so there's a new motion by Comey's lawyers. There'll be a new motion by Letitia James's lawyers, all attacking the way these people, Halligan and Lena Hava and others have been appointed.

20:06Michael Popok:We got one in New York, the Northern District of New York, John Sarconi. We got one in Vegas. There's about six or eight different U.S. attorneys because Donald Trump refuses to go the normal route and just pick a normal person, even a Republican, normal person to be the U.S. attorney. No, he's got to pick these firebrand, you know, pugilistic, partisan hack, MAGA MAGA. And even his own people in the Senate are like, yeah, no, we're not. They're not getting confirmed. And they're getting blocked by the by the senators of their state. The way it currently works and has for 200 years is that the the senators of your state for which you are the U.S.

20:49Michael Popok:attorney in one of the districts or the whole state, depending upon the size of the state. has to both return their blue slip, which is their consent to let this nominee go to a vote. Well, in New Jersey, where Alina Habba is trying to be the U.S. attorney, it's two Democrats. And of course, Alina Habba in her 120 days could have just kept her head down, not been a complete you-know-what, and gotten the job. But no, she demonstrated that she was Alina Habba, right? She can't grow a brain in 120 days or ethics or morals or legal acumen or prowess. So the two, Kim and Booker, were like, no. And so she never got her nomination.

21:34Michael Popok:Now, let me put up on the board her social media posts. Now that you've heard the story, and now you'll see how she lied to the American people as she was coming out of the courtroom. I'll read it to you, and then I'll tell you where she's lied. I think you'll be able to figure out. You can put it in comments. I just left court advocating on behalf of 26 U.S. attorney candidates who have been denied the opportunity for a Senate hearing. See, it's 26. What's the first lie? What's the first Pinocchio for Alina Haba that she left court where she was advocating on behalf? She sat in a chair. She sat in a chair next to Mr.

22:13Michael Popok:Whitaker. Okay. And the last time she advocated the Second Circuit, she lost for Donald Trump and E. Jean Carroll about privilege. Okay. So that's first. Here's the second lie as she attacks the blue slip tradition. To date, I've not had so much as a single conversation. I don't know if anybody's told Alina Habba or she didn't figure out that she's not, her nomination's been pulled. I think if the judges see this, they're going to be like, she doesn't even know how she got the job. You heard Judge Smith talk about her nomination getting pulled. To date, have not had so much as a single conversation with New Jersey senators, despite repeated outreach.

22:52Michael Popok:That's not how the process should work. Still, that will not stop the Department of Justice from continuing the meaningful progress we've made under this administration. Is she watching the same Department of Justice as I am and the wrecking ball that Donald Trump has taken to it?

23:09Michael Popok:So I think that's bad for her as well. But we're going to continue you to follow it all. We do it here on the Midas Touch Network and Legal AF. I mean, I do about 40 videos a week of analysis. Come over to Legal AF YouTube channel. I think you're going to love it. It's 10 videos a day. I usually do the first four at the intersection of law and politics. Look what we have to keep up with. And then to really keep up with it, I do Legal AF Substack and Substack Live. And for seven bucks a month, you can become a member. People say, how can we help keep Legal AF on the air? We love your content. We love your interviews.

23:40Michael Popok:We love the analysis of all your commentators. How do we do it, Popak? Seven bucks a month on Substack for Legal AF. That's how you do it. So until my next report, which should be any hour now, 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. 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.

24:15Michael Popok:We got some new reporting. We got interviews. We got ad-free versions of the podcast. And hot takes, where? Legal AF on Substack. Come over now to free subscribe.

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