In yet another broken norm, the shenanigans employed by Attorney General Pam Bondi to put the most loyal and least qualified person behind the desk of the United States Attorney for the District of New Jersey have given rise to a problem. Who has the authority to prosecute criminal cases in the district?
Federal court proceedings throughout New Jersey were abruptly canceled on Monday because of uncertainty over whether Alina Habba had the authority to serve as acting U.S. attorney — a title she was given last week as her interim appointment as the state’s top federal prosecutor was about to expire.
Can some rando off the street walk into court and proclaim themself the United States Attorney? Of course not. It’s a position filled by the president with the advice and consent of the Senate, or by statute, whether interim or acting as the law provide. The problem is that Alina Habba, whose qualifications for the post are somewhat lacking beyond being Trump’s personal lawyer and dedication to her patron, has neither been confirmed nor satisfies the statutory criteria. She is, effectively, some rando off the street that Bondi has proclaimed to be US Attorney without benefit of law.
And judges in the District of New Jersey, who refused to appoint Habba pursuant to their authority under the Federal Vacancies Reform Act aren’t good with that.
Pretrial conferences and hearings set for defendants to enter pleas were called off, according to four lawyers who received word that their clients’ scheduled court appearances had been canceled. A grand jury that was expected to meet to consider indicting defendants on new criminal charges was put on hold. And a drug trial that was set to start Aug. 4 in Camden, N.J., was moved to Pennsylvania after a lawyer representing one of the defendants filed a motion arguing that Ms. Habba’s prosecutorial authority was unconstitutional.
What’s the difference, you might wonder? After all, whoever is United States Attorney, the same AUSAs are working the cases and they were lawfully appointed to their positions, so who cares whose name is at the top of the letterhead? Of course, what cases to take, who gets assigned to prosecute them and what outcomes are approved is entirely dependent on the authority of the United States Attorney. In other words, the operation of the office relies on the US Attorney’s exercise of discretion, and that discretion can’t be exercised by anyone without the authority to do so. And so a lawyer moved, and so the court responded.
Thomas Mirigliano, the lawyer who filed Monday’s legal motion challenging Ms. Habba’s authority, said the drug trial had been moved out of concern that the murkiness of Ms. Habba’s standing might undermine the proceedings.
In court, Judge Edward S. Kiel described Mr. Mirigliano’s motion as a “nonfrivolous argument” and indicated that other federal judges were prepared to temporarily halt court proceedings in New Jersey while the matter of Ms. Habba’s authority was being considered.
And the result has the potential to wreak havoc on the courts, and any proceedings that happen under Habba’s putative watch. Is it worth such havoc to play such games with the law just to put Trump’s “gal,” unqualified as she may otherwise be, into office? To Trump, it might well be.
In May, Ms. Habba, 41, charged Mayor Ras J. Baraka of Newark and Representative LaMonica McIver, both Democrats, after a clash with federal immigration agents outside a Newark detention center the officials were seeking to tour.
Ms. Habba had also directed prosecutors in her office to investigate New Jersey’s Democratic governor, Philip D. Murphy, and the state’s attorney general, Matthew J. Platkin, over a policy that limits how much help local police can provide federal immigration officers.
Would a United States Attorney with a shred of integrity be as willing to do Trump’s bidding and use her good offices to go after Trump’s enemies? But then, what of the actual criminal prosecutions for serious crimes that would otherwise move forward, but are now stymied because of Habba’s appointment by “irregular procedural maneuvers”?
It’s bad enough that the Justice Department under Trump has forsaken all independence and integrity, but atop being used as a weapon of political control and vengeance, the price of these shenanigans is that the ordinary criminal justice process has come to a screeching halt. Is pleasing Trump worth it? Is fealty to the guy who just diverted nearly a billion dollars from updating the nuke arsenal to the “free” plane he’ll take with him when he leaves office the price we pay for lawlessness? Or is the lawful appointment of a United States Attorney more important than yet another battle over circumventing the law to place a loyal Trump “gal” in place?
*Tuesday Talk rules apply.
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The hotel bar is awfully quiet this morning. I assume that’s because the answer is too obvious, that this is of no interest to anyone other than Trump and his fans. Other than the “Trump is president so he can do what he wants” crowd, what other reason could there be to tolerate this nonsense?
“Badges? Badges? We don’ need no esteenkin’ badges!”
A guy I once knew made an impassioned argument that the greatest of man’s achievements isn’t the enormous dams/ hydroelectric projects. It’s not the bridges spanning deep gorges and wide rivers. It’s not the technical complexities of a deep sea oil rig or a nuclear powered aircraft carrier. It is, he argued, the rule of law.
This is imperiled under Trump.
Under the past several presidents. Trump is just the most crass about it.
The First Circuit addressed related issues about 25 years ago when the District of Puerto Rico lacked a presidentially-nominated U.S. Attorney for some six years. See, e.g., US v Torres-Rosa, 209 F.3d 4 (1st Cir. 2000). Per cites in that opinion, the district judges in D.P.R. were divided in their views of how and whether the situation affected new and pending criminal cases.
As I recall, the district judges appointed an acting USA who was never replaced by a presidentially appointed interim USA and served for the six years.
The citation I offered was not the last and authoritative decision in the D.P.R. controversy: That was US v Hilario, 218 F.3d 19 (1st Cir. 2000). But yes, as you recalled, Scott, it involved the duration of an “acting” appointment, not a conflict between an “acting” appointment and an “interim” appointment.