Alina Habba has had a really bad week. First, the Eleventh Circuit, by Judge William Pryor of all people, affirmed a $1 million sanction against her and Trump for a frivolous defamation suit. Now, the Third Circuit affirmed her disqualification as Acting United States Attorney for the District of New Jersey, rejecting the Trump administration’s efforts to circumvent the law limiting unconfirmed officers from serving more than 120 days, or having the attorney general call them “special” (though “special” they may be) to circumvent the Federal Vacancies Reform Act.

Not only was this turn of events a foregone conclusion, but it created chaos in the courts for no better purpose than Trump wanted his former personal lawyer (before the million dollar sanction was affirmed, at least) to be rewarded with a cool title (bearing no relation to any legal work she had ever done before) no matter what.

No matter what? Well, sure, because he’s the president and the “president can do anything he wants to.” Former Judge Paul Cassell, in a lengthy but tendentious post at Volokh Conspiracy, doesn’t see a problem here, but sees a big problem with the Third Circuit’s holding.

In a nutshell, Senate Democrats have (for whatever reason) been slow-walking Trump Administration nominees for U.S. Attorney positions. While Senate Republicans have described these delaying tactics as “unprecedented“, the important point for this blog post is that the Administration has needed to find a way to put in place its legal teams in place U.S. Attorneys Offices around the country, such as in New Jersey.

Cassell goes on to recount the gimmicks employed to circumvent the law and lack of confirmation which has impaired the president’s authority to “put in place [his] legal team.”

To quickly recap, on July 24th of this year, the Trump administration took the following steps (as the Third Circuit recounts): (1) the President withdrew Habba’s then-pending nomination to be the U.S. Attorney for the District of New Jersey; (2) Habba resigned as the Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as “Special Attorney” to the Attorney General, accompanied by a letter authorizing Habba to conduct “any kind of legal proceedings . . . which United States Attorneys are authorized to  conduct” pursuant to 28 U.S.C. § 515; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a)(1). As a result of these moves, the  Administration contends that Habba is properly the Acting U.S. Attorney for the District of New Jersey.

To summarize the Third Circuit’s ruling, these gymnastics are a steaming pile of bullshit and can’t be used to avoid the text of the law and overcome the primary problem, that the Senate has failed to confirm Habba. She may be many things to Trump, but she is not the Acting, Interim or Special United States Attorney.

Cassell contends that he’s found a loophole in the circuit decision.

The Government argued to the Third Circuit that interpretations such as this one would undermine the proper functioning of the Executive Branch. The Circuit responded that it was not “tasked with resolving such policy concerns” (op. at 31). This response seems like a bit of a dodge, given the constitutional questions swirling in the background of this case. But, at the same time, the Circuit also seemed to endorse the Government’s view that it was “not aware of any powers of a U.S. Attorney that are not delegable”—that is, the Attorney General must be allowed to assign someone to make criminal charging decisions in New Jersey. Nothing in the opinion casts appears to cast doubt on the Attorney General’s ability to use her delegation authority to send criminal charging decisions to Habba.

In other words, AG Bondi could delegate some, but not all, United States Attorney powers to Habba, as the court only prohibited the wholesale delegation, not a piecemeal delegation. And this, Cassell contends, is the hole through which the Trump administration can drive a Tesla pickup.

As I’ve written before, the anomalous conclusion here would be to bar the Trump Administration from putting its own legal team in place to pursue the President’s priorities. The cleaving-responsibilities-workaround that I’ve discussed here—which was expressly offered by the Third Circuit to demonstrate the reasonableness of its opinion—reaches a sensible outcome of putting the President and the Attorney General in command of important Executive Branch decisions. However convoluted the path is to that bottom-line position, that position clearly seems like the right one.

Does the president have a right to his “own legal team” without regard to the constitutional requirement of Senate confirmation to provide some check on graft, abuse and incompetence, minimal though it may be? Do the laws matter or are they mere speed bumps on the executive’s road to the Golden Age? Should the court stand in the way of Alina Habba proclaiming herself United States Attorney if that’s what Trump, and his lapdog Bondi, want?

*Tuesday Talk rules apply.