1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:08,720 --> 00:00:12,040
Speaker 1: You may be familiar with Elena Haba from her vigorous

3
00:00:12,080 --> 00:00:16,320
Speaker 1: defense of President Donald Trump in three civil lawsuits in

4
00:00:16,360 --> 00:00:20,880
Speaker 1: New York which Trump lost, including a defamation suit brought

5
00:00:20,880 --> 00:00:22,480
Speaker 1: by writer Egene Carroll.

6
00:00:23,040 --> 00:00:25,119
Speaker 2: This is wrong, but we are in the state of

7
00:00:25,120 --> 00:00:25,560
Speaker 2: New York.

8
00:00:25,880 --> 00:00:27,280
Speaker 1: We are in a New York Jerry, and that is

9
00:00:27,320 --> 00:00:30,160
Speaker 1: why we are seeing these witch hunts, these hoaxes, as

10
00:00:30,160 --> 00:00:32,400
Speaker 1: he calls them, and this is another one of them.

11
00:00:32,560 --> 00:00:33,920
Speaker 2: Be brought in New York.

12
00:00:35,159 --> 00:00:37,760
Speaker 1: I was yelled at, and I've had a judge who

13
00:00:37,800 --> 00:00:40,080
Speaker 1: is unhinged slamming a table.

14
00:00:40,280 --> 00:00:41,200
Speaker 2: Let me be very clear.

15
00:00:41,240 --> 00:00:43,000
Speaker 3: I don't tolerate that in my life.

16
00:00:43,120 --> 00:00:44,480
Speaker 2: I'm not going to tolerate it here.

17
00:00:45,720 --> 00:00:49,760
Speaker 1: What we aren't witnessing today is the blatant and unapologetic

18
00:00:49,880 --> 00:00:55,600
Speaker 1: weaponization of the criminal justice system. Trump appointed Haba, who's

19
00:00:55,640 --> 00:00:59,560
Speaker 1: never worked as a prosecutor, as acting US Attorney for

20
00:01:00,400 --> 00:01:05,280
Speaker 1: in March, but both the state's Democratic senators opposed her nomination,

21
00:01:05,760 --> 00:01:09,600
Speaker 1: and she became the second Trump US attorney nominee to

22
00:01:09,720 --> 00:01:14,039
Speaker 1: fail to receive Senate confirmation. When Habba's one hundred twenty

23
00:01:14,120 --> 00:01:18,400
Speaker 1: day interim term expired. Federal judges in the state chose

24
00:01:18,440 --> 00:01:23,240
Speaker 1: her top assistant, Desiree Grace, to succeed her, but hours later,

25
00:01:23,440 --> 00:01:28,160
Speaker 1: Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi

26
00:01:28,240 --> 00:01:30,640
Speaker 1: then named her to be the chief Deputy in the

27
00:01:30,760 --> 00:01:35,360
Speaker 1: U s Attorney's Office, meaning she'll automatically inherit the title

28
00:01:35,480 --> 00:01:40,039
Speaker 1: of acting US Attorney for New Jersey. The procedural maneuvering

29
00:01:40,160 --> 00:01:43,959
Speaker 1: opens the door to legal challenges from defendants, and this week,

30
00:01:44,040 --> 00:01:48,080
Speaker 1: a defendant facing an August fourth trial on drug trafficking

31
00:01:48,160 --> 00:01:52,280
Speaker 1: and firearms related charges files such a challenge, asking that

32
00:01:52,360 --> 00:01:55,880
Speaker 1: his case be dismissed because Haba is no longer an

33
00:01:55,920 --> 00:02:00,440
Speaker 1: authorized US attorney. More such challenges are sure to be filed.

34
00:02:00,960 --> 00:02:04,920
Speaker 1: My guest is Stanford law professor and Joseph O'Connell, and

35
00:02:05,000 --> 00:02:09,000
Speaker 1: will you start by explaining the law around interim US

36
00:02:09,080 --> 00:02:10,200
Speaker 1: attorney appointments.

37
00:02:10,960 --> 00:02:15,680
Speaker 3: Sure, so, normally each district has a US attorney who's

38
00:02:15,800 --> 00:02:19,080
Speaker 3: nominated by the President and confirmed by the Senate, but

39
00:02:19,120 --> 00:02:23,200
Speaker 3: there are often incredible delays in that process. So Congress

40
00:02:23,320 --> 00:02:29,240
Speaker 3: has enacted two statutes that provide for temporary service of

41
00:02:29,400 --> 00:02:34,560
Speaker 3: US Attorney's wall, the traditional appointments process churns, so the

42
00:02:34,720 --> 00:02:39,280
Speaker 3: first way to get a temporary US attorney is through

43
00:02:39,320 --> 00:02:43,560
Speaker 3: twenty eight USC. Five point forty six, and that allows

44
00:02:43,840 --> 00:02:47,960
Speaker 3: the Attorney General to pick what is called an interim

45
00:02:48,280 --> 00:02:51,600
Speaker 3: US attorney and that person can serve for one hundred

46
00:02:51,600 --> 00:02:54,960
Speaker 3: and twenty days, and then at the expiration of that

47
00:02:55,000 --> 00:02:58,560
Speaker 3: one twenty day period, the district court in that district

48
00:02:59,120 --> 00:03:03,200
Speaker 3: may doesn't have to May pick an interim US attorney

49
00:03:03,240 --> 00:03:07,520
Speaker 3: who can serve until someone is confirmed to the position.

50
00:03:08,040 --> 00:03:12,320
Speaker 3: There's also another statute that covers more than just US attorneys,

51
00:03:12,360 --> 00:03:15,440
Speaker 3: so five forty six just covers US attorneys. There's something

52
00:03:15,480 --> 00:03:18,840
Speaker 3: called the Federal Vacancy's Reform Act of nineteen ninety eight,

53
00:03:19,000 --> 00:03:22,919
Speaker 3: which is the latest in a long history of vacancies acts.

54
00:03:22,919 --> 00:03:26,280
Speaker 3: We've had them since the late eighteenth century. And the

55
00:03:26,440 --> 00:03:32,000
Speaker 3: Vacancy's Act allows acting US attorneys and also acting leaders

56
00:03:32,040 --> 00:03:35,480
Speaker 3: in a bunch of other positions, and they are there

57
00:03:35,480 --> 00:03:38,880
Speaker 3: are also time limits. There's no role for the district court.

58
00:03:39,440 --> 00:03:42,240
Speaker 3: And I would say maybe two of the biggest differences

59
00:03:42,360 --> 00:03:46,080
Speaker 3: between the five forty six statute just for US attorneys

60
00:03:46,080 --> 00:03:48,720
Speaker 3: and the Federal Vacancies Act of nineteen ninety eight are

61
00:03:48,920 --> 00:03:53,720
Speaker 3: the followings. So first, under five forty six, anyone can

62
00:03:53,760 --> 00:03:56,920
Speaker 3: be picked as the interim US Attorney by the Attorney

63
00:03:56,960 --> 00:04:00,240
Speaker 3: General and then by the District Court. The person doesn't

64
00:04:00,320 --> 00:04:03,400
Speaker 3: have to already be within the Department of Justice. That's

65
00:04:03,560 --> 00:04:06,720
Speaker 3: not true for the Federal Vacancy's Reform Act. For the

66
00:04:06,760 --> 00:04:10,640
Speaker 3: Federal Vacancy's Reform Act, there are three categories where people

67
00:04:10,680 --> 00:04:13,120
Speaker 3: can be drawn from and they all have to be

68
00:04:13,640 --> 00:04:16,680
Speaker 3: already within the government. And the second difference is that

69
00:04:16,880 --> 00:04:19,400
Speaker 3: under five p. Forty six you can both be the

70
00:04:19,400 --> 00:04:23,080
Speaker 3: interim and the nominee for the position, and under the

71
00:04:23,200 --> 00:04:28,039
Speaker 3: Vacancies Act, in very few circumstances you can be. But

72
00:04:28,120 --> 00:04:31,120
Speaker 3: in the circumstance in New Jersey, she couldn't both be

73
00:04:31,560 --> 00:04:34,360
Speaker 3: the acting US Attorney and the nominee.

74
00:04:35,160 --> 00:04:37,680
Speaker 1: So the one hundred and twenty days was running out

75
00:04:37,880 --> 00:04:43,159
Speaker 1: and New Jersey federal judges chose Habbah's hand picked first assistant,

76
00:04:43,560 --> 00:04:47,640
Speaker 1: Desiree Grace, to replace her, but within hours the Attorney

77
00:04:47,680 --> 00:04:52,120
Speaker 1: General fired Grace. Is the ag allowed to fire Grace

78
00:04:52,520 --> 00:04:54,880
Speaker 1: once the judges have appointed her.

79
00:04:55,760 --> 00:04:59,080
Speaker 3: No, so Attorney General Bondi could fire her from being

80
00:04:59,120 --> 00:05:03,520
Speaker 3: first assistant. That's within her powers. But although the Attorney

81
00:05:03,520 --> 00:05:06,240
Speaker 3: General is supposed to pick the US attorney in the

82
00:05:06,240 --> 00:05:10,200
Speaker 3: interim capacity under five forty six, she cannot fire someone

83
00:05:10,200 --> 00:05:12,320
Speaker 3: who is picked by the Court. And why is that

84
00:05:12,760 --> 00:05:16,200
Speaker 3: Because under constitutional law, the Supreme Court has held in

85
00:05:16,279 --> 00:05:20,560
Speaker 3: multiple cases that the power to remove follows the power

86
00:05:20,600 --> 00:05:25,039
Speaker 3: to appoint for these inferior offices, which US attorneys are,

87
00:05:25,560 --> 00:05:29,159
Speaker 3: unless Congress has specified otherwise. Now, under that rule, the

88
00:05:29,240 --> 00:05:32,800
Speaker 3: Court has appointed, so only the Court can remove. But

89
00:05:33,560 --> 00:05:37,040
Speaker 3: that runs up against another constitutional law principle about separation

90
00:05:37,120 --> 00:05:40,440
Speaker 3: of powers. So the Office of Legal Counsel has long

91
00:05:40,560 --> 00:05:43,680
Speaker 3: held that the president and only the president, can fire

92
00:05:43,880 --> 00:05:47,120
Speaker 3: a court appointed interim US attorney. And we saw this

93
00:05:47,279 --> 00:05:50,800
Speaker 3: happen in the first Trump administration when President Trump fired

94
00:05:50,880 --> 00:05:52,960
Speaker 3: Jeff Berman, and there was a bit of a skerfuffle

95
00:05:53,000 --> 00:05:56,400
Speaker 3: about it because initially it seemed as if Attorney General

96
00:05:56,440 --> 00:05:59,719
Speaker 3: bar was pushing him out, and finally it kind of

97
00:05:59,720 --> 00:06:03,200
Speaker 3: came down and the President got involved and Jeff Berman left,

98
00:06:03,560 --> 00:06:04,279
Speaker 3: So here.

99
00:06:04,200 --> 00:06:06,920
Speaker 1: The president could fire Grace with no problem.

100
00:06:07,200 --> 00:06:10,880
Speaker 3: That's right, And I think you could say that happened arguably.

101
00:06:11,080 --> 00:06:14,080
Speaker 3: I mean after Attorney General Bondi's ex post. I mean,

102
00:06:14,120 --> 00:06:17,520
Speaker 3: we're running government through ex posts. But after Attorney General

103
00:06:17,560 --> 00:06:20,680
Speaker 3: Pam Bondi's ex post, which doesn't talk about the president's

104
00:06:20,680 --> 00:06:24,560
Speaker 3: authority at all, Todd Blanche, who's the Deputy Attorney General,

105
00:06:24,680 --> 00:06:30,600
Speaker 3: says that pursue into presidential authority. They're firing Grace as

106
00:06:31,080 --> 00:06:34,120
Speaker 3: the court appointed a US attorney, and I think that's

107
00:06:34,240 --> 00:06:37,320
Speaker 3: probably enough. I mean, you could argue about the wording.

108
00:06:37,600 --> 00:06:40,360
Speaker 3: I mean, interestingly, I was fired by President Trump from

109
00:06:40,360 --> 00:06:44,000
Speaker 3: a part time position on January twenty first, and the

110
00:06:44,120 --> 00:06:48,719
Speaker 3: email that I received says, on behalf of President Donald J. Trump,

111
00:06:49,040 --> 00:06:52,280
Speaker 3: I was terminated for my position, So maybe you could

112
00:06:52,360 --> 00:06:55,040
Speaker 3: argue it wasn't truly the president firing. But I think

113
00:06:55,040 --> 00:06:57,440
Speaker 3: that most would think, at least functionally, the president has

114
00:06:57,480 --> 00:06:59,440
Speaker 3: fired Grace from the interim position.

115
00:07:00,080 --> 00:07:04,320
Speaker 1: The Trump administration did is withdrew her appointment to be

116
00:07:04,360 --> 00:07:07,160
Speaker 1: the US Attorney for New Jersey, so they allowed her

117
00:07:07,160 --> 00:07:10,800
Speaker 1: to resign as interim US Attorney, then appointed her as

118
00:07:10,920 --> 00:07:16,200
Speaker 1: first Assistant US Attorney, So that automatically means she's in

119
00:07:16,280 --> 00:07:19,920
Speaker 1: the role of acting US attorney for another two hundred

120
00:07:19,960 --> 00:07:20,880
Speaker 1: and ten days.

121
00:07:21,360 --> 00:07:24,280
Speaker 3: That's right. So there are these three pools or categories

122
00:07:24,320 --> 00:07:27,320
Speaker 3: I talked about, and the first pool under the Vacancy's

123
00:07:27,360 --> 00:07:29,840
Speaker 3: Act is the first assistant to the position is the

124
00:07:29,880 --> 00:07:33,600
Speaker 3: default acting official. There's no further action that has to

125
00:07:33,640 --> 00:07:36,840
Speaker 3: be taken by the president. So once she's slotted into

126
00:07:36,880 --> 00:07:41,960
Speaker 3: that first assistant position, she then becomes the acting US Attorney.

127
00:07:42,640 --> 00:07:45,520
Speaker 1: At the end of her two hundred ten days. Can

128
00:07:45,560 --> 00:07:48,760
Speaker 1: the Trump administration reappoint her?

129
00:07:49,320 --> 00:07:54,520
Speaker 3: No, Well, it's contested. Under five forty six. The administration

130
00:07:54,880 --> 00:07:59,280
Speaker 3: and previous administrations have done successive one hundred and twenty

131
00:07:59,360 --> 00:08:02,280
Speaker 3: day appointment. So in the District of DC, we had

132
00:08:02,440 --> 00:08:05,320
Speaker 3: ed Martin. Ed Martin was not picked. They then picked

133
00:08:05,360 --> 00:08:09,120
Speaker 3: a different person for another one hundred and twenty day service.

134
00:08:09,240 --> 00:08:13,640
Speaker 3: Jamie kiro So, I think, although Congress did not intend

135
00:08:13,640 --> 00:08:15,880
Speaker 3: it when they put back these time limits in two

136
00:08:15,920 --> 00:08:18,760
Speaker 3: thousand and seven into section five forty six, I think

137
00:08:18,800 --> 00:08:21,720
Speaker 3: you could probably do a successive one to twenty day appointment,

138
00:08:21,960 --> 00:08:24,880
Speaker 3: but under the Vacancies Act you can't. The language there

139
00:08:24,920 --> 00:08:28,600
Speaker 3: is clear that you can't just reappoint, right, you can't

140
00:08:28,640 --> 00:08:32,640
Speaker 3: just keep doing new two hundred and ten day acting officials.

141
00:08:32,679 --> 00:08:35,480
Speaker 3: And there's even a penalty provision in the Vacancies Act.

142
00:08:35,520 --> 00:08:39,080
Speaker 3: If you violate the time limits, certain actions can be

143
00:08:39,200 --> 00:08:41,200
Speaker 3: voided by the court, So that would give like a

144
00:08:41,240 --> 00:08:44,280
Speaker 3: boon to criminal defendants if she's served past the two

145
00:08:44,320 --> 00:08:46,320
Speaker 3: hundred ten days. Let me just say two things about

146
00:08:46,360 --> 00:08:48,800
Speaker 3: the two hundred ten days and how long she can serve.

147
00:08:49,240 --> 00:08:52,480
Speaker 3: Is that if there's a nomination pending, not of her right,

148
00:08:52,520 --> 00:08:55,120
Speaker 3: because she can't both be the first assistant acting and

149
00:08:55,400 --> 00:08:58,040
Speaker 3: the nominee. But if there's a nomination pending of someone else,

150
00:08:58,679 --> 00:09:01,960
Speaker 3: she can continue to or during the pendency of that nomination,

151
00:09:02,160 --> 00:09:05,400
Speaker 3: plus another two hundred and ten days if that nomination

152
00:09:05,520 --> 00:09:08,240
Speaker 3: is returned, and she can do it a second time. Right,

153
00:09:08,280 --> 00:09:11,000
Speaker 3: If there's a second nomination, she can serve through the

154
00:09:11,040 --> 00:09:13,960
Speaker 3: pendency of that second nominations and a final two hundred

155
00:09:13,960 --> 00:09:16,400
Speaker 3: and ten days at the end. The other thing I

156
00:09:16,400 --> 00:09:18,680
Speaker 3: would say is that everyone is assuming that she only

157
00:09:18,760 --> 00:09:21,680
Speaker 3: has two hundred and ten days to serve because they're

158
00:09:21,760 --> 00:09:24,440
Speaker 3: dating the vacancy from the end of the interim service.

159
00:09:24,720 --> 00:09:27,680
Speaker 3: But I do think there's an argument, likely not as strong,

160
00:09:28,280 --> 00:09:32,600
Speaker 3: that the vacancy actually dates from the start of the administration,

161
00:09:32,960 --> 00:09:35,120
Speaker 3: from when we kind of consider the departure of the

162
00:09:35,200 --> 00:09:38,360
Speaker 3: last Senate confirmed person, and under the Vacancy's Act, you

163
00:09:38,360 --> 00:09:42,640
Speaker 3: would have three hundred days from January twentieth, and so

164
00:09:43,120 --> 00:09:45,880
Speaker 3: that's like another thing about the time limits of her service.

165
00:09:46,040 --> 00:09:49,640
Speaker 1: It seems pretty obvious that the Trump administration wants her

166
00:09:50,040 --> 00:09:52,719
Speaker 1: in this position. Is there anything else they can do

167
00:09:52,800 --> 00:09:56,320
Speaker 1: so that she can be nominated again to be US Attorney?

168
00:09:56,640 --> 00:10:00,240
Speaker 3: So she can't both be the acting US Attorney and

169
00:10:00,280 --> 00:10:04,280
Speaker 3: the nominee. But I think we might look to the

170
00:10:04,320 --> 00:10:08,600
Speaker 3: Mark Esper situation in the first term of President Trump.

171
00:10:08,720 --> 00:10:12,120
Speaker 3: So Mark Esper had been confirmed to be one of

172
00:10:12,160 --> 00:10:14,679
Speaker 3: the service secretaries of the Defense Department. There was a

173
00:10:14,720 --> 00:10:16,559
Speaker 3: whole thing about who is going to be the next

174
00:10:16,640 --> 00:10:21,400
Speaker 3: Secretary of Defense. He became the acting Secretary of Defense.

175
00:10:21,760 --> 00:10:25,760
Speaker 3: President Trump decides, actually he wants Esbert to become the

176
00:10:25,800 --> 00:10:29,320
Speaker 3: next secretary, but he can't both be the acting and

177
00:10:29,360 --> 00:10:32,320
Speaker 3: the nominee for the Secretary of Defense position. So what

178
00:10:32,480 --> 00:10:36,000
Speaker 3: happened is the White House coordinated with the Senate so

179
00:10:36,080 --> 00:10:40,240
Speaker 3: that Mark Esper continue to serve as acting. Then they

180
00:10:40,280 --> 00:10:43,720
Speaker 3: submitted the nomination to the Senate. Mark Esper had to

181
00:10:43,800 --> 00:10:47,400
Speaker 3: step down being acting. Another acting came into the role

182
00:10:47,520 --> 00:10:50,120
Speaker 3: for a few days, they had coordinated with the Senate,

183
00:10:50,360 --> 00:10:53,480
Speaker 3: so the confirmation process took only a few days as

184
00:10:53,480 --> 00:10:56,720
Speaker 3: a formal matter, from the date of the official submission

185
00:10:57,000 --> 00:11:00,480
Speaker 3: to the actual confirmation. And so I wonder, I know

186
00:11:00,559 --> 00:11:03,600
Speaker 3: nothing about the machinations in the White House, but I wonder,

187
00:11:03,880 --> 00:11:07,240
Speaker 3: if they really want are in and their sufficient support

188
00:11:07,280 --> 00:11:11,000
Speaker 3: in the Senate, could they coordinate with Senate leaders so

189
00:11:11,080 --> 00:11:14,080
Speaker 3: that she steps down for a few days when the

190
00:11:14,120 --> 00:11:18,440
Speaker 3: Senate is ready to vote on a nomination. They then

191
00:11:18,679 --> 00:11:22,840
Speaker 3: formally submit a nomination again, and there's just a pause

192
00:11:22,880 --> 00:11:26,800
Speaker 3: of several days of her serving as the acting US Attorney.

193
00:11:27,200 --> 00:11:32,000
Speaker 1: But there's this centurial Senate custom called the blue slip,

194
00:11:32,280 --> 00:11:36,560
Speaker 1: and both New Jersey Democratic senators are against her nominations,

195
00:11:36,600 --> 00:11:38,240
Speaker 1: so they won't advance the blue slip.

196
00:11:38,679 --> 00:11:42,000
Speaker 3: Right, Clearly, Mark Esper had a lot more support, and

197
00:11:42,080 --> 00:11:46,439
Speaker 3: not just among Republicans. Second, would this be an opportunity

198
00:11:46,920 --> 00:11:50,480
Speaker 3: to make changes to the blue slip process when it

199
00:11:50,520 --> 00:11:52,320
Speaker 3: comes to the US Attorney position?

200
00:11:53,000 --> 00:11:57,160
Speaker 1: Coming up next? Disarray in New Jersey's federal criminal courts.

201
00:11:57,520 --> 00:12:01,600
Speaker 1: I'm June Grosso and you're listening to Bloomberg. Federal criminal

202
00:12:01,679 --> 00:12:05,319
Speaker 1: cases in New Jersey have been thrown into turmoil by

203
00:12:05,320 --> 00:12:10,040
Speaker 1: the controversy over whether Alina Habba, the acting US Attorney,

204
00:12:10,320 --> 00:12:14,959
Speaker 1: was legally appointed. Proceedings in federal criminal court have basically

205
00:12:15,000 --> 00:12:18,560
Speaker 1: been frozen as the controversy plays out. In the first

206
00:12:18,600 --> 00:12:21,600
Speaker 1: such case, a man's schedule to be tried on August

207
00:12:21,679 --> 00:12:26,360
Speaker 1: fourth on drug trafficking and firearms related charges is fighting

208
00:12:26,400 --> 00:12:29,960
Speaker 1: his prosecution on the grounds that Habba is no longer

209
00:12:30,000 --> 00:12:34,520
Speaker 1: an authorized US attorney and that prosecutors can't move forward

210
00:12:34,559 --> 00:12:38,800
Speaker 1: with the case without a validly appointed official. The Chief

211
00:12:38,920 --> 00:12:42,160
Speaker 1: Judge of the Third Circuit Court of Appeals has already

212
00:12:42,200 --> 00:12:45,920
Speaker 1: reassigned that case from a New Jersey judge to the

213
00:12:46,000 --> 00:12:49,560
Speaker 1: chief judge for the Middle District of Pennsylvania. It's surely

214
00:12:49,600 --> 00:12:52,880
Speaker 1: not the last such motion from a defendant facing federal

215
00:12:53,000 --> 00:12:56,559
Speaker 1: charges in New Jersey. I've been talking to Stamford law

216
00:12:56,600 --> 00:13:01,280
Speaker 1: professor and Joseph O'Connell and the defendant. One's first argument

217
00:13:01,960 --> 00:13:07,079
Speaker 1: is that Habbah's reappointment violates the Federal Vacancy's Reform Act

218
00:13:07,440 --> 00:13:11,360
Speaker 1: because it prohibits people whose nominations have been submitted to

219
00:13:11,400 --> 00:13:14,960
Speaker 1: the Senate from serving in an acting capacity for the

220
00:13:15,000 --> 00:13:20,360
Speaker 1: same office, regardless of a subsequent withdrawal of the nomination.

221
00:13:21,080 --> 00:13:24,640
Speaker 4: So the first claim is a statutory claim, and it's

222
00:13:24,640 --> 00:13:28,600
Speaker 4: about whether she can serve as the acting official under

223
00:13:28,640 --> 00:13:32,080
Speaker 4: the Federal Vacancy's Reform Act. And under the Federal Vacancy's

224
00:13:32,080 --> 00:13:35,480
Speaker 4: Reformat which is an incredibly complicated statute, it says that

225
00:13:35,600 --> 00:13:39,640
Speaker 4: someone cannot serve as an acting if quote, the President

226
00:13:39,840 --> 00:13:43,880
Speaker 4: submits a nomination of such person to the Senate for

227
00:13:43,960 --> 00:13:47,800
Speaker 4: appointment to such office end quote. So the argument that's

228
00:13:47,840 --> 00:13:52,680
Speaker 4: being made is that although the nomination was withdrawn at

229
00:13:52,720 --> 00:13:56,600
Speaker 4: some point, the President did in fact submit the nomination,

230
00:13:57,080 --> 00:13:59,920
Speaker 4: and under the language of the Vacancies Act, she cannot

231
00:14:00,120 --> 00:14:04,080
Speaker 4: be the acting US Attorney. Now, I think it's possible,

232
00:14:04,160 --> 00:14:07,160
Speaker 4: and the government's going to argue that that language can

233
00:14:07,200 --> 00:14:10,400
Speaker 4: be read another way. I mean, the verb on submission

234
00:14:10,559 --> 00:14:15,000
Speaker 4: is in present tense, right, the President submits a nomination,

235
00:14:15,200 --> 00:14:18,240
Speaker 4: so I think that can alternatively be read to say

236
00:14:18,280 --> 00:14:22,040
Speaker 4: that the nomination is pending. And so the withdrawal of

237
00:14:22,080 --> 00:14:26,200
Speaker 4: her nomination actually does permit her to be the acting

238
00:14:26,280 --> 00:14:30,400
Speaker 4: because she is no longer the nominee. But in the

239
00:14:30,480 --> 00:14:33,240
Speaker 4: chaotic net of events, this is going to have to

240
00:14:33,240 --> 00:14:38,160
Speaker 4: get litigated because both readings are plausible. I think the

241
00:14:38,160 --> 00:14:41,880
Speaker 4: government's reading is a bit better, but the other reading

242
00:14:42,160 --> 00:14:45,760
Speaker 4: is not ruled out. So that's the statutory claim that.

243
00:14:45,720 --> 00:14:47,840
Speaker 1: Hasn't been litigated before that issue.

244
00:14:48,360 --> 00:14:52,920
Speaker 4: I cannot think of an example where the President has

245
00:14:53,000 --> 00:14:57,400
Speaker 4: had to withdraw a nominations in order to allow someone

246
00:14:57,800 --> 00:15:00,400
Speaker 4: to be the acting under the Federal day can sees

247
00:15:00,440 --> 00:15:04,880
Speaker 4: re format I will say that in kind of lure

248
00:15:05,000 --> 00:15:07,840
Speaker 4: of the Vacancies Act, we think, well, so long as

249
00:15:07,880 --> 00:15:12,320
Speaker 4: a nomination is pending, in many circumstances, you can have

250
00:15:12,560 --> 00:15:13,520
Speaker 4: an acting official.

251
00:15:14,160 --> 00:15:19,200
Speaker 1: The second argument is that Hobba's reappointment violates twenty eight Usc.

252
00:15:19,480 --> 00:15:23,560
Speaker 1: Section five forty six D, saying that once an interim

253
00:15:23,680 --> 00:15:29,600
Speaker 1: US attorney statutory term expires without Senate confirmation, the exclusive

254
00:15:29,640 --> 00:15:33,480
Speaker 1: authority to appoint an interim us attorney shifts to the

255
00:15:33,520 --> 00:15:37,560
Speaker 1: district court, and that the Attorney General's dismissal of Grace

256
00:15:37,680 --> 00:15:43,000
Speaker 1: and reinstatement of Habba constitutes unlawful executive interference.

257
00:15:44,360 --> 00:15:46,960
Speaker 4: Yeah, so I can read this both as a statutory

258
00:15:47,040 --> 00:15:51,120
Speaker 4: claim and a constitutional claim. I think a statutory claim

259
00:15:51,200 --> 00:15:54,880
Speaker 4: is pretty hard because the language of five forty six

260
00:15:55,320 --> 00:15:59,360
Speaker 4: says that the district court you can appoint someone, not

261
00:15:59,480 --> 00:16:03,400
Speaker 4: that they have to appoint someone, and so it allows

262
00:16:03,400 --> 00:16:07,840
Speaker 4: the option of district court appointment, which under the appointments clause,

263
00:16:08,040 --> 00:16:10,480
Speaker 4: the Congress can choose a court of law as one

264
00:16:10,520 --> 00:16:14,360
Speaker 4: of the alternatives for selection of temporary officials for these

265
00:16:14,400 --> 00:16:20,000
Speaker 4: lower levels inferior offices. I do think that there's maybe

266
00:16:20,040 --> 00:16:24,000
Speaker 4: a linked constitutional claim, and that's the idea that once

267
00:16:24,080 --> 00:16:27,600
Speaker 4: the district court does exercise that power, so the power

268
00:16:27,640 --> 00:16:31,960
Speaker 4: is optional. But here they did exercise it. They chose misgrace,

269
00:16:32,280 --> 00:16:37,080
Speaker 4: and you could make the constitutional argument that once she's chosen,

270
00:16:37,680 --> 00:16:40,520
Speaker 4: the only way to remove her is by the person

271
00:16:40,560 --> 00:16:42,680
Speaker 4: who picked her, which is the court. This is the

272
00:16:42,720 --> 00:16:46,160
Speaker 4: idea that the power to remove follows the power to appoint. Now,

273
00:16:46,280 --> 00:16:49,080
Speaker 4: I do think there's an Office of Legal Counsel opinion

274
00:16:49,120 --> 00:16:53,960
Speaker 4: here that raises separation of powers issues, and OLLC has

275
00:16:54,160 --> 00:16:58,960
Speaker 4: appined claimed but the president can remove a district court appointment,

276
00:16:59,360 --> 00:17:02,680
Speaker 4: and I think that's probably right. I do think there

277
00:17:02,680 --> 00:17:07,200
Speaker 4: may be yet another legal issue incorporated, and that's whether,

278
00:17:07,440 --> 00:17:11,480
Speaker 4: given that we have Section five forty six, whether the

279
00:17:11,480 --> 00:17:15,800
Speaker 4: White House can even turn to the federal vacancy's reformat

280
00:17:16,000 --> 00:17:19,720
Speaker 4: This is an issue in President Trump's first term over

281
00:17:19,800 --> 00:17:23,240
Speaker 4: about who was the proper acting or temporary head of

282
00:17:23,240 --> 00:17:28,040
Speaker 4: the Consumer Financial Protection Bureau. We had Beander English kind

283
00:17:28,040 --> 00:17:31,920
Speaker 4: of came in under Dodd Frank's provision, a specific provision

284
00:17:32,320 --> 00:17:33,359
Speaker 4: about the CSPB.

285
00:17:33,880 --> 00:17:34,919
Speaker 2: But then we had Nick.

286
00:17:34,840 --> 00:17:38,880
Speaker 4: Mulbany, who came in under the Vacancies Act. They both

287
00:17:38,960 --> 00:17:42,120
Speaker 4: turned up to work the Monday after Thanksgiving and one

288
00:17:42,119 --> 00:17:45,800
Speaker 4: of the issues was, well, if there's a specific succession provision,

289
00:17:46,280 --> 00:17:50,879
Speaker 4: can you have the general Vacancies Act that's available? And

290
00:17:50,960 --> 00:17:54,680
Speaker 4: I think that can get litigated as well. I do

291
00:17:54,760 --> 00:17:58,080
Speaker 4: think that both are available, but it's tricky because the

292
00:17:58,160 --> 00:18:01,919
Speaker 4: Vacancy's Act says that it's cool. The exclusive means for

293
00:18:02,080 --> 00:18:05,520
Speaker 4: temporarily authorizing and acting official to perform an assumptions and

294
00:18:05,600 --> 00:18:08,960
Speaker 4: duties of at a covered office by the Vacancies Act.

295
00:18:09,400 --> 00:18:14,080
Speaker 4: But it also permits quote a statutory provision expressly end

296
00:18:14,160 --> 00:18:17,480
Speaker 4: quote to provide for an alternative. And so the question

297
00:18:17,640 --> 00:18:22,000
Speaker 4: is how do you read that exclusive language? And generally

298
00:18:22,080 --> 00:18:25,080
Speaker 4: the courts, not in the US Attorney context but in

299
00:18:25,119 --> 00:18:28,760
Speaker 4: other contexts have said, well, sort of in calling the

300
00:18:29,440 --> 00:18:34,240
Speaker 4: Vacancies Act the exclusive means, that's true unless there's another

301
00:18:34,320 --> 00:18:37,399
Speaker 4: apple gooble statute, the ideas that Congress has recognized that

302
00:18:37,440 --> 00:18:40,480
Speaker 4: there will be cases where the Vacancy's Reform Act is

303
00:18:40,520 --> 00:18:43,240
Speaker 4: actually non exclusive. So what does that mean that you

304
00:18:43,320 --> 00:18:46,359
Speaker 4: could actually have both? But I think that could also

305
00:18:46,440 --> 00:18:49,199
Speaker 4: play out as a claim. And all of this is

306
00:18:49,240 --> 00:18:53,720
Speaker 4: creating chaos and it's going to slow down the activity

307
00:18:54,040 --> 00:18:56,320
Speaker 4: of the U. S. Attorney's Office in New Jersey. I mean,

308
00:18:56,440 --> 00:18:58,560
Speaker 4: right now, it's essentially frozen.

309
00:18:59,480 --> 00:19:02,280
Speaker 1: This case was originally assigned, of course, to a judge

310
00:19:02,280 --> 00:19:05,520
Speaker 1: in New Jersey, but the Chief Judge of the Third

311
00:19:05,640 --> 00:19:09,240
Speaker 1: Circuit Court of Appeals has reassigned the case to a

312
00:19:09,359 --> 00:19:12,879
Speaker 1: judge in Pennsylvania. In fact, the chief Judge for the

313
00:19:12,920 --> 00:19:16,480
Speaker 1: Middle District of Pennsylvania, and the one sentence order said

314
00:19:16,480 --> 00:19:20,040
Speaker 1: the trial is being moved in the public interest. Does

315
00:19:20,080 --> 00:19:24,000
Speaker 1: that indicate that the Third Circuit's chief judge thinks there's

316
00:19:24,040 --> 00:19:25,080
Speaker 1: a problem here too.

317
00:19:25,840 --> 00:19:31,000
Speaker 4: Unlike when litigant speak a stay or pilmarian junction or

318
00:19:31,160 --> 00:19:34,800
Speaker 4: tro and the court has to assess the likelihood of

319
00:19:34,840 --> 00:19:37,760
Speaker 4: the merit, I don't think that's quite the same here.

320
00:19:38,000 --> 00:19:40,679
Speaker 4: The way I'm reading this is that this is not

321
00:19:40,800 --> 00:19:45,200
Speaker 4: a frivolous argument, and they want to figure it out

322
00:19:46,000 --> 00:19:50,199
Speaker 4: before they have any issues with sort of conflict or

323
00:19:50,240 --> 00:19:54,000
Speaker 4: perceptions of bias, because after all, it was the District

324
00:19:54,040 --> 00:19:58,440
Speaker 4: Court of New Jersey who chose msgrace under five forty sixty.

325
00:19:59,000 --> 00:20:02,800
Speaker 4: But I'm not reading into that action that they think

326
00:20:03,160 --> 00:20:07,280
Speaker 4: that this litigation is going to succeed, just that that

327
00:20:07,359 --> 00:20:11,280
Speaker 4: there are arguable claims and even if it's not going

328
00:20:11,359 --> 00:20:14,800
Speaker 4: to succeed, right, I actually think it's an uphill battle.

329
00:20:14,800 --> 00:20:16,760
Speaker 4: I'm not saying it won't succeed. I just think it's

330
00:20:16,800 --> 00:20:21,000
Speaker 4: an uphill battle against the government on these arguments. It's

331
00:20:21,040 --> 00:20:24,159
Speaker 4: going to slow step down, and it's going to change workload.

332
00:20:24,320 --> 00:20:28,000
Speaker 4: If all of that work in New Jersey then has

333
00:20:28,040 --> 00:20:31,560
Speaker 4: to be heard by district court judges in other districts,

334
00:20:31,760 --> 00:20:35,480
Speaker 4: it's just a mess. Even assuming the government is likely

335
00:20:35,520 --> 00:20:38,520
Speaker 4: to win in the end, it's still creating an incredible

336
00:20:38,520 --> 00:20:42,320
Speaker 4: amount of chaos. These various actions by the Trump administration.

337
00:20:43,240 --> 00:20:47,159
Speaker 1: Did something similar happen with John Sarcone, who was the

338
00:20:47,240 --> 00:20:52,399
Speaker 1: interim US Attorney for the Albany based Northern District of

339
00:20:52,440 --> 00:20:52,960
Speaker 1: New York.

340
00:20:53,760 --> 00:20:57,040
Speaker 3: It had some similarity, so he had been picked to

341
00:20:57,119 --> 00:21:00,280
Speaker 3: be the interim US attorney. I will say both Tony

342
00:21:00,359 --> 00:21:03,440
Speaker 3: and Haba. Seems like they were picked by the president

343
00:21:03,520 --> 00:21:06,280
Speaker 3: to be the interim US Attorney. And one interesting wrinkle

344
00:21:06,400 --> 00:21:09,960
Speaker 3: is Section five forty six actually says the Attorney General

345
00:21:10,000 --> 00:21:12,960
Speaker 3: is supposed to pick, not the president. I think, given

346
00:21:13,480 --> 00:21:16,680
Speaker 3: cabinet department control by the White House, I think it's fine.

347
00:21:16,680 --> 00:21:19,520
Speaker 3: But it's an interesting little wrinkle that criminal defendants might

348
00:21:20,119 --> 00:21:22,159
Speaker 3: be able to go after. But yeah, so he was

349
00:21:22,200 --> 00:21:25,640
Speaker 3: picked as interim US Attorney and they are the District

350
00:21:25,640 --> 00:21:28,480
Speaker 3: Court didn't pick him, but didn't pick anyone else. So

351
00:21:28,560 --> 00:21:32,800
Speaker 3: the Northern of New York just didn't exercise their statutory

352
00:21:32,840 --> 00:21:36,160
Speaker 3: authority to name an interim the US Attorney. And he

353
00:21:36,240 --> 00:21:40,280
Speaker 3: got himself named as special attorney to the Attorney General.

354
00:21:40,920 --> 00:21:45,760
Speaker 3: And then somehow, as I'm understanding the news reporting, got

355
00:21:45,880 --> 00:21:50,240
Speaker 3: that position to be named as the first assistant position,

356
00:21:50,400 --> 00:21:53,359
Speaker 3: and so again kind of by default, he becomes the

357
00:21:53,520 --> 00:21:56,840
Speaker 3: acting US Attorney. Now there, I do think there is

358
00:21:56,880 --> 00:21:59,960
Speaker 3: a question like, is this like the ken Kuchinelli situation.

359
00:22:00,280 --> 00:22:04,240
Speaker 3: Did we just create a new first assistant position in

360
00:22:04,280 --> 00:22:07,080
Speaker 3: the Northern District of New York? How did the succession

361
00:22:07,200 --> 00:22:10,360
Speaker 3: order get changed? I'd like to know a lot more

362
00:22:10,359 --> 00:22:13,880
Speaker 3: about what went down in the Northern District of New York.

363
00:22:14,080 --> 00:22:17,159
Speaker 3: I will say, in both these cases and in other cases,

364
00:22:17,200 --> 00:22:21,199
Speaker 3: it's a little weird to have a court role in

365
00:22:21,280 --> 00:22:24,720
Speaker 3: appointing US attorneys. Now I think it's fine. We have

366
00:22:24,800 --> 00:22:28,600
Speaker 3: this case called Morrison versus Olsen, where the Supreme Court

367
00:22:28,720 --> 00:22:32,960
Speaker 3: upheld with only Justice Scalia dissenting the appointment of an

368
00:22:33,040 --> 00:22:37,600
Speaker 3: independent council by a court panel. But it does raise

369
00:22:37,760 --> 00:22:41,520
Speaker 3: certain separation of powers concerns, and actually Justice Thomas, in

370
00:22:41,560 --> 00:22:45,200
Speaker 3: his descent in the Braidwood case this past term, has

371
00:22:45,240 --> 00:22:50,280
Speaker 3: a footnote saying that he thinks court appointed inferior executive

372
00:22:50,320 --> 00:22:53,639
Speaker 3: officers are unconstitutional, so that there should be sort of

373
00:22:53,640 --> 00:22:55,760
Speaker 3: no role for the Court in this process.

374
00:22:56,320 --> 00:22:59,920
Speaker 1: What's the downside for the Trump administration with this maneuvering.

375
00:23:00,840 --> 00:23:04,400
Speaker 4: I do think that these moves by the Trump administration

376
00:23:04,960 --> 00:23:07,960
Speaker 4: are legal, even if there are plausible arguments on the

377
00:23:08,000 --> 00:23:12,640
Speaker 4: other side. But the chaotic way it's being carried out

378
00:23:13,280 --> 00:23:20,000
Speaker 4: is shining public attention to the administration's choices for these positions,

379
00:23:20,560 --> 00:23:24,199
Speaker 4: to these temporary picks who normally don't get much attention

380
00:23:24,320 --> 00:23:27,639
Speaker 4: at all. So even if they're upheld as a legal matter,

381
00:23:28,080 --> 00:23:32,440
Speaker 4: there's now so much more oversight and worry, and they're

382
00:23:32,480 --> 00:23:37,200
Speaker 4: going to be consequences for the Trump administration later on.

383
00:23:37,760 --> 00:23:40,360
Speaker 1: And I have to say, this is such a confusing

384
00:23:41,200 --> 00:23:41,959
Speaker 1: legal area.

385
00:23:42,600 --> 00:23:46,400
Speaker 3: There's a great story. So in twenty seventeen, the Supreme

386
00:23:46,440 --> 00:23:49,560
Speaker 3: Court heard a case about the Federal Vacancy's Reform Act,

387
00:23:49,600 --> 00:23:51,439
Speaker 3: and it was actually about who could both be the

388
00:23:51,480 --> 00:23:55,560
Speaker 3: acting and the nominee and an oral argument, Justice Kagan

389
00:23:55,720 --> 00:23:58,800
Speaker 3: asks the lawyer who wants there to be a Vacancy's

390
00:23:58,800 --> 00:24:01,560
Speaker 3: Act violation found. She says, why don't you just go

391
00:24:01,680 --> 00:24:04,679
Speaker 3: out to the public and say the Vacancies Act has

392
00:24:04,720 --> 00:24:08,240
Speaker 3: been violated? And the lawyer looks at her and says,

393
00:24:08,280 --> 00:24:10,720
Speaker 3: because then I would have to explain the Vacancies Act.

394
00:24:11,600 --> 00:24:15,240
Speaker 3: And the courtroom burst into laughter. And there's something to that.

395
00:24:15,560 --> 00:24:18,240
Speaker 3: It's an incredibly complex statute.

396
00:24:18,560 --> 00:24:21,919
Speaker 1: Well, you certainly know every section and sub section of it.

397
00:24:22,040 --> 00:24:22,720
Speaker 1: Thanks so much.

398
00:24:22,760 --> 00:24:22,840
Speaker 2: An.

399
00:24:23,440 --> 00:24:27,479
Speaker 1: That's Stanford Law School professor and Joseph O'Connell coming up

400
00:24:27,520 --> 00:24:30,800
Speaker 1: next on the Bloomberg Law Show. A mass exodus from

401
00:24:30,840 --> 00:24:34,920
Speaker 1: the US Attorney's Office in Los Angeles. I'm June Grosso

402
00:24:35,040 --> 00:24:41,040
Speaker 1: and you're listening to Bloomberg. There's been a mass exodus

403
00:24:41,080 --> 00:24:44,680
Speaker 1: from the Los Angeles US Attorney's Office in the three

404
00:24:44,720 --> 00:24:48,320
Speaker 1: plus months that Bill Aselli has been running the office.

405
00:24:48,880 --> 00:24:53,280
Speaker 1: May Espoto Bloomberg Law LA Courts correspondent has written about

406
00:24:53,280 --> 00:24:56,639
Speaker 1: his tenure, and she joins me now start by telling

407
00:24:56,720 --> 00:25:01,840
Speaker 1: us how many prosecutors and from what levels have left

408
00:25:01,880 --> 00:25:04,280
Speaker 1: the office since he took the helm.

409
00:25:04,920 --> 00:25:07,800
Speaker 2: So since the beginning of the year the number that

410
00:25:08,160 --> 00:25:12,879
Speaker 2: our sources have reported to us is eighty eighty people

411
00:25:12,960 --> 00:25:15,119
Speaker 2: have left the office, which is about a third of

412
00:25:15,119 --> 00:25:19,399
Speaker 2: the legal staff. And they've been leaving from many different

413
00:25:19,480 --> 00:25:23,320
Speaker 2: levels of the office. They include the criminal chief, the

414
00:25:23,400 --> 00:25:27,040
Speaker 2: head of public corruption, the head of immigration enforcement, which

415
00:25:27,080 --> 00:25:30,879
Speaker 2: is especially noteworthy given that in June there were major

416
00:25:30,880 --> 00:25:35,359
Speaker 2: anti deportation protests in Los Angeles and a major immigration crackdown.

417
00:25:35,880 --> 00:25:38,520
Speaker 2: People who wouldn't have expected to leave the office and

418
00:25:38,600 --> 00:25:42,680
Speaker 2: have been part of it across many different presidential administrations.

419
00:25:42,680 --> 00:25:45,000
Speaker 2: Saying that this is too much you and.

420
00:25:44,960 --> 00:25:48,240
Speaker 1: Your colleague Ben Penn spoke to more than thirty current

421
00:25:48,359 --> 00:25:53,240
Speaker 1: and former employees at the office and other lawyers who

422
00:25:53,359 --> 00:25:56,760
Speaker 1: interact with them. Is part of the problem that Assie

423
00:25:57,000 --> 00:25:59,639
Speaker 1: has a strident way of communicating.

424
00:26:00,119 --> 00:26:02,320
Speaker 2: That's a good way of putting it, Yes, Ben and

425
00:26:02,359 --> 00:26:05,280
Speaker 2: I spoke with more than thirty people. They described him

426
00:26:05,280 --> 00:26:09,480
Speaker 2: as having a strident a communication style. They described him yelling.

427
00:26:10,080 --> 00:26:14,160
Speaker 2: So four of the current and former federal prosecutors who

428
00:26:14,240 --> 00:26:20,480
Speaker 2: spoke with Ben told him that as Day shouted blank

429
00:26:20,640 --> 00:26:23,760
Speaker 2: the Justice Manual at a team of his attorneys that

430
00:26:23,960 --> 00:26:27,320
Speaker 2: was pursuing a protest related indictment. You can fill in

431
00:26:27,359 --> 00:26:29,480
Speaker 2: the blank with whatever word of your choice, but it

432
00:26:29,520 --> 00:26:33,000
Speaker 2: was a colorful one. And that happened, according to these sources,

433
00:26:33,080 --> 00:26:36,760
Speaker 2: during a break from a presentation to a grand jury.

434
00:26:36,840 --> 00:26:39,760
Speaker 2: And what they told us is that a grand juror

435
00:26:39,920 --> 00:26:41,840
Speaker 2: actually overheard the exchange.

436
00:26:42,720 --> 00:26:45,919
Speaker 1: The old saying is that a prosecutor can get a

437
00:26:45,920 --> 00:26:49,439
Speaker 1: grand jury to indict a ham sandwich. But has the

438
00:26:49,480 --> 00:26:54,240
Speaker 1: office been having problems getting grand jurors to return indictments?

439
00:26:54,800 --> 00:26:58,199
Speaker 2: Right? That is something that La Times actually reported on

440
00:26:58,280 --> 00:27:02,320
Speaker 2: a few days before we did. We're seeing this kind

441
00:27:02,320 --> 00:27:05,480
Speaker 2: of surgeon grand jury denials, which is a bit rare

442
00:27:06,040 --> 00:27:08,639
Speaker 2: because they have a much lower bar of proof to

443
00:27:09,200 --> 00:27:11,920
Speaker 2: return indictments than a trial jury would need to convict.

444
00:27:12,680 --> 00:27:16,960
Speaker 2: And so a couple of the lawyers that Ben spoke

445
00:27:17,040 --> 00:27:22,520
Speaker 2: with said that if Sale is instructing prosecutors to take

446
00:27:22,600 --> 00:27:26,720
Speaker 2: these cases from an LA grand jury to an Orange

447
00:27:26,760 --> 00:27:31,040
Speaker 2: County grand jury that is in a more republican area

448
00:27:31,640 --> 00:27:34,400
Speaker 2: compared to blue Los Angeles.

449
00:27:35,080 --> 00:27:38,560
Speaker 1: When he first started, what kinds of cases was he

450
00:27:38,680 --> 00:27:39,679
Speaker 1: concentrating on.

451
00:27:40,760 --> 00:27:46,240
Speaker 2: Well, through it all, he's been emphasizing immigration enforcement. So

452
00:27:46,520 --> 00:27:51,399
Speaker 2: he has ramped up immigration enforcement in the Central District

453
00:27:51,480 --> 00:27:54,960
Speaker 2: of California in a way that our sources told us

454
00:27:55,600 --> 00:27:59,840
Speaker 2: not even his predecessor under the prior Trump administration did.

455
00:28:00,440 --> 00:28:07,359
Speaker 2: He's also been shifting away, reportedly from these corporate crime investigations.

456
00:28:07,680 --> 00:28:10,960
Speaker 2: And as we got into June and as Los Angeles

457
00:28:11,400 --> 00:28:17,240
Speaker 2: became this national story around immigration enforcement, these protest cases

458
00:28:17,560 --> 00:28:22,760
Speaker 2: started emerging, and not only did he, according to our sources,

459
00:28:22,960 --> 00:28:26,040
Speaker 2: push to make sure that they were prosecuted, he was

460
00:28:26,080 --> 00:28:30,480
Speaker 2: also posting the faces of people who had been arrested

461
00:28:30,480 --> 00:28:33,400
Speaker 2: in connection with the protest And a lot of the

462
00:28:33,600 --> 00:28:37,280
Speaker 2: tension that we reported on within the office is stemming

463
00:28:37,280 --> 00:28:40,280
Speaker 2: from his handling of these protest cases that are very

464
00:28:40,960 --> 00:28:42,840
Speaker 2: salient to Trump's space.

465
00:28:43,760 --> 00:28:48,160
Speaker 1: Asli was a prosecutor before, it's not that he doesn't

466
00:28:48,200 --> 00:28:49,360
Speaker 1: have experience here.

467
00:28:49,760 --> 00:28:56,320
Speaker 2: He worked in Los Angeles and riverside for the Central

468
00:28:56,320 --> 00:29:00,800
Speaker 2: District of California, and he left that job to take

469
00:29:00,840 --> 00:29:05,200
Speaker 2: a stint as a lawmaker in Sacramento. A state lawmaker,

470
00:29:05,440 --> 00:29:10,080
Speaker 2: he was known for getting into some yelling fights on

471
00:29:10,840 --> 00:29:12,160
Speaker 2: the floor. Up there.

472
00:29:12,760 --> 00:29:17,000
Speaker 1: There was a case against an LA resident for distributing

473
00:29:17,600 --> 00:29:21,880
Speaker 1: face shields to protesters. Explain how he went up to

474
00:29:21,960 --> 00:29:24,600
Speaker 1: main Justice to get that through.

475
00:29:25,960 --> 00:29:31,480
Speaker 2: So this is a resident named Alejandro Oriana, and he

476
00:29:31,640 --> 00:29:36,480
Speaker 2: was charged for distributing face shields to protesters. But sources

477
00:29:36,640 --> 00:29:39,720
Speaker 2: told Ben that A. Sailey had to go to the

478
00:29:39,760 --> 00:29:42,960
Speaker 2: top of the Justice Department to salvage the case because

479
00:29:43,080 --> 00:29:47,720
Speaker 2: layer after layer of the DOJ recommended against the charge.

480
00:29:48,040 --> 00:29:51,960
Speaker 2: The charge required consultation with the National Security Division in

481
00:29:52,160 --> 00:29:54,920
Speaker 2: Washington before it could go to a grand jury. The

482
00:29:54,960 --> 00:29:58,200
Speaker 2: head of NSC recommended against bringing the charge to a

483
00:29:58,200 --> 00:30:02,120
Speaker 2: grand jury. Then he went to the Deputy Attorney General's

484
00:30:02,160 --> 00:30:06,320
Speaker 2: office and the dad's office did give him the green light.

485
00:30:06,760 --> 00:30:12,920
Speaker 1: Your story reveals several instances where he refused to follow recommendations,

486
00:30:13,360 --> 00:30:16,440
Speaker 1: including in a case involving a Walmart employee.

487
00:30:17,320 --> 00:30:21,680
Speaker 2: Right he went over the office supervisor's advice, according to

488
00:30:21,840 --> 00:30:25,720
Speaker 2: our sources, not to charge this twenty year old Walmart

489
00:30:25,760 --> 00:30:30,760
Speaker 2: employee for assaulting and immigration officer. At that point, video

490
00:30:30,800 --> 00:30:34,400
Speaker 2: of the arrest was going viral suggesting that the Border

491
00:30:34,440 --> 00:30:38,720
Speaker 2: Patrol agents were the ones using physical force against the

492
00:30:38,760 --> 00:30:43,080
Speaker 2: Walmart employee, who was a US citizen, and an FBI

493
00:30:43,240 --> 00:30:47,920
Speaker 2: agent said there was not enough evidence, according to our sources,

494
00:30:48,000 --> 00:30:51,960
Speaker 2: and declined to sign a complaint. Within a day, another

495
00:30:52,120 --> 00:30:55,719
Speaker 2: agent signed off on a different charge, but the social

496
00:30:55,760 --> 00:30:59,720
Speaker 2: media post from a saie asserting the employee would be

497
00:30:59,760 --> 00:31:02,320
Speaker 2: charged with punching an agent is still on x.

498
00:31:02,880 --> 00:31:07,680
Speaker 1: Also, I remember this case where there was an excessive force,

499
00:31:07,760 --> 00:31:13,120
Speaker 1: a felony excessive force conviction against an LA County Sheriff's

500
00:31:13,160 --> 00:31:18,040
Speaker 1: Department deputy, and he reached a plea deal with him

501
00:31:18,280 --> 00:31:19,959
Speaker 1: after he'd already been convicted.

502
00:31:20,640 --> 00:31:23,800
Speaker 2: Right, So that case is one I've been in the

503
00:31:23,840 --> 00:31:29,320
Speaker 2: courtroom for a few times. This is deputy named Discovered Kirk,

504
00:31:30,000 --> 00:31:33,600
Speaker 2: and he was convicted by a jury of felony excessive

505
00:31:33,680 --> 00:31:37,959
Speaker 2: force for slamming a black woman to the ground in

506
00:31:38,160 --> 00:31:43,200
Speaker 2: a parking lot. And at first the office tried to

507
00:31:43,280 --> 00:31:48,120
Speaker 2: push his sentencing to August, which is after his interim

508
00:31:48,200 --> 00:31:52,720
Speaker 2: period would expire, and the judge declined to do so

509
00:31:52,960 --> 00:31:56,840
Speaker 2: and after that, the prosecutors asked the federal judge to

510
00:31:56,920 --> 00:32:02,480
Speaker 2: approve this post trial plea agreement that they were aiming

511
00:32:02,600 --> 00:32:05,560
Speaker 2: to use to reduce his conviction from a felony to

512
00:32:05,600 --> 00:32:11,719
Speaker 2: a misdemeanor and release him on probation. Ultimately, Kirk was

513
00:32:11,760 --> 00:32:17,840
Speaker 2: sentenced to four months and Kirk is appealing, but that

514
00:32:18,120 --> 00:32:21,959
Speaker 2: caused significant drama within the Los Angeles legal community. This

515
00:32:22,040 --> 00:32:24,640
Speaker 2: post child plea agreement is something that we don't see

516
00:32:24,720 --> 00:32:25,480
Speaker 2: very often at all.

517
00:32:26,440 --> 00:32:32,120
Speaker 1: President Trump has never formally nominated him to the position.

518
00:32:32,760 --> 00:32:37,960
Speaker 2: Correct, he will be named acting tomorrow, is what the

519
00:32:38,040 --> 00:32:41,480
Speaker 2: DJ has confirmed with US. Tomorrow being Wednesday, So.

520
00:32:41,440 --> 00:32:44,760
Speaker 1: That'll give him another two hundred and ten days in office.

521
00:32:45,000 --> 00:32:49,440
Speaker 1: And you reported that he's never acknowledged the term interim

522
00:32:49,520 --> 00:32:50,280
Speaker 1: in his title.

523
00:32:50,720 --> 00:32:54,719
Speaker 2: Correct. A couple of our sources said that he will

524
00:32:55,360 --> 00:32:58,200
Speaker 2: insist that he should be referred to as the US

525
00:32:58,280 --> 00:32:59,600
Speaker 2: Attorney no interim.

526
00:33:00,200 --> 00:33:03,959
Speaker 1: Well, now he'll receive a new acting appointment. And this

527
00:33:04,040 --> 00:33:08,600
Speaker 1: follows the same playbook the administration used Tuesday for Nevada's

528
00:33:08,640 --> 00:33:12,600
Speaker 1: top prosecutor. The maneuver under the vacancy's reformac to keep

529
00:33:12,640 --> 00:33:15,719
Speaker 1: the appointee for two hundred and ten days. It's the

530
00:33:15,720 --> 00:33:18,840
Speaker 1: fourth time this month that the Executive branch has moved

531
00:33:18,840 --> 00:33:24,280
Speaker 1: to retain a controversial chief prosecutor without the judiciary's approval.

532
00:33:24,720 --> 00:33:28,480
Speaker 1: Thanks so much, Maya. That's Bloomberg Law LA Courts correspondent

533
00:33:28,600 --> 00:33:31,320
Speaker 1: Maya Spodo, and that's it for this edition of The

534
00:33:31,360 --> 00:33:34,280
Speaker 1: Bloomberg Law Show. Remember you can always get the latest

535
00:33:34,360 --> 00:33:37,480
Speaker 1: legal news on our Bloomberg Law Podcast. You can find

536
00:33:37,480 --> 00:33:42,040
Speaker 1: them on Apple Podcasts, Spotify, and at www dot bloomberg

537
00:33:42,120 --> 00:33:45,920
Speaker 1: dot com, slash podcast Slash Law, and remember to tune

538
00:33:45,920 --> 00:33:49,160
Speaker 1: into The Bloomberg Law Show every weeknight at ten pm

539
00:33:49,240 --> 00:33:52,800
Speaker 1: Wall Street Time. I'm June Grosso and you're listening to

540
00:33:52,800 --> 00:33:53,360
Speaker 1: Bloomberg