WEBVTT - New Jersey Criminal Courts Frozen 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.720 --> 0:00:12.040 You may be familiar with Elena Haba from her vigorous 0:00:12.080 --> 0:00:16.320 defense of President Donald Trump in three civil lawsuits in 0:00:16.360 --> 0:00:20.880 New York which Trump lost, including a defamation suit brought 0:00:20.880 --> 0:00:22.480 by writer Egene Carroll. 0:00:23.040 --> 0:00:25.119 This is wrong, but we are in the state of 0:00:25.120 --> 0:00:25.560 New York. 0:00:25.880 --> 0:00:27.280 We are in a New York Jerry, and that is 0:00:27.320 --> 0:00:30.160 why we are seeing these witch hunts, these hoaxes, as 0:00:30.160 --> 0:00:32.400 he calls them, and this is another one of them. 0:00:32.560 --> 0:00:33.920 Be brought in New York. 0:00:35.159 --> 0:00:37.760 I was yelled at, and I've had a judge who 0:00:37.800 --> 0:00:40.080 is unhinged slamming a table. 0:00:40.280 --> 0:00:41.200 Let me be very clear. 0:00:41.240 --> 0:00:43.000 I don't tolerate that in my life. 0:00:43.120 --> 0:00:44.480 I'm not going to tolerate it here. 0:00:45.720 --> 0:00:49.760 What we aren't witnessing today is the blatant and unapologetic 0:00:49.880 --> 0:00:55.600 weaponization of the criminal justice system. Trump appointed Haba, who's 0:00:55.640 --> 0:00:59.560 never worked as a prosecutor, as acting US Attorney for 0:01:00.400 --> 0:01:05.280 in March, but both the state's Democratic senators opposed her nomination, 0:01:05.760 --> 0:01:09.600 and she became the second Trump US attorney nominee to 0:01:09.720 --> 0:01:14.039 fail to receive Senate confirmation. When Habba's one hundred twenty 0:01:14.120 --> 0:01:18.400 day interim term expired. Federal judges in the state chose 0:01:18.440 --> 0:01:23.240 her top assistant, Desiree Grace, to succeed her, but hours later, 0:01:23.440 --> 0:01:28.160 Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi 0:01:28.240 --> 0:01:30.640 then named her to be the chief Deputy in the 0:01:30.760 --> 0:01:35.360 U s Attorney's Office, meaning she'll automatically inherit the title 0:01:35.480 --> 0:01:40.039 of acting US Attorney for New Jersey. The procedural maneuvering 0:01:40.160 --> 0:01:43.959 opens the door to legal challenges from defendants, and this week, 0:01:44.040 --> 0:01:48.080 a defendant facing an August fourth trial on drug trafficking 0:01:48.160 --> 0:01:52.280 and firearms related charges files such a challenge, asking that 0:01:52.360 --> 0:01:55.880 his case be dismissed because Haba is no longer an 0:01:55.920 --> 0:02:00.440 authorized US attorney. More such challenges are sure to be filed. 0:02:00.960 --> 0:02:04.920 My guest is Stanford law professor and Joseph O'Connell, and 0:02:05.000 --> 0:02:09.000 will you start by explaining the law around interim US 0:02:09.080 --> 0:02:10.200 attorney appointments. 0:02:10.960 --> 0:02:15.680 Sure, so, normally each district has a US attorney who's 0:02:15.800 --> 0:02:19.080 nominated by the President and confirmed by the Senate, but 0:02:19.120 --> 0:02:23.200 there are often incredible delays in that process. So Congress 0:02:23.320 --> 0:02:29.240 has enacted two statutes that provide for temporary service of 0:02:29.400 --> 0:02:34.560 US Attorney's wall, the traditional appointments process churns, so the 0:02:34.720 --> 0:02:39.280 first way to get a temporary US attorney is through 0:02:39.320 --> 0:02:43.560 twenty eight USC. Five point forty six, and that allows 0:02:43.840 --> 0:02:47.960 the Attorney General to pick what is called an interim 0:02:48.280 --> 0:02:51.600 US attorney and that person can serve for one hundred 0:02:51.600 --> 0:02:54.960 and twenty days, and then at the expiration of that 0:02:55.000 --> 0:02:58.560 one twenty day period, the district court in that district 0:02:59.120 --> 0:03:03.200 may doesn't have to May pick an interim US attorney 0:03:03.240 --> 0:03:07.520 who can serve until someone is confirmed to the position. 0:03:08.040 --> 0:03:12.320 There's also another statute that covers more than just US attorneys, 0:03:12.360 --> 0:03:15.440 so five forty six just covers US attorneys. There's something 0:03:15.480 --> 0:03:18.840 called the Federal Vacancy's Reform Act of nineteen ninety eight, 0:03:19.000 --> 0:03:22.919 which is the latest in a long history of vacancies acts. 0:03:22.919 --> 0:03:26.280 We've had them since the late eighteenth century. And the 0:03:26.440 --> 0:03:32.000 Vacancy's Act allows acting US attorneys and also acting leaders 0:03:32.040 --> 0:03:35.480 in a bunch of other positions, and they are there 0:03:35.480 --> 0:03:38.880 are also time limits. There's no role for the district court. 0:03:39.440 --> 0:03:42.240 And I would say maybe two of the biggest differences 0:03:42.360 --> 0:03:46.080 between the five forty six statute just for US attorneys 0:03:46.080 --> 0:03:48.720 and the Federal Vacancies Act of nineteen ninety eight are 0:03:48.920 --> 0:03:53.720 the followings. So first, under five forty six, anyone can 0:03:53.760 --> 0:03:56.920 be picked as the interim US Attorney by the Attorney 0:03:56.960 --> 0:04:00.240 General and then by the District Court. The person doesn't 0:04:00.320 --> 0:04:03.400 have to already be within the Department of Justice. That's 0:04:03.560 --> 0:04:06.720 not true for the Federal Vacancy's Reform Act. For the 0:04:06.760 --> 0:04:10.640 Federal Vacancy's Reform Act, there are three categories where people 0:04:10.680 --> 0:04:13.120 can be drawn from and they all have to be 0:04:13.640 --> 0:04:16.680 already within the government. And the second difference is that 0:04:16.880 --> 0:04:19.400 under five p. Forty six you can both be the 0:04:19.400 --> 0:04:23.080 interim and the nominee for the position, and under the 0:04:23.200 --> 0:04:28.039 Vacancies Act, in very few circumstances you can be. But 0:04:28.120 --> 0:04:31.120 in the circumstance in New Jersey, she couldn't both be 0:04:31.560 --> 0:04:34.360 the acting US Attorney and the nominee. 0:04:35.160 --> 0:04:37.680 So the one hundred and twenty days was running out 0:04:37.880 --> 0:04:43.159 and New Jersey federal judges chose Habbah's hand picked first assistant, 0:04:43.560 --> 0:04:47.640 Desiree Grace, to replace her, but within hours the Attorney 0:04:47.680 --> 0:04:52.120 General fired Grace. Is the ag allowed to fire Grace 0:04:52.520 --> 0:04:54.880 once the judges have appointed her. 0:04:55.760 --> 0:04:59.080 No, so Attorney General Bondi could fire her from being 0:04:59.120 --> 0:05:03.520 first assistant. That's within her powers. But although the Attorney 0:05:03.520 --> 0:05:06.240 General is supposed to pick the US attorney in the 0:05:06.240 --> 0:05:10.200 interim capacity under five forty six, she cannot fire someone 0:05:10.200 --> 0:05:12.320 who is picked by the Court. And why is that 0:05:12.760 --> 0:05:16.200 Because under constitutional law, the Supreme Court has held in 0:05:16.279 --> 0:05:20.560 multiple cases that the power to remove follows the power 0:05:20.600 --> 0:05:25.039 to appoint for these inferior offices, which US attorneys are, 0:05:25.560 --> 0:05:29.159 unless Congress has specified otherwise. Now, under that rule, the 0:05:29.240 --> 0:05:32.800 Court has appointed, so only the Court can remove. But 0:05:33.560 --> 0:05:37.040 that runs up against another constitutional law principle about separation 0:05:37.120 --> 0:05:40.440 of powers. So the Office of Legal Counsel has long 0:05:40.560 --> 0:05:43.680 held that the president and only the president, can fire 0:05:43.880 --> 0:05:47.120 a court appointed interim US attorney. And we saw this 0:05:47.279 --> 0:05:50.800 happen in the first Trump administration when President Trump fired 0:05:50.880 --> 0:05:52.960 Jeff Berman, and there was a bit of a skerfuffle 0:05:53.000 --> 0:05:56.400 about it because initially it seemed as if Attorney General 0:05:56.440 --> 0:05:59.719 bar was pushing him out, and finally it kind of 0:05:59.720 --> 0:06:03.200 came down and the President got involved and Jeff Berman left, 0:06:03.560 --> 0:06:04.279 So here. 0:06:04.200 --> 0:06:06.920 The president could fire Grace with no problem. 0:06:07.200 --> 0:06:10.880 That's right, And I think you could say that happened arguably. 0:06:11.080 --> 0:06:14.080 I mean after Attorney General Bondi's ex post. I mean, 0:06:14.120 --> 0:06:17.520 we're running government through ex posts. But after Attorney General 0:06:17.560 --> 0:06:20.680 Pam Bondi's ex post, which doesn't talk about the president's 0:06:20.680 --> 0:06:24.560 authority at all, Todd Blanche, who's the Deputy Attorney General, 0:06:24.680 --> 0:06:30.600 says that pursue into presidential authority. They're firing Grace as 0:06:31.080 --> 0:06:34.120 the court appointed a US attorney, and I think that's 0:06:34.240 --> 0:06:37.320 probably enough. I mean, you could argue about the wording. 0:06:37.600 --> 0:06:40.360 I mean, interestingly, I was fired by President Trump from 0:06:40.360 --> 0:06:44.000 a part time position on January twenty first, and the 0:06:44.120 --> 0:06:48.719 email that I received says, on behalf of President Donald J. Trump, 0:06:49.040 --> 0:06:52.280 I was terminated for my position, So maybe you could 0:06:52.360 --> 0:06:55.040 argue it wasn't truly the president firing. But I think 0:06:55.040 --> 0:06:57.440 that most would think, at least functionally, the president has 0:06:57.480 --> 0:06:59.440 fired Grace from the interim position. 0:07:00.080 --> 0:07:04.320 The Trump administration did is withdrew her appointment to be 0:07:04.360 --> 0:07:07.160 the US Attorney for New Jersey, so they allowed her 0:07:07.160 --> 0:07:10.800 to resign as interim US Attorney, then appointed her as 0:07:10.920 --> 0:07:16.200 first Assistant US Attorney, So that automatically means she's in 0:07:16.280 --> 0:07:19.920 the role of acting US attorney for another two hundred 0:07:19.960 --> 0:07:20.880 and ten days. 0:07:21.360 --> 0:07:24.280 That's right. So there are these three pools or categories 0:07:24.320 --> 0:07:27.320 I talked about, and the first pool under the Vacancy's 0:07:27.360 --> 0:07:29.840 Act is the first assistant to the position is the 0:07:29.880 --> 0:07:33.600 default acting official. There's no further action that has to 0:07:33.640 --> 0:07:36.840 be taken by the president. So once she's slotted into 0:07:36.880 --> 0:07:41.960 that first assistant position, she then becomes the acting US Attorney. 0:07:42.640 --> 0:07:45.520 At the end of her two hundred ten days. Can 0:07:45.560 --> 0:07:48.760 the Trump administration reappoint her? 0:07:49.320 --> 0:07:54.520 No, Well, it's contested. Under five forty six. The administration 0:07:54.880 --> 0:07:59.280 and previous administrations have done successive one hundred and twenty 0:07:59.360 --> 0:08:02.280 day appointment. So in the District of DC, we had 0:08:02.440 --> 0:08:05.320 ed Martin. Ed Martin was not picked. They then picked 0:08:05.360 --> 0:08:09.120 a different person for another one hundred and twenty day service. 0:08:09.240 --> 0:08:13.640 Jamie kiro So, I think, although Congress did not intend 0:08:13.640 --> 0:08:15.880 it when they put back these time limits in two 0:08:15.920 --> 0:08:18.760 thousand and seven into section five forty six, I think 0:08:18.800 --> 0:08:21.720 you could probably do a successive one to twenty day appointment, 0:08:21.960 --> 0:08:24.880 but under the Vacancies Act you can't. The language there 0:08:24.920 --> 0:08:28.600 is clear that you can't just reappoint, right, you can't 0:08:28.640 --> 0:08:32.640 just keep doing new two hundred and ten day acting officials. 0:08:32.679 --> 0:08:35.480 And there's even a penalty provision in the Vacancies Act. 0:08:35.520 --> 0:08:39.080 If you violate the time limits, certain actions can be 0:08:39.200 --> 0:08:41.200 voided by the court, So that would give like a 0:08:41.240 --> 0:08:44.280 boon to criminal defendants if she's served past the two 0:08:44.320 --> 0:08:46.320 hundred ten days. Let me just say two things about 0:08:46.360 --> 0:08:48.800 the two hundred ten days and how long she can serve. 0:08:49.240 --> 0:08:52.480 Is that if there's a nomination pending, not of her right, 0:08:52.520 --> 0:08:55.120 because she can't both be the first assistant acting and 0:08:55.400 --> 0:08:58.040 the nominee. But if there's a nomination pending of someone else, 0:08:58.679 --> 0:09:01.960 she can continue to or during the pendency of that nomination, 0:09:02.160 --> 0:09:05.400 plus another two hundred and ten days if that nomination 0:09:05.520 --> 0:09:08.240 is returned, and she can do it a second time. Right, 0:09:08.280 --> 0:09:11.000 If there's a second nomination, she can serve through the 0:09:11.040 --> 0:09:13.960 pendency of that second nominations and a final two hundred 0:09:13.960 --> 0:09:16.400 and ten days at the end. The other thing I 0:09:16.400 --> 0:09:18.680 would say is that everyone is assuming that she only 0:09:18.760 --> 0:09:21.680 has two hundred and ten days to serve because they're 0:09:21.760 --> 0:09:24.440 dating the vacancy from the end of the interim service. 0:09:24.720 --> 0:09:27.680 But I do think there's an argument, likely not as strong, 0:09:28.280 --> 0:09:32.600 that the vacancy actually dates from the start of the administration, 0:09:32.960 --> 0:09:35.120 from when we kind of consider the departure of the 0:09:35.200 --> 0:09:38.360 last Senate confirmed person, and under the Vacancy's Act, you 0:09:38.360 --> 0:09:42.640 would have three hundred days from January twentieth, and so 0:09:43.120 --> 0:09:45.880 that's like another thing about the time limits of her service. 0:09:46.040 --> 0:09:49.640 It seems pretty obvious that the Trump administration wants her 0:09:50.040 --> 0:09:52.719 in this position. Is there anything else they can do 0:09:52.800 --> 0:09:56.320 so that she can be nominated again to be US Attorney? 0:09:56.640 --> 0:10:00.240 So she can't both be the acting US Attorney and 0:10:00.280 --> 0:10:04.280 the nominee. But I think we might look to the 0:10:04.320 --> 0:10:08.600 Mark Esper situation in the first term of President Trump. 0:10:08.720 --> 0:10:12.120 So Mark Esper had been confirmed to be one of 0:10:12.160 --> 0:10:14.679 the service secretaries of the Defense Department. There was a 0:10:14.720 --> 0:10:16.559 whole thing about who is going to be the next 0:10:16.640 --> 0:10:21.400 Secretary of Defense. He became the acting Secretary of Defense. 0:10:21.760 --> 0:10:25.760 President Trump decides, actually he wants Esbert to become the 0:10:25.800 --> 0:10:29.320 next secretary, but he can't both be the acting and 0:10:29.360 --> 0:10:32.320 the nominee for the Secretary of Defense position. So what 0:10:32.480 --> 0:10:36.000 happened is the White House coordinated with the Senate so 0:10:36.080 --> 0:10:40.240 that Mark Esper continue to serve as acting. Then they 0:10:40.280 --> 0:10:43.720 submitted the nomination to the Senate. Mark Esper had to 0:10:43.800 --> 0:10:47.400 step down being acting. Another acting came into the role 0:10:47.520 --> 0:10:50.120 for a few days, they had coordinated with the Senate, 0:10:50.360 --> 0:10:53.480 so the confirmation process took only a few days as 0:10:53.480 --> 0:10:56.720 a formal matter, from the date of the official submission 0:10:57.000 --> 0:11:00.480 to the actual confirmation. And so I wonder, I know 0:11:00.559 --> 0:11:03.600 nothing about the machinations in the White House, but I wonder, 0:11:03.880 --> 0:11:07.240 if they really want are in and their sufficient support 0:11:07.280 --> 0:11:11.000 in the Senate, could they coordinate with Senate leaders so 0:11:11.080 --> 0:11:14.080 that she steps down for a few days when the 0:11:14.120 --> 0:11:18.440 Senate is ready to vote on a nomination. They then 0:11:18.679 --> 0:11:22.840 formally submit a nomination again, and there's just a pause 0:11:22.880 --> 0:11:26.800 of several days of her serving as the acting US Attorney. 0:11:27.200 --> 0:11:32.000 But there's this centurial Senate custom called the blue slip, 0:11:32.280 --> 0:11:36.560 and both New Jersey Democratic senators are against her nominations, 0:11:36.600 --> 0:11:38.240 so they won't advance the blue slip. 0:11:38.679 --> 0:11:42.000 Right, Clearly, Mark Esper had a lot more support, and 0:11:42.080 --> 0:11:46.439 not just among Republicans. Second, would this be an opportunity 0:11:46.920 --> 0:11:50.480 to make changes to the blue slip process when it 0:11:50.520 --> 0:11:52.320 comes to the US Attorney position? 0:11:53.000 --> 0:11:57.160 Coming up next? Disarray in New Jersey's federal criminal courts. 0:11:57.520 --> 0:12:01.600 I'm June Grosso and you're listening to Bloomberg. Federal criminal 0:12:01.679 --> 0:12:05.319 cases in New Jersey have been thrown into turmoil by 0:12:05.320 --> 0:12:10.040 the controversy over whether Alina Habba, the acting US Attorney, 0:12:10.320 --> 0:12:14.959 was legally appointed. Proceedings in federal criminal court have basically 0:12:15.000 --> 0:12:18.560 been frozen as the controversy plays out. In the first 0:12:18.600 --> 0:12:21.600 such case, a man's schedule to be tried on August 0:12:21.679 --> 0:12:26.360 fourth on drug trafficking and firearms related charges is fighting 0:12:26.400 --> 0:12:29.960 his prosecution on the grounds that Habba is no longer 0:12:30.000 --> 0:12:34.520 an authorized US attorney and that prosecutors can't move forward 0:12:34.559 --> 0:12:38.800 with the case without a validly appointed official. The Chief 0:12:38.920 --> 0:12:42.160 Judge of the Third Circuit Court of Appeals has already 0:12:42.200 --> 0:12:45.920 reassigned that case from a New Jersey judge to the 0:12:46.000 --> 0:12:49.560 chief judge for the Middle District of Pennsylvania. It's surely 0:12:49.600 --> 0:12:52.880 not the last such motion from a defendant facing federal 0:12:53.000 --> 0:12:56.559 charges in New Jersey. I've been talking to Stamford law 0:12:56.600 --> 0:13:01.280 professor and Joseph O'Connell and the defendant. One's first argument 0:13:01.960 --> 0:13:07.079 is that Habbah's reappointment violates the Federal Vacancy's Reform Act 0:13:07.440 --> 0:13:11.360 because it prohibits people whose nominations have been submitted to 0:13:11.400 --> 0:13:14.960 the Senate from serving in an acting capacity for the 0:13:15.000 --> 0:13:20.360 same office, regardless of a subsequent withdrawal of the nomination. 0:13:21.080 --> 0:13:24.640 So the first claim is a statutory claim, and it's 0:13:24.640 --> 0:13:28.600 about whether she can serve as the acting official under 0:13:28.640 --> 0:13:32.080 the Federal Vacancy's Reform Act. And under the Federal Vacancy's 0:13:32.080 --> 0:13:35.480 Reformat which is an incredibly complicated statute, it says that 0:13:35.600 --> 0:13:39.640 someone cannot serve as an acting if quote, the President 0:13:39.840 --> 0:13:43.880 submits a nomination of such person to the Senate for 0:13:43.960 --> 0:13:47.800 appointment to such office end quote. So the argument that's 0:13:47.840 --> 0:13:52.680 being made is that although the nomination was withdrawn at 0:13:52.720 --> 0:13:56.600 some point, the President did in fact submit the nomination, 0:13:57.080 --> 0:13:59.920 and under the language of the Vacancies Act, she cannot 0:14:00.120 --> 0:14:04.080 be the acting US Attorney. Now, I think it's possible, 0:14:04.160 --> 0:14:07.160 and the government's going to argue that that language can 0:14:07.200 --> 0:14:10.400 be read another way. I mean, the verb on submission 0:14:10.559 --> 0:14:15.000 is in present tense, right, the President submits a nomination, 0:14:15.200 --> 0:14:18.240 so I think that can alternatively be read to say 0:14:18.280 --> 0:14:22.040 that the nomination is pending. And so the withdrawal of 0:14:22.080 --> 0:14:26.200 her nomination actually does permit her to be the acting 0:14:26.280 --> 0:14:30.400 because she is no longer the nominee. But in the 0:14:30.480 --> 0:14:33.240 chaotic net of events, this is going to have to 0:14:33.240 --> 0:14:38.160 get litigated because both readings are plausible. I think the 0:14:38.160 --> 0:14:41.880 government's reading is a bit better, but the other reading 0:14:42.160 --> 0:14:45.760 is not ruled out. So that's the statutory claim that. 0:14:45.720 --> 0:14:47.840 Hasn't been litigated before that issue. 0:14:48.360 --> 0:14:52.920 I cannot think of an example where the President has 0:14:53.000 --> 0:14:57.400 had to withdraw a nominations in order to allow someone 0:14:57.800 --> 0:15:00.400 to be the acting under the Federal day can sees 0:15:00.440 --> 0:15:04.880 re format I will say that in kind of lure 0:15:05.000 --> 0:15:07.840 of the Vacancies Act, we think, well, so long as 0:15:07.880 --> 0:15:12.320 a nomination is pending, in many circumstances, you can have 0:15:12.560 --> 0:15:13.520 an acting official. 0:15:14.160 --> 0:15:19.200 The second argument is that Hobba's reappointment violates twenty eight Usc. 0:15:19.480 --> 0:15:23.560 Section five forty six D, saying that once an interim 0:15:23.680 --> 0:15:29.600 US attorney statutory term expires without Senate confirmation, the exclusive 0:15:29.640 --> 0:15:33.480 authority to appoint an interim us attorney shifts to the 0:15:33.520 --> 0:15:37.560 district court, and that the Attorney General's dismissal of Grace 0:15:37.680 --> 0:15:43.000 and reinstatement of Habba constitutes unlawful executive interference. 0:15:44.360 --> 0:15:46.960 Yeah, so I can read this both as a statutory 0:15:47.040 --> 0:15:51.120 claim and a constitutional claim. I think a statutory claim 0:15:51.200 --> 0:15:54.880 is pretty hard because the language of five forty six 0:15:55.320 --> 0:15:59.360 says that the district court you can appoint someone, not 0:15:59.480 --> 0:16:03.400 that they have to appoint someone, and so it allows 0:16:03.400 --> 0:16:07.840 the option of district court appointment, which under the appointments clause, 0:16:08.040 --> 0:16:10.480 the Congress can choose a court of law as one 0:16:10.520 --> 0:16:14.360 of the alternatives for selection of temporary officials for these 0:16:14.400 --> 0:16:20.000 lower levels inferior offices. I do think that there's maybe 0:16:20.040 --> 0:16:24.000 a linked constitutional claim, and that's the idea that once 0:16:24.080 --> 0:16:27.600 the district court does exercise that power, so the power 0:16:27.640 --> 0:16:31.960 is optional. But here they did exercise it. They chose misgrace, 0:16:32.280 --> 0:16:37.080 and you could make the constitutional argument that once she's chosen, 0:16:37.680 --> 0:16:40.520 the only way to remove her is by the person 0:16:40.560 --> 0:16:42.680 who picked her, which is the court. This is the 0:16:42.720 --> 0:16:46.160 idea that the power to remove follows the power to appoint. Now, 0:16:46.280 --> 0:16:49.080 I do think there's an Office of Legal Counsel opinion 0:16:49.120 --> 0:16:53.960 here that raises separation of powers issues, and OLLC has 0:16:54.160 --> 0:16:58.960 appined claimed but the president can remove a district court appointment, 0:16:59.360 --> 0:17:02.680 and I think that's probably right. I do think there 0:17:02.680 --> 0:17:07.200 may be yet another legal issue incorporated, and that's whether, 0:17:07.440 --> 0:17:11.480 given that we have Section five forty six, whether the 0:17:11.480 --> 0:17:15.800 White House can even turn to the federal vacancy's reformat 0:17:16.000 --> 0:17:19.720 This is an issue in President Trump's first term over 0:17:19.800 --> 0:17:23.240 about who was the proper acting or temporary head of 0:17:23.240 --> 0:17:28.040 the Consumer Financial Protection Bureau. We had Beander English kind 0:17:28.040 --> 0:17:31.920 of came in under Dodd Frank's provision, a specific provision 0:17:32.320 --> 0:17:33.359 about the CSPB. 0:17:33.880 --> 0:17:34.919 But then we had Nick. 0:17:34.840 --> 0:17:38.880 Mulbany, who came in under the Vacancies Act. They both 0:17:38.960 --> 0:17:42.120 turned up to work the Monday after Thanksgiving and one 0:17:42.119 --> 0:17:45.800 of the issues was, well, if there's a specific succession provision, 0:17:46.280 --> 0:17:50.879 can you have the general Vacancies Act that's available? And 0:17:50.960 --> 0:17:54.680 I think that can get litigated as well. I do 0:17:54.760 --> 0:17:58.080 think that both are available, but it's tricky because the 0:17:58.160 --> 0:18:01.919 Vacancy's Act says that it's cool. The exclusive means for 0:18:02.080 --> 0:18:05.520 temporarily authorizing and acting official to perform an assumptions and 0:18:05.600 --> 0:18:08.960 duties of at a covered office by the Vacancies Act. 0:18:09.400 --> 0:18:14.080 But it also permits quote a statutory provision expressly end 0:18:14.160 --> 0:18:17.480 quote to provide for an alternative. And so the question 0:18:17.640 --> 0:18:22.000 is how do you read that exclusive language? And generally 0:18:22.080 --> 0:18:25.080 the courts, not in the US Attorney context but in 0:18:25.119 --> 0:18:28.760 other contexts have said, well, sort of in calling the 0:18:29.440 --> 0:18:34.240 Vacancies Act the exclusive means, that's true unless there's another 0:18:34.320 --> 0:18:37.399 apple gooble statute, the ideas that Congress has recognized that 0:18:37.440 --> 0:18:40.480 there will be cases where the Vacancy's Reform Act is 0:18:40.520 --> 0:18:43.240 actually non exclusive. So what does that mean that you 0:18:43.320 --> 0:18:46.359 could actually have both? But I think that could also 0:18:46.440 --> 0:18:49.199 play out as a claim. And all of this is 0:18:49.240 --> 0:18:53.720 creating chaos and it's going to slow down the activity 0:18:54.040 --> 0:18:56.320 of the U. S. Attorney's Office in New Jersey. I mean, 0:18:56.440 --> 0:18:58.560 right now, it's essentially frozen. 0:18:59.480 --> 0:19:02.280 This case was originally assigned, of course, to a judge 0:19:02.280 --> 0:19:05.520 in New Jersey, but the Chief Judge of the Third 0:19:05.640 --> 0:19:09.240 Circuit Court of Appeals has reassigned the case to a 0:19:09.359 --> 0:19:12.879 judge in Pennsylvania. In fact, the chief Judge for the 0:19:12.920 --> 0:19:16.480 Middle District of Pennsylvania, and the one sentence order said 0:19:16.480 --> 0:19:20.040 the trial is being moved in the public interest. Does 0:19:20.080 --> 0:19:24.000 that indicate that the Third Circuit's chief judge thinks there's 0:19:24.040 --> 0:19:25.080 a problem here too. 0:19:25.840 --> 0:19:31.000 Unlike when litigant speak a stay or pilmarian junction or 0:19:31.160 --> 0:19:34.800 tro and the court has to assess the likelihood of 0:19:34.840 --> 0:19:37.760 the merit, I don't think that's quite the same here. 0:19:38.000 --> 0:19:40.679 The way I'm reading this is that this is not 0:19:40.800 --> 0:19:45.200 a frivolous argument, and they want to figure it out 0:19:46.000 --> 0:19:50.199 before they have any issues with sort of conflict or 0:19:50.240 --> 0:19:54.000 perceptions of bias, because after all, it was the District 0:19:54.040 --> 0:19:58.440 Court of New Jersey who chose msgrace under five forty sixty. 0:19:59.000 --> 0:20:02.800 But I'm not reading into that action that they think 0:20:03.160 --> 0:20:07.280 that this litigation is going to succeed, just that that 0:20:07.359 --> 0:20:11.280 there are arguable claims and even if it's not going 0:20:11.359 --> 0:20:14.800 to succeed, right, I actually think it's an uphill battle. 0:20:14.800 --> 0:20:16.760 I'm not saying it won't succeed. I just think it's 0:20:16.800 --> 0:20:21.000 an uphill battle against the government on these arguments. It's 0:20:21.040 --> 0:20:24.159 going to slow step down, and it's going to change workload. 0:20:24.320 --> 0:20:28.000 If all of that work in New Jersey then has 0:20:28.040 --> 0:20:31.560 to be heard by district court judges in other districts, 0:20:31.760 --> 0:20:35.480 it's just a mess. Even assuming the government is likely 0:20:35.520 --> 0:20:38.520 to win in the end, it's still creating an incredible 0:20:38.520 --> 0:20:42.320 amount of chaos. These various actions by the Trump administration. 0:20:43.240 --> 0:20:47.159 Did something similar happen with John Sarcone, who was the 0:20:47.240 --> 0:20:52.399 interim US Attorney for the Albany based Northern District of 0:20:52.440 --> 0:20:52.960 New York. 0:20:53.760 --> 0:20:57.040 It had some similarity, so he had been picked to 0:20:57.119 --> 0:21:00.280 be the interim US attorney. I will say both Tony 0:21:00.359 --> 0:21:03.440 and Haba. Seems like they were picked by the president 0:21:03.520 --> 0:21:06.280 to be the interim US Attorney. And one interesting wrinkle 0:21:06.400 --> 0:21:09.960 is Section five forty six actually says the Attorney General 0:21:10.000 --> 0:21:12.960 is supposed to pick, not the president. I think, given 0:21:13.480 --> 0:21:16.680 cabinet department control by the White House, I think it's fine. 0:21:16.680 --> 0:21:19.520 But it's an interesting little wrinkle that criminal defendants might 0:21:20.119 --> 0:21:22.159 be able to go after. But yeah, so he was 0:21:22.200 --> 0:21:25.640 picked as interim US Attorney and they are the District 0:21:25.640 --> 0:21:28.480 Court didn't pick him, but didn't pick anyone else. So 0:21:28.560 --> 0:21:32.800 the Northern of New York just didn't exercise their statutory 0:21:32.840 --> 0:21:36.160 authority to name an interim the US Attorney. And he 0:21:36.240 --> 0:21:40.280 got himself named as special attorney to the Attorney General. 0:21:40.920 --> 0:21:45.760 And then somehow, as I'm understanding the news reporting, got 0:21:45.880 --> 0:21:50.240 that position to be named as the first assistant position, 0:21:50.400 --> 0:21:53.359 and so again kind of by default, he becomes the 0:21:53.520 --> 0:21:56.840 acting US Attorney. Now there, I do think there is 0:21:56.880 --> 0:21:59.960 a question like, is this like the ken Kuchinelli situation. 0:22:00.280 --> 0:22:04.240 Did we just create a new first assistant position in 0:22:04.280 --> 0:22:07.080 the Northern District of New York? How did the succession 0:22:07.200 --> 0:22:10.360 order get changed? I'd like to know a lot more 0:22:10.359 --> 0:22:13.880 about what went down in the Northern District of New York. 0:22:14.080 --> 0:22:17.159 I will say, in both these cases and in other cases, 0:22:17.200 --> 0:22:21.199 it's a little weird to have a court role in 0:22:21.280 --> 0:22:24.720 appointing US attorneys. Now I think it's fine. We have 0:22:24.800 --> 0:22:28.600 this case called Morrison versus Olsen, where the Supreme Court 0:22:28.720 --> 0:22:32.960 upheld with only Justice Scalia dissenting the appointment of an 0:22:33.040 --> 0:22:37.600 independent council by a court panel. But it does raise 0:22:37.760 --> 0:22:41.520 certain separation of powers concerns, and actually Justice Thomas, in 0:22:41.560 --> 0:22:45.200 his descent in the Braidwood case this past term, has 0:22:45.240 --> 0:22:50.280 a footnote saying that he thinks court appointed inferior executive 0:22:50.320 --> 0:22:53.639 officers are unconstitutional, so that there should be sort of 0:22:53.640 --> 0:22:55.760 no role for the Court in this process. 0:22:56.320 --> 0:22:59.920 What's the downside for the Trump administration with this maneuvering. 0:23:00.840 --> 0:23:04.400 I do think that these moves by the Trump administration 0:23:04.960 --> 0:23:07.960 are legal, even if there are plausible arguments on the 0:23:08.000 --> 0:23:12.640 other side. But the chaotic way it's being carried out 0:23:13.280 --> 0:23:20.000 is shining public attention to the administration's choices for these positions, 0:23:20.560 --> 0:23:24.199 to these temporary picks who normally don't get much attention 0:23:24.320 --> 0:23:27.639 at all. So even if they're upheld as a legal matter, 0:23:28.080 --> 0:23:32.440 there's now so much more oversight and worry, and they're 0:23:32.480 --> 0:23:37.200 going to be consequences for the Trump administration later on. 0:23:37.760 --> 0:23:40.360 And I have to say, this is such a confusing 0:23:41.200 --> 0:23:41.959 legal area. 0:23:42.600 --> 0:23:46.400 There's a great story. So in twenty seventeen, the Supreme 0:23:46.440 --> 0:23:49.560 Court heard a case about the Federal Vacancy's Reform Act, 0:23:49.600 --> 0:23:51.439 and it was actually about who could both be the 0:23:51.480 --> 0:23:55.560 acting and the nominee and an oral argument, Justice Kagan 0:23:55.720 --> 0:23:58.800 asks the lawyer who wants there to be a Vacancy's 0:23:58.800 --> 0:24:01.560 Act violation found. She says, why don't you just go 0:24:01.680 --> 0:24:04.679 out to the public and say the Vacancies Act has 0:24:04.720 --> 0:24:08.240 been violated? And the lawyer looks at her and says, 0:24:08.280 --> 0:24:10.720 because then I would have to explain the Vacancies Act. 0:24:11.600 --> 0:24:15.240 And the courtroom burst into laughter. And there's something to that. 0:24:15.560 --> 0:24:18.240 It's an incredibly complex statute. 0:24:18.560 --> 0:24:21.919 Well, you certainly know every section and sub section of it. 0:24:22.040 --> 0:24:22.720 Thanks so much. 0:24:22.760 --> 0:24:22.840 An. 0:24:23.440 --> 0:24:27.479 That's Stanford Law School professor and Joseph O'Connell coming up 0:24:27.520 --> 0:24:30.800 next on the Bloomberg Law Show. A mass exodus from 0:24:30.840 --> 0:24:34.920