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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: A lot of people are asking me about Bardons. Obviously,

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Speaker 2: this is no time to be talking about Bardons.

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Speaker 3: President Trump hasn't ruled out a pardon for Glaine Maxwell,

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Speaker 3: who's serving a twenty year sentence for conspiring with Jeffrey

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Speaker 3: Epstein to sexually abuse minors, but Maxwell is also exhausting

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Speaker 3: her legal options. This week, she asked the Supreme Court

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Speaker 3: to take up her appeal of her federal sex trafficking conviction.

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Speaker 3: Her appeal is based on a non prosecution agreement that

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Speaker 3: Epstein struck with federal prosecutors in Miami in two thousand

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Speaker 3: and seven. Maxwell argues that agreement should have barred her

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Speaker 3: prosecution in New York fourteen years later. The Supreme Court

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Speaker 3: says the justices will review Maxwell's case along with others.

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Speaker 3: At their first private conference after summer break on September

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Speaker 3: twenty ninth. My guest is former federal prosecutor Robert Mintz,

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Speaker 3: a partner McCarter and English. Bob tell us about this

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Speaker 3: broad prosecution agreement that Epstein got in two thousand and seven.

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Speaker 2: The document that at the heart of the Galain Maxwell

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Speaker 2: Appeals to the Supreme Court is a non prosecution agreement

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Speaker 2: that was signed in two thousand and seven with the

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Speaker 2: US Attorney in Southern Florida involving Jeffrey Epstein. He was

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Speaker 2: facing both federal and potential state charges. The deal that

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Speaker 2: he ultimately struck allowed him to plead guilty to two

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Speaker 2: Florida state charges, and in exchange for that, the Department

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Speaker 2: of Justice agreed not to bring any federal charges against him.

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Speaker 2: But the critical language in the agreement said that the

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Speaker 2: United States also agrees that it will not institute any

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Speaker 2: criminal charges against any potential co conspirators of Epstein. And

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Speaker 2: that is the life language that Maxwell lawyers have lacked

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Speaker 2: onto to argue that her subsequent sex trafsking charges in

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Speaker 2: New York were actually barred by that non prosecution agreement.

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Speaker 3: How unusual is it to have a non prosecution agreement

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Speaker 3: made by one US attorney bind other US attorneys in

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Speaker 3: different districts.

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Speaker 2: That would be highly unusual. As a federal prosecutor, I

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Speaker 2: had been involved in hundreds of plea agreements, and the

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Speaker 2: standard language in all these plea agreements says that that

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Speaker 2: agreement is limited to the district. That is prosecuting you

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Speaker 2: or potentially prosecuting you in that case, and that it

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Speaker 2: expressly does not bind any other district in the country.

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Speaker 2: So to have language as broad as that which says

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Speaker 2: that the US Attorney in the southern districts of Florida

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Speaker 2: can bind every other judicial district in the United States

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Speaker 2: is something that would be highly unusual. No less, the

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Speaker 2: language that was in that agreement is on its face,

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Speaker 2: very broad, and that is at the heart of the

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Speaker 2: Maxwell appeal before the Supreme Court.

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Speaker 3: What about the fact that in Jeffrey Epstein's non prosecution agreement,

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Speaker 3: the US Attorney is also promising not to prosecute anyone else.

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Speaker 3: Does that happen?

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Speaker 2: Typically, what a plea rievement will say is that in

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Speaker 2: exchange for a plead or a particular crime, the US

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Speaker 2: Attorney's office will not prosecute that individual for any other

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Speaker 2: crimes related to that criminal activity. It doesn't typically say

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Speaker 2: anything about not bringing charges against any other individual. So

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Speaker 2: in this case, that language is incredibly broad because it

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Speaker 2: talks about not bringing any other federal charges against any

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Speaker 2: unspecified co conspirators. It doesn't even list who those individuals

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Speaker 2: may be, So it makes that language incredibly broad. And

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Speaker 2: that's why when that case was first appeal to the

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Speaker 2: Second Circuit Court of Appeals, the Second Circuit did not

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Speaker 2: agree that that plea agreement barred the prosecution in New

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Speaker 2: York that was ultimately brought against Gallaine Maxwell.

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Speaker 3: That Epstein non prosecution agreement has been widely criticized. In fact,

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Speaker 3: the Justice Department said in twenty twenty that then US

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Speaker 3: Attorney for the South District of Florida, alex Acosta, used

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Speaker 3: poor judgment in handling the case, and the Second Circuit

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Speaker 3: reviewed the NPA before upholding her conviction.

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Speaker 2: The central question raised by Maxwell's appeal to the Supreme

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Speaker 2: Court is whether a promise on behalf of the United

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Speaker 2: States that is made by one US attorney in one

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Speaker 2: district combined federal prosecutors in other districts. But it really

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Speaker 2: is more complex than even that, because here it involved

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Speaker 2: not a situation where the individual who pled guilty in

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Speaker 2: Florida is being prosecuted by another US attorney's office, and

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Speaker 2: in another part of the country, we're talking about another

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Speaker 2: person who was not even a party to that plea

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Speaker 2: agreement in Florida. Arguing that the plea agreement with Jeffrey

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Speaker 2: Epstein somehow barred a prosecution of Ghlaine Maxwell in New

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Speaker 2: York many years later, So it would be an incredibly

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Speaker 2: broad reading of that language. And in fact, the Second

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Speaker 2: Circuit Court of Appeals looked at the Plea agreement and

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Speaker 2: said that on its face, while it's possible that the

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Speaker 2: United States could conceivably refer to the entire federal government,

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Speaker 2: when they look at the context and the entirety of

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Speaker 2: that non prosecution agreement, it makes clear that when they

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Speaker 2: refer to the government or to the United States, they're

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Speaker 2: only referring to the US Attorney's office in the Southern

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Speaker 2: District of Florida. And therefore that language, as Glaine Maxwell'

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Speaker 2: attorneys are arguing, is really being taken out of context

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Speaker 2: because it really involved only the Southern District of Florida.

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Speaker 2: But once again, there's really two questions that are being

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Speaker 2: raised here. One is whether it could apply to other

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Speaker 2: US attorney's offices as against the individual who's pleading guilty

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Speaker 2: in Florida. But also here you're talking about another individual,

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Speaker 2: not even a party to the Florida agreement, who's trying

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Speaker 2: to use it as a bart of prosecution in another district.

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Speaker 3: The Justice Department file paper is asking the Supreme Court

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Speaker 3: not to take Maxwell's case.

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Speaker 2: Yeah, the Justice Department is opposing Maxwell's petition and essentially

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Speaker 2: arguing that it's clear in the context of that non

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Speaker 2: prosecution agreement that it was only referring to the Southern

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Speaker 2: District of Florida and was not attempting to bind other

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Speaker 2: judicial districts around the country.

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Speaker 3: Glain Maxwell's attorneys are saying that there's a split in

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Speaker 3: the circuits, and that is something that the Supreme Court

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Speaker 3: often considers when taking a case. But they received thousands

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Speaker 3: of petitions every year and they grant review in fewer

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Speaker 3: than one hundred, So the odds of the Supreme Court

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Speaker 3: granting review here are pretty slim.

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Speaker 2: Well, that's exactly right. It's very rare for the Supreme

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Speaker 2: Court to take these appeals. They do receive thousands of petitions,

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Speaker 2: it takes four justices to grant review, and it seems,

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Speaker 2: in my opinion, unlikely they're going to take this because

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Speaker 2: while there may be a split in the circuits around

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Speaker 2: the country, this is not an issue that comes up

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Speaker 2: on a regular basis, and I think in this case,

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Speaker 2: the Supreme Court is likely just to leave the second

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Speaker 2: Circuit decision in place and not take it up.

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Speaker 3: This case is unusual in a lot of different ways,

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Speaker 3: one being that her attorney not only appeal to the

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Speaker 3: Supreme Court but also appeal to President Trump, saying, quote,

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Speaker 3: President Trump built his legacy in part on the power

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Speaker 3: of a deal, and surely he would agree that when

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Speaker 3: the United States gives its word, it must stand by it.

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Speaker 2: Yeah. So what we're seeing here really is the court

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Speaker 2: filing in the form of this petition to the United

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Speaker 2: States Supreme Court that on his face, is fairly typical.

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Speaker 2: They're raising a legal issue. They're arguing that there is

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Speaker 2: a split in the federal circuits, which is something that

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Speaker 2: the Supreme Court considers when it decides whether or not

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Speaker 2: to take a case, and they're trying to argue that

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Speaker 2: the question of whether one US attorney's office can in

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Speaker 2: fact bind the entire United States is something that's important

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Speaker 2: enough that the Supreme Court ought.

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Speaker 4: To take it up.

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Speaker 2: On the other hand, you cannot ignore the fact that

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Speaker 2: there is a political backdrop to this appeal, in that

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Speaker 2: there's been tremendous backlash against the Department of Justice and

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Speaker 2: some of President Trump's supporters regarding the decision naturally additional

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Speaker 2: information related to the Jeffrey Epstein prosecution, and all of

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Speaker 2: that is getting swept up in this Supreme Court appeal,

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Speaker 2: which is why we're seeing her lawyer appeal not only

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Speaker 2: to the Supreme Court but expressly appealing to President Trump.

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Speaker 2: In the reply brief that was just recently filed with

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Speaker 2: the Supreme Court, her lawyer specifically referenced not only the

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Speaker 2: United States Supreme Court where the brief was filed, but

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Speaker 2: also Mans and President Trump and said, we are appealing

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Speaker 2: not only to the Supreme Court, but to the President

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Speaker 2: himself to recognize how profoundly unjust it is to scapegoat

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Speaker 2: Delane Maxwell for Epstein's crimes, especially when the government promised

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Speaker 2: he would not be prosecuted. So this is a quite

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Speaker 2: direct appeal not only to the Court but also to

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Speaker 2: President Trump in the hope that maybe he will pardon

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Speaker 2: her or reduce her sentence, because they know that it's

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Speaker 2: unlike the Supreme Court is going to take this appeal.

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Speaker 3: The Supreme Court filing doesn't refer to the let's say

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Speaker 3: unusual out of court developments like her meeting for two

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Speaker 3: days last week with the Deputy Attorney General and the

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Speaker 3: House Oversight Committee subpoena in her to testify. Her attorney

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Speaker 3: had a list of conditions for her testimony, including a

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Speaker 3: grant of formal immunity the committee's questions in advance, and

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Speaker 3: the testimony could only take place after the resolution of

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Speaker 3: her Supreme Court petition and a Habeast petition that hasn't

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Speaker 3: even been filed yet, and if the conditions aren't met,

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Speaker 3: Maxwell would plead the fifth. Are these conditions within the

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Speaker 3: bounds of what a defense attorney would normally ask for

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Speaker 3: a client who's still appealing a conviction.

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Speaker 2: Yeah, these are not really unusual requests given her circumstance,

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Speaker 2: But there also requests that the House Oversight Committee has

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Speaker 2: already determined they would not grant. What the defense lawyer

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Speaker 2: here is really trying to do is to protect his

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Speaker 2: client who is actively seeking post conviction relief, both in

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Speaker 2: the pending petition before the United States Supreme Court and

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Speaker 2: in a habeas petition they intend to file, and he

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Speaker 2: is arguing that her testimony before the committee could compromise

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Speaker 2: her constitutional rights, prejudice, or legal claims, and could potentially

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Speaker 2: take a future jury pool if the Supreme Court were

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Speaker 2: to take the case and overturn the lower course decision

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Speaker 2: and remand the case for another trial. So those requests

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Speaker 2: are really not unusual, but it was also highly unlikely

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Speaker 2: that they were going to be granted by the committee.

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Speaker 3: Also, waiting for the resolution of the Supreme Court petition

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Speaker 3: and the filing and resolution of a habeas petition effectively

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Speaker 3: puts off her testimony for an undetermined amount of time,

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Speaker 3: and Maxwell will be serving that time at a minimum

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Speaker 3: security prison camp in Texas, where she was transferred this

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Speaker 3: week without any explanation from the Federal Bureau of Prisons.

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Speaker 3: Thanks for the conversation, Bob. That's Robert Mince of Macarter

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Speaker 3: and English. Coming up next, the Justice Department escalates its

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Speaker 3: fight with the federal judiciary. I'm June Grosso and you're

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Speaker 3: listening to Bloomberg. James Boseburg, the chief Judge of the

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Speaker 3: un US District Court for the District of Columbia, has

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Speaker 3: been at the center of the Trump administration's efforts to

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Speaker 3: deport alleged Venezuelan gang members to l Salvador using an

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Speaker 3: eighteenth century wartime law, the Alien Enemies Act. He's also

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Speaker 3: been at the center of the administration's attacks on the

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Speaker 3: federal judiciary. President Trump has called Boseburg a radical left

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Speaker 3: lunatic of a judge, a troublemaker and agitator, even calling

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Speaker 3: for his impeachment. That led to a rare public rebuke

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Speaker 3: from Chief Justice John Roberts in March, and Attorney General

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Speaker 3: Pam Bondi has repeatedly criticized Boseburg.

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Speaker 1: This judge has no right to ask those questions. You

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Speaker 1: have one unelected federal judge trying to control foreign policies,

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Speaker 1: trying to control the Alien Enemies Act, which they have

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Speaker 1: no business presiding over. This judge had no right to

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Speaker 1: do that. They're meddling in foreign affairs, They're meddling in

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Speaker 1: our government. And the question should be why is a

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Speaker 1: judge trying to protect terrorists who have invaded our country

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Speaker 1: over American citizens, and then, of course Boseburg trying to

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Speaker 1: control our foreign policy. These judges are out of control.

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Speaker 1: We are going to fight back and we are going

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Speaker 1: to win.

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Speaker 3: And the Justice Department is fighting back by filing an

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Speaker 3: ethics complaint accusing Judge Boseburg of misconduct for a comment

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Speaker 3: he allegedly made at a private meeting of judges. My

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Speaker 3: guest is constitutional law expert David super, a professor at

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Speaker 3: Georgetown Law David why is the administration focusing so much

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Speaker 3: on Judge Boseburg?

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Speaker 4: Cases are assigned to district judges randomly. Judge Boseberg have

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Speaker 4: the misfortune of drawing the first case involving the Trump

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Speaker 4: administration's bizarre application of the Alien Enemies Act in a

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Speaker 4: non wartime situation, and he did what any competent judge

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Speaker 4: would do, which is declared illegal.

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Speaker 3: The complaint focuses on a March session of the Judicial

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Speaker 3: Conference of the United States, a panel of judges led

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Speaker 3: by Chief Justice John Roberts. The Justice Department accused Boseburg

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Speaker 3: of raising quote concerns that the administration would disregard rulings

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Speaker 3: of federal courts, leading to a constitutional crisis, and said

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Speaker 3: his comments violated a section of the Code of Conduct

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Speaker 3: for federal judges, which says that they should not make

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Speaker 3: any public comment on the merits of a matter pending

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Speaker 3: or impending in any court. If he did, in fact

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Speaker 3: say this, is it at a bounds for a judge

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Speaker 3: at a meeting that's supposed to be private to say

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Speaker 3: something like that.

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Speaker 4: No, of course not. This complaint doesn't pass the last test.

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Speaker 4: It's not a public statement. It's a statement with only

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Speaker 4: judges present. I would love to attend meetings to his

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Speaker 4: judicial conference, but I'm never invited. I'm sure you would too,

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Speaker 4: it's a private meeting. By this reasoning someone should bring

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Speaker 4: a complaint against Justice Alito or indicating that he thought

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Speaker 4: Rovy Waite should be overruled and circulating his draft opinion

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Speaker 4: in Bobbs, which later became public. Judge Bozburg is not

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Speaker 4: responsible for other people leaking memos about things he said

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Speaker 4: in private meetings among judges any more than Justice Alito

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Speaker 4: would be responsible for the leak of his draft opinion

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Speaker 4: that he shared with other justices.

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Speaker 3: In the complaint, the Justice Department also says that Judge

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Speaker 3: Boseburg had no basis for saying that because the Trump

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Speaker 3: administration has always complied with court orders, but the administration

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Speaker 3: violated Boseberg's verbal order in this very case.

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Speaker 4: Judge Bosberg's role on the judicial conferences as a representative

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Speaker 4: of district judges in the District of Columbia, he is

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Speaker 4: responsible for reporting what judges on his court are concerned,

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Speaker 4: and it would be at their election of his duty

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Speaker 4: if he didn't report concerns that they had. Judges on

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Speaker 4: his court had found the administration to be out of

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Speaker 4: compliance with a number of court orders. By administration officials,

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Speaker 4: certainly including the Vice president, arguably including the president, had

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Speaker 4: mused about whether they would honor court orders on various topics,

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Speaker 4: even Supreme Court orders, certainly orders of district courts, and

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Speaker 4: the question of how to deal with the administration violating

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Speaker 4: court orders had already been up and down to the

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Speaker 4: Supreme Court by that point. Obviously it was something they

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Speaker 4: were concerned about. He was not, as we've been told,

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Speaker 4: expressing his own views, but rather the views of other

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Speaker 4: judges on his bench. I'm sure at other times the

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Speaker 4: chief Judge of the District of Columbia may have reported

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Speaker 4: that they feel inundated with bentonl cases, where they feel

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Speaker 4: inundated with crystal meth cases. This is a place where

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Speaker 4: judges talk about the challenges of maintaining the judiciary. He

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Speaker 4: was doing exactly what he was supposed to be doing.

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Speaker 3: Is it concerning that apparently a memo of the meeting

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Speaker 3: was leaked to the conservative website The Federalist.

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Speaker 4: Well, the Judicial Conference is representing judges and business about it.

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Speaker 4: So memos of what happened at this meeting do get

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Speaker 4: circulated to judges. President Trump has made a point of

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Speaker 4: appointing members of the Federalist Society to the Judiciary. So

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Speaker 4: many Federalist Society members received this memo, and one of

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Speaker 4: them apparently chose to leak it to the Federalist.

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Speaker 3: And this comment that Boseberg allegedly made is presented in

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Speaker 3: isolation in the complaint. You don't know what conversations preceded

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Speaker 3: it and what conversations followed it. There's no context it.

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Speaker 4: Is, and they describe his comments as being uncalled for,

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Speaker 4: but they don't give us any context to suggest that

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Speaker 4: they weren't. And again, Judge Bosberg's role there was to

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Speaker 4: bring to the judicial conference concerns by judges on his court,

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Speaker 4: and judges reacting negatively to administration officials and Republican senators

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Speaker 4: suggesting that they disregard court orders would be an obvious

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Speaker 4: thing to discuss. He doesn't indicate what the point of

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Speaker 4: the agenda was, what prompted this, or what anyone else

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Speaker 4: said afterwards. Moreover, the Code of Judicial Conduct prohibits comments

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Speaker 4: on the merits of the case. This is not a

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Speaker 4: merits issue. This is an issue about what does the

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Speaker 4: court do when it has decided the merits and one

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Speaker 4: of the parties doesn't comply.

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Speaker 3: The Justice Department also complains about his handling of the

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Speaker 3: case involving the alleged Venezuelan gang members, saying he rushed

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Speaker 3: the government through complex litigation, sometimes giving the Trump administration

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Speaker 3: less than forty eight hours to respond.

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Speaker 4: Well, the rushing was by the administration. The administration could

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Speaker 4: have agreed to suspend flights until this matter was litigated,

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Speaker 4: and the parties could have submitted their papers in due time.

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Speaker 4: The administration was in physical control of all of these people.

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Speaker 4: It had no need to send them to Alvalvadore. It

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Speaker 4: chose to do it in a great hurry, and that

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Speaker 4: led to a quick response from Judge Boseburg. Many judges

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Speaker 4: would not have given the administration any operatity to respond

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Speaker 4: at all when enjoining a crisis that was entirely of

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Speaker 4: that party's making. Judge Boseburg bent over backwards to be

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Speaker 4: considerate of the administration and to accommodate the schedule, which

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Speaker 4: they insisted was very urgent, even though they never explained why.

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Speaker 3: If you have a problem with the judge handling your case,

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Speaker 3: does a litigan file a misconduct complaint or wait for

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Speaker 3: the appeal.

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Speaker 4: If what the judge does is sufficiently egregious, you can

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Speaker 4: file a misconduct point it's not out now then appropriate.

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Speaker 4: But what judge bosover here did doesn't mean any of

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Speaker 4: the requirements of an improper act. It wasn't public, it

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Speaker 4: wasn't on the merits, and wasn't prejudicial. So the normal

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Speaker 4: procedure would be either to appeal or in some instances,

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Speaker 4: to move for the judge to be recused. But the

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Speaker 4: standard even for recusal and for appeal is much much

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Speaker 4: higher than this, and the standard for judicial misconduct is

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Speaker 4: higher still.

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Speaker 3: You said, doesn't pass the left test? What do you

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Speaker 3: expect to happen here?

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Speaker 4: In a normal world, the Chief Judge of the DC

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Speaker 4: Circuit would dismiss this outright, because this comes from the

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Speaker 4: Justice Department and from an administration that is been exceedingly

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Speaker 4: vindictive and is cross lines that none of its predecessors

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Speaker 4: have in criticizing sitting judges. The chief Judge may refer

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Speaker 4: it to a panel, but those judges would then dismiss it.

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Speaker 3: We've talked before about this. This is the latest in

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Speaker 3: a string of confrontations of the Trump administration with the

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Speaker 3: federal courts. They filed a misconduct complaint in February against

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Speaker 3: another DC federal judge, Anna Reyes, accusing her of hostile

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Speaker 3: and egregious misconduct for her sharp questioning of government lawyers

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Speaker 3: in the case on the Pentagon's attempts to ban transgender

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Speaker 3: people from military service. And last month they sued every

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Speaker 3: judge in Maryland over a standing order that blocked the

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Speaker 3: immediate deportation of migrants, challenging their removal for two days.

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Speaker 3: Is there a strategy.

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Speaker 4: Here well, certainly, the strategies to intimidate federal judges, the

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Speaker 4: public criticisms of them, which have led reportedly to spikes

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Speaker 4: and death threats, is part of this. The suggestion that

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Speaker 4: they don't have to follow them, the characterization of them

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Speaker 4: as radical leftists. Some of the judges they've called radical

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Speaker 4: leftists were appointed by Ronald Reagan. But no mind though,

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Speaker 4: this is all part of a broader strategy to delegitimate

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Speaker 4: the courts, to have people not believe that the courts

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Speaker 4: can determine the law, and to have people do entirely

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Speaker 4: what the government says. That's the past of the dictatorship.

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Speaker 3: How unusual is it for the Justice Department to file

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Speaker 3: a complaint against a federal judge In the past, under

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Speaker 3: other presidents, have justice departments taken this course.

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Speaker 4: Almost never, and a good example of that is the

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Speaker 4: behavior of Judge Cannon in one of President Trump's criminal cases.

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Speaker 4: A number of her rulings were very strange, sometimes self

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Speaker 4: initiated rulings in favor of mister Trump, and the Justice Department,

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Speaker 4: though it had plenty of grounds, didn't even move to

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Speaker 4: recuse her less file and judicial misconduct complaint. The ordinary

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Speaker 4: views of the Justice Department has a strong interest in

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Speaker 4: public respect for the judiciary and doesn't want to undermine it.

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Speaker 4: This administration obviously feels differently.

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Speaker 3: And tell us a little about Judge Boseberg's reputation.

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Speaker 4: Judge Boseburg's an extremely thorough, extremely smart judge. He basically

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Speaker 4: gives you what you get. If you give him a

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Speaker 4: serious argument, he'll either ruin your favor or give you

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Speaker 4: a careful, anapolitical reason why he won't. If you give

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Speaker 4: him a silly argument, he will say so and not

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Speaker 4: dignify it with a lot of extra words. He's very

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Speaker 4: hard working, very attentive to the law, He's ruled in

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Speaker 4: the Trump administration's favor on a number of matters, including

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Speaker 4: involving the Alien Enemies Act, because he felt the law

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Speaker 4: was in their favor. He's not a partisan.

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Speaker 3: And by the way, the DC Appellate Court has not

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Speaker 3: yet addressed the complaint against Judge Ray As for her

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Speaker 3: sharp questioning of government lawyers, I.

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Speaker 4: Will point out that if the standard was that lawyers

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Speaker 4: shouldn't be sharply questioned, there are only about two judges

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Speaker 4: I ever practiced in front of that I couldn't have

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Speaker 4: filed misconduct complaints against the judge actually drew the most

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Speaker 4: when I was a practice was JOHNS. Bullham, And I

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Speaker 4: don't believe he ever asked me a question that wasn't sharp.

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Speaker 4: I don't think he ever asked me, how are you counselor?

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Speaker 4: I think he starred with his urb questern then never finished.

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Speaker 4: I want a bunch of cases in front of him.

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Speaker 4: But everything, a lot of his questions was sharp.

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Speaker 3: Well, you have to have a tough skin if you're

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Speaker 3: going to be a litigator. Always a pleasure, David. That's

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Speaker 3: Professor David super of Georgetown Law. Coming up next, challenges

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Speaker 3: to Elena Hobba's authority over the US Attorney's office in

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Speaker 3: New Jersey leads to chaos in the federal criminal courts there.

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Speaker 3: I'm June Grosso. When you're listening to Bloomberg, you may

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Speaker 3: be familiar with Alena Habba from her vigorous defense of

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Speaker 3: President Donald Trump in three civil lawsuits in New York

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Speaker 3: which Trump lost, including a defamation suit brought by writer

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Speaker 3: Egene Carroll. This is wrong, but we are in the

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Speaker 3: state of New York. We are in a New York jury, and.

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Speaker 1: That is why we are seeing these witch.

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Speaker 3: Hunts, these hoaxes, as he calls.

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Speaker 2: Them, and this is another one of them. Don't get

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Speaker 2: it twisted.

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Speaker 3: We are seeing a violation of our justice system. I

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Speaker 3: was yelled at, and I've had a judge who's unhinged,

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Speaker 3: slimming a table.

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Speaker 1: Let me be very clear. I don't tolerate that in

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Speaker 1: my life.

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Speaker 2: I'm not going to tolerate it here.

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Speaker 3: Trump appointed Haba, who's never worked as a prosecutor, as

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Speaker 3: interim US Attorney for New Jersey in March, but both

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Speaker 3: the state's Democratic senators opposed her nomination and the state's

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Speaker 3: judges refused to appoint her as the US Attorney when

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Speaker 3: her one hundred and twenty day interim term ran out. Now,

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Speaker 3: the Trump administration's procedural maneuvering to keep her in charge

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Speaker 3: of that office has led to chaos in New Jersey's

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Speaker 3: federal criminal courts, basically paralyzing criminal cases. Judges are pausing

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Speaker 3: proceedings except for bail hearings because of challenges by defendants

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Speaker 3: who argue that Haba doesn't legally hold the job. My

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Speaker 3: guest is Stanford Law professor and Joseph O'Connell, and will

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Speaker 3: you start by explaining the law around interim US attorney appointments?

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Speaker 5: Sure, So, normally each district has a US Attorney who's

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Speaker 5: nominated by the President and confirmed by the Senate. But

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Speaker 5: there are often incredible delays in that process. So Congress

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Speaker 5: has enacted two statutes that provide for temporary service of

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Speaker 5: US attorney's wall the traditional appointments process churns. So the

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Speaker 5: first way to get a temporary US attorney is through

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Speaker 5: twenty eight Usc. Five forty six, and that allows the

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Speaker 5: Attorney General to pick what is called an interim US

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Speaker 5: Attorney and that person can serve for one hundred and

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Speaker 5: twenty days and then at the the expiration of that

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Speaker 5: one twenty day period, the district court in that district

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Speaker 5: may doesn't have to may pick an interim US attorney

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Speaker 5: who can serve until someone is confirmed to the position.

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00:27:14,480 --> 00:27:18,800
Speaker 5: There's also another statute that covers more than just US attorneys,

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Speaker 5: so five forty six just covers US attorneys. There's something

439
00:27:21,920 --> 00:27:25,280
Speaker 5: called the Federal Vacancy's Reform Act of nineteen ninety eight,

440
00:27:25,440 --> 00:27:29,359
Speaker 5: which is the latest in a long history of vacancies acts.

441
00:27:29,400 --> 00:27:32,720
Speaker 5: We've had them since the late eighteenth century. And the

442
00:27:32,880 --> 00:27:38,440
Speaker 5: Vacancy's Act allows acting US attorneys and also acting leaders

443
00:27:38,480 --> 00:27:41,919
Speaker 5: in a bunch of other positions, and they are There

444
00:27:41,920 --> 00:27:45,680
Speaker 5: are also time limits. There's no role for the district court.

445
00:27:45,840 --> 00:27:48,359
Speaker 3: So the one hundred and twenty days was running out

446
00:27:48,560 --> 00:27:53,840
Speaker 3: and New Jersey federal judges chose Habba's hand picked first assistant,

447
00:27:54,240 --> 00:27:58,280
Speaker 3: Desiree Grace, to replace her, but within hours the Attorney

448
00:27:58,359 --> 00:28:02,400
Speaker 3: General fired Grace. Is the ag allowed to fire Grace

449
00:28:02,760 --> 00:28:05,120
Speaker 3: once the judges have appointed her.

450
00:28:05,520 --> 00:28:08,800
Speaker 5: No, so Attorney General Bondi could fire her from being

451
00:28:08,880 --> 00:28:13,240
Speaker 5: first assistant. That's within her powers. But although the Attorney

452
00:28:13,240 --> 00:28:15,960
Speaker 5: General is supposed to pick the US attorney in the

453
00:28:16,000 --> 00:28:19,400
Speaker 5: interim capacity. She cannot fire someone who is picked by

454
00:28:19,400 --> 00:28:22,720
Speaker 5: the court. And why is that because under constitutional law,

455
00:28:22,960 --> 00:28:26,239
Speaker 5: the Supreme Court has held in multiple cases that the

456
00:28:26,320 --> 00:28:30,120
Speaker 5: power to remove follows the power to appoint for these

457
00:28:30,200 --> 00:28:35,600
Speaker 5: inferior offices, which US attorneys are, unless Congress has specified otherwise. Now,

458
00:28:35,680 --> 00:28:39,320
Speaker 5: under that rule, the Court has appointed, so only the

459
00:28:39,360 --> 00:28:43,240
Speaker 5: Court can remove. But that runs up against another constitutional

460
00:28:43,320 --> 00:28:46,120
Speaker 5: law principle about separation of powers. So the Office of

461
00:28:46,240 --> 00:28:49,840
Speaker 5: Legal Counsel has long held that the president and only

462
00:28:49,880 --> 00:28:53,800
Speaker 5: the president can fire a court appointed interim US attorney.

463
00:28:53,840 --> 00:28:56,400
Speaker 5: And we saw this happen in the first Trump administration

464
00:28:56,640 --> 00:28:59,280
Speaker 5: when President Trump fired Jeff Berman, and there was a

465
00:28:59,280 --> 00:29:02,040
Speaker 5: bit of a scrif full about it because initially it

466
00:29:02,080 --> 00:29:05,040
Speaker 5: seemed as if Attorney General Barr was pushing him out,

467
00:29:05,320 --> 00:29:08,640
Speaker 5: and finally the president got involved and Jeff Berman.

468
00:29:08,520 --> 00:29:12,520
Speaker 3: Left, So here the president could fire Grace with no problem.

469
00:29:12,800 --> 00:29:16,520
Speaker 5: That's right, And I think you could say that happened arguably.

470
00:29:16,720 --> 00:29:19,719
Speaker 5: I mean after Attorney General Bondi's ex post. I mean,

471
00:29:19,760 --> 00:29:23,160
Speaker 5: we're running government through ex posts, but after Attorney General

472
00:29:23,160 --> 00:29:26,280
Speaker 5: Pam Bondi's ex post, which doesn't talk about the president's

473
00:29:26,280 --> 00:29:30,200
Speaker 5: authority at all. Todd Blanche who's the Deputy Attorney General,

474
00:29:30,280 --> 00:29:35,760
Speaker 5: says that pursue into presidential authority. They're firing Grace as

475
00:29:36,080 --> 00:29:39,880
Speaker 5: the court appointed US attorney, and I think that's probably enough.

476
00:29:39,960 --> 00:29:43,360
Speaker 5: I mean, you could argue about the wording. I mean, interestingly,

477
00:29:43,440 --> 00:29:45,760
Speaker 5: I was fired by President Trump. I'm a part time

478
00:29:45,760 --> 00:29:49,640
Speaker 5: position on January twenty first, and the email that I

479
00:29:49,800 --> 00:29:53,760
Speaker 5: received says on behalf of President Donald J. Trump, I

480
00:29:53,920 --> 00:29:57,280
Speaker 5: was terminated for my position. So maybe you could argue

481
00:29:57,280 --> 00:29:59,720
Speaker 5: it wasn't truly the president firing. But I think that

482
00:29:59,760 --> 00:30:02,479
Speaker 5: most would think, at least functionally, the president has fired

483
00:30:02,480 --> 00:30:04,080
Speaker 5: Grace from the interim position.

484
00:30:04,480 --> 00:30:08,440
Speaker 3: So the Trump administration then with Drew Hobba's appointment to

485
00:30:08,480 --> 00:30:11,160
Speaker 3: be the US Attorney for New Jersey, they allowed her

486
00:30:11,200 --> 00:30:14,880
Speaker 3: to resign as interim US Attorney, then appointed her as

487
00:30:14,960 --> 00:30:20,320
Speaker 3: first Assistant US Attorney, So that automatically means she's in

488
00:30:20,360 --> 00:30:24,000
Speaker 3: the role of acting US Attorney for another two hundred

489
00:30:24,000 --> 00:30:24,719
Speaker 3: and ten days.

490
00:30:25,400 --> 00:30:28,400
Speaker 5: That's right. So there are these three pools or categories,

491
00:30:28,440 --> 00:30:30,840
Speaker 5: and the first pool under the Vacancy's Act is the

492
00:30:30,880 --> 00:30:34,320
Speaker 5: first assistant to the position is the default acting official.

493
00:30:34,600 --> 00:30:37,560
Speaker 5: There's no further action that has to be taken by

494
00:30:37,560 --> 00:30:41,240
Speaker 5: the president. So once she's slotted into that first assistant position,

495
00:30:41,680 --> 00:30:44,800
Speaker 5: she then becomes the acting US Attorney.

496
00:30:45,120 --> 00:30:47,280
Speaker 3: At the end of her two hundred and ten days.

497
00:30:47,600 --> 00:30:50,320
Speaker 3: Can the Trump administration reappoint her.

498
00:30:50,920 --> 00:30:55,120
Speaker 5: No, Well, it's contested under five p. Forty six. The

499
00:30:55,200 --> 00:31:00,520
Speaker 5: administration and previous administrations have done successive one hundred and

500
00:31:00,520 --> 00:31:03,440
Speaker 5: twenty day appointments. So in the district of DC, we

501
00:31:03,520 --> 00:31:06,480
Speaker 5: had ed Martin. Ed Martin was not picked. They then

502
00:31:06,520 --> 00:31:09,520
Speaker 5: picked a different person for another one hundred and twenty

503
00:31:09,600 --> 00:31:14,160
Speaker 5: day service. Jimmy piro So, I think, although Congress did

504
00:31:14,200 --> 00:31:16,840
Speaker 5: not intend it when they put back these time limits

505
00:31:16,840 --> 00:31:19,480
Speaker 5: in two thousand and seven into section five forty six,

506
00:31:19,560 --> 00:31:21,720
Speaker 5: I think you could probably do a successive one to

507
00:31:21,720 --> 00:31:25,160
Speaker 5: twenty day appointment, but under the Vacancies Act, you can't.

508
00:31:25,160 --> 00:31:29,280
Speaker 5: The language there is clear that you can't just reappoint right,

509
00:31:29,320 --> 00:31:31,760
Speaker 5: you can't just keep doing new two hundred and ten

510
00:31:31,840 --> 00:31:35,320
Speaker 5: day acting officials. And there's even a penalty provision in

511
00:31:35,360 --> 00:31:38,959
Speaker 5: the Vacancies Act. If you violate the time limits, certain

512
00:31:39,040 --> 00:31:41,560
Speaker 5: actions can be voided by the court. So that would

513
00:31:41,600 --> 00:31:44,560
Speaker 5: give like a boon to criminal defendants. If she's served

514
00:31:44,560 --> 00:31:46,240
Speaker 5: past the two hundred ten days. Let me just say

515
00:31:46,240 --> 00:31:48,440
Speaker 5: about the two hundred ten days and how long she

516
00:31:48,520 --> 00:31:52,040
Speaker 5: can serve is that if there's a nomination pending, not

517
00:31:52,160 --> 00:31:54,000
Speaker 5: of her right, because she can't both be the first

518
00:31:54,000 --> 00:31:57,120
Speaker 5: assistant acting and the nominee. But if there's a nomination

519
00:31:57,200 --> 00:32:00,320
Speaker 5: pending of someone else, she can continue to serve during

520
00:32:00,360 --> 00:32:03,440
Speaker 5: the pendency of that nomination, plus another two hundred and

521
00:32:03,480 --> 00:32:06,840
Speaker 5: ten days if that nomination is returned, and she can

522
00:32:06,840 --> 00:32:09,360
Speaker 5: do it a second time, right, if there's a second nomination,

523
00:32:09,800 --> 00:32:12,440
Speaker 5: she can serve through the pendency of that second nominations

524
00:32:12,520 --> 00:32:15,120
Speaker 5: and a final two hundred and ten days at the end.

525
00:32:15,760 --> 00:32:18,320
Speaker 3: So that could actually end up being a lot of time,

526
00:32:18,840 --> 00:32:22,360
Speaker 3: especially with the hold on US Attorney nominees in the

527
00:32:22,400 --> 00:32:25,200
Speaker 3: Senate since May. And is there anything else that Trump

528
00:32:25,280 --> 00:32:31,160
Speaker 3: administration can do to nominate her again to be US Attorney.

529
00:32:31,160 --> 00:32:34,600
Speaker 5: So she can't both be the acting US Attorney and

530
00:32:34,680 --> 00:32:38,200
Speaker 5: the nominee. But I think we might look to the

531
00:32:38,280 --> 00:32:42,520
Speaker 5: Mark Esper situation in the first term of President Trump.

532
00:32:42,640 --> 00:32:46,040
Speaker 5: So Mark Esper had been confirmed to be one of

533
00:32:46,080 --> 00:32:48,600
Speaker 5: the service secretaries of the Defense Department. There was a

534
00:32:48,640 --> 00:32:50,480
Speaker 5: whole thing about who is going to be the next

535
00:32:50,600 --> 00:32:55,320
Speaker 5: Secretary of Defense. He became the acting Secretary of Defense.

536
00:32:55,680 --> 00:32:59,640
Speaker 5: President Trump decides, actually he wants Espert to become the

537
00:32:59,680 --> 00:33:03,239
Speaker 5: next secretary, but he can't both be the acting and

538
00:33:03,280 --> 00:33:06,240
Speaker 5: the nominee for the Secretary of Defense position. So what

539
00:33:06,400 --> 00:33:09,560
Speaker 5: happened is the White House coordinated with the Senate so

540
00:33:09,720 --> 00:33:13,880
Speaker 5: that Mark Esper continue to serve as acting. Then they

541
00:33:13,960 --> 00:33:17,400
Speaker 5: submitted the nomination to the Senate. Mark Esper had to

542
00:33:17,440 --> 00:33:21,080
Speaker 5: step down being acting. Another acting came into the role

543
00:33:21,160 --> 00:33:23,760
Speaker 5: for a few days. They had coordinated with the Senate,

544
00:33:23,880 --> 00:33:26,960
Speaker 5: so the confirmation process took only a few days as

545
00:33:27,000 --> 00:33:30,200
Speaker 5: a formal matter, from the date of the official submission

546
00:33:30,520 --> 00:33:33,680
Speaker 5: to the actual confirmation. And so I wonder, I know

547
00:33:33,800 --> 00:33:36,800
Speaker 5: nothing about the machinations in the White House, but I wonder,

548
00:33:37,080 --> 00:33:40,480
Speaker 5: if they really want her in and their sufficient support

549
00:33:40,480 --> 00:33:44,120
Speaker 5: in the Senate, could they coordinate with Senate leaders so

550
00:33:44,320 --> 00:33:47,320
Speaker 5: that she steps down for a few days when the

551
00:33:47,360 --> 00:33:51,640
Speaker 5: Senate is ready to vote on a nomination. They then

552
00:33:51,920 --> 00:33:56,040
Speaker 5: formally submit a nomination again, and there's just a pause

553
00:33:56,080 --> 00:33:59,800
Speaker 5: of several days of her serving as the acting US Attorney.

554
00:34:00,200 --> 00:34:04,960
Speaker 3: But there's this century old Senate custom called the blue slip,

555
00:34:05,280 --> 00:34:09,560
Speaker 3: and both New Jersey Democratic senators are against her nominations,

556
00:34:09,600 --> 00:34:11,799
Speaker 3: so they won't advance the blue slip right.

557
00:34:12,000 --> 00:34:15,239
Speaker 5: Clearly, Mark Esper had a lot more support, and not

558
00:34:15,400 --> 00:34:16,800
Speaker 5: just among Republicans.

559
00:34:17,600 --> 00:34:21,600
Speaker 3: As far as the standstill in federal criminal cases in

560
00:34:21,640 --> 00:34:25,840
Speaker 3: New Jersey, the first defendant who's fighting his prosecution on

561
00:34:25,920 --> 00:34:29,920
Speaker 3: the grounds that Haba is no longer an authorized US

562
00:34:30,040 --> 00:34:33,960
Speaker 3: attorney was to be tried on August fourth on drug

563
00:34:34,000 --> 00:34:38,360
Speaker 3: trafficking and firearms related charges, and the chief Judge of

564
00:34:38,440 --> 00:34:41,879
Speaker 3: the Third Circuit has reassigned the case to a judge

565
00:34:41,920 --> 00:34:45,840
Speaker 3: in Pennsylvania. Does that indicate that the Third Circuit's chief

566
00:34:45,960 --> 00:34:50,000
Speaker 3: judge thinks there's a problem here too, Unlike.

567
00:34:49,680 --> 00:34:55,000
Speaker 6: When litigant speak a stay or Lamaran junction or ro

568
00:34:55,800 --> 00:34:58,800
Speaker 6: and the court has to assess the likelihood of the merit.

569
00:34:59,040 --> 00:35:01,399
Speaker 6: I don't think that's quite this thing here. The way

570
00:35:01,480 --> 00:35:05,200
Speaker 6: I'm reading this is that this is not a frivolous argument,

571
00:35:05,440 --> 00:35:08,840
Speaker 6: and they want to figure it out before they have

572
00:35:09,040 --> 00:35:13,040
Speaker 6: any issues with sort of conflict or perceptions of bias,

573
00:35:13,120 --> 00:35:15,680
Speaker 6: because after all, it was the District Court of New

574
00:35:15,760 --> 00:35:19,680
Speaker 6: Jersey who chose ms grace. I'm not reading into that

575
00:35:19,880 --> 00:35:25,160
Speaker 6: action that they think that this litigation is going to succeed,

576
00:35:25,800 --> 00:35:29,719
Speaker 6: just that that there are arguable claims, and even if

577
00:35:29,760 --> 00:35:32,919
Speaker 6: it's not going to succeed, right, I actually think it's

578
00:35:32,920 --> 00:35:35,319
Speaker 6: an uphill battle. I'm not saying it won't succeed. I

579
00:35:35,360 --> 00:35:38,400
Speaker 6: just think it's an uphill battle against the government on

580
00:35:38,480 --> 00:35:42,560
Speaker 6: these arguments. All of this is creating chaos in New Jersey.

581
00:35:42,600 --> 00:35:45,880
Speaker 6: I mean right now, it's essentially frozen, it's going to

582
00:35:46,000 --> 00:35:49,120
Speaker 6: slow step down, and it's going to change workload. If

583
00:35:49,239 --> 00:35:52,000
Speaker 6: all of that were in New Jersey then has to

584
00:35:52,040 --> 00:35:55,839
Speaker 6: be heard by district court judges in other districts. It's

585
00:35:56,000 --> 00:35:56,960
Speaker 6: just a mess.

586
00:35:57,000 --> 00:36:01,280
Speaker 3: The administration is using a similar playbook for US attorney's

587
00:36:01,400 --> 00:36:05,879
Speaker 3: offices in Los Angeles, Las Vegas and earlier this month

588
00:36:05,920 --> 00:36:09,440
Speaker 3: in Albody, New York. What's the downside to this maneuvering.

589
00:36:10,200 --> 00:36:13,960
Speaker 6: I do think that these moves by the Trump administrations

590
00:36:14,320 --> 00:36:17,319
Speaker 6: are legal, even if there are possible arguments on the

591
00:36:17,360 --> 00:36:21,719
Speaker 6: other side. But the chaotic way it's being carried out

592
00:36:22,400 --> 00:36:28,600
Speaker 6: is shining public attention to the administration's choices, to these

593
00:36:28,719 --> 00:36:32,200
Speaker 6: temporary picks who normally don't get much attention at all.

594
00:36:32,680 --> 00:36:35,799
Speaker 6: So even if they're upheld as a legal matter. There's

595
00:36:35,920 --> 00:36:39,000
Speaker 6: now so much more oversight, and they're going to be

596
00:36:39,120 --> 00:36:43,239
Speaker 6: consequences for the Trump administration later on.

597
00:36:43,840 --> 00:36:46,399
Speaker 3: And I have to say, this is such a confusing

598
00:36:47,080 --> 00:36:47,840
Speaker 3: legal area.

599
00:36:48,280 --> 00:36:52,120
Speaker 5: There's a grave story. So in twenty seventeen, the Supreme

600
00:36:52,160 --> 00:36:55,040
Speaker 5: Court heard a case about the Federal Vacancy's Reform Act

601
00:36:55,080 --> 00:36:56,920
Speaker 5: and it was actually about who could both be the

602
00:36:56,960 --> 00:37:00,840
Speaker 5: acting and the nominee, and an oral argument, Justice Kagan

603
00:37:00,960 --> 00:37:03,440
Speaker 5: asked the lawyer, why don't you just go out to

604
00:37:03,520 --> 00:37:06,880
Speaker 5: the public and say the Vacancies Act has been violated?

605
00:37:07,160 --> 00:37:09,759
Speaker 5: And the lawyer looks at her and says, because then

606
00:37:09,760 --> 00:37:12,239
Speaker 5: I would have to explain the Vacancies Act. And the

607
00:37:12,280 --> 00:37:15,799
Speaker 5: courtroom burst into laughter. And there's something to that. It's

608
00:37:15,800 --> 00:37:19,240
Speaker 5: an incredibly complex statue.

609
00:37:18,640 --> 00:37:21,239
Speaker 3: But you certainly know it's ins and outs. Thanks so much,

610
00:37:21,320 --> 00:37:25,319
Speaker 3: And that's Stanford Law professor and Joseph O'Connell, and that's

611
00:37:25,320 --> 00:37:27,960
Speaker 3: it for this edition of the Bloomberg Law Show. Remember

612
00:37:28,000 --> 00:37:30,080
Speaker 3: you can always get the latest legal news on our

613
00:37:30,120 --> 00:37:33,560
Speaker 3: Bloomberg Law Podcast. You can find them on Apple Podcasts,

614
00:37:33,640 --> 00:37:38,560
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615
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Speaker 3: Slash Law, and remember to tune into The Bloomberg Law Show,

616
00:37:42,160 --> 00:37:45,959
Speaker 3: every weeknight at ten pm Wall Street Time. I'm June

617
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Speaker 3: Grosso and you're listening to Bloomberg