Latest / Bloomberg Law / New Jersey Criminal Courts Frozen

Transcript

New Jersey Criminal Courts Frozen · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: You may be familiar with Elena Haba from her vigorous
0:12
Speaker 1: defense of President Donald Trump in three civil lawsuits in
0:16
Speaker 1: New York which Trump lost, including a defamation suit brought
0:20
Speaker 1: by writer Egene Carroll.
0:23
Speaker 2: This is wrong, but we are in the state of
0:25
Speaker 2: New York.
0:25
Speaker 1: We are in a New York Jerry, and that is
0:27
Speaker 1: why we are seeing these witch hunts, these hoaxes, as
0:30
Speaker 1: he calls them, and this is another one of them.
0:32
Speaker 2: Be brought in New York.
0:35
Speaker 1: I was yelled at, and I've had a judge who
0:37
Speaker 1: is unhinged slamming a table.
0:40
Speaker 2: Let me be very clear.
0:41
Speaker 3: I don't tolerate that in my life.
0:43
Speaker 2: I'm not going to tolerate it here.
0:45
Speaker 1: What we aren't witnessing today is the blatant and unapologetic
0:49
Speaker 1: weaponization of the criminal justice system. Trump appointed Haba, who's
0:55
Speaker 1: never worked as a prosecutor, as acting US Attorney for
1:00
Speaker 1: in March, but both the state's Democratic senators opposed her nomination,
1:05
Speaker 1: and she became the second Trump US attorney nominee to
1:09
Speaker 1: fail to receive Senate confirmation. When Habba's one hundred twenty
1:14
Speaker 1: day interim term expired. Federal judges in the state chose
1:18
Speaker 1: her top assistant, Desiree Grace, to succeed her, but hours later,
1:23
Speaker 1: Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi
1:28
Speaker 1: then named her to be the chief Deputy in the
1:30
Speaker 1: U s Attorney's Office, meaning she'll automatically inherit the title
1:35
Speaker 1: of acting US Attorney for New Jersey. The procedural maneuvering
1:40
Speaker 1: opens the door to legal challenges from defendants, and this week,
1:44
Speaker 1: a defendant facing an August fourth trial on drug trafficking
1:48
Speaker 1: and firearms related charges files such a challenge, asking that
1:52
Speaker 1: his case be dismissed because Haba is no longer an
1:55
Speaker 1: authorized US attorney. More such challenges are sure to be filed.
2:00
Speaker 1: My guest is Stanford law professor and Joseph O'Connell, and
2:05
Speaker 1: will you start by explaining the law around interim US
2:09
Speaker 1: attorney appointments.
2:10
Speaker 3: Sure, so, normally each district has a US attorney who's
2:15
Speaker 3: nominated by the President and confirmed by the Senate, but
2:19
Speaker 3: there are often incredible delays in that process. So Congress
2:23
Speaker 3: has enacted two statutes that provide for temporary service of
2:29
Speaker 3: US Attorney's wall, the traditional appointments process churns, so the
2:34
Speaker 3: first way to get a temporary US attorney is through
2:39
Speaker 3: twenty eight USC. Five point forty six, and that allows
2:43
Speaker 3: the Attorney General to pick what is called an interim
2:48
Speaker 3: US attorney and that person can serve for one hundred
2:51
Speaker 3: and twenty days, and then at the expiration of that
2:55
Speaker 3: one twenty day period, the district court in that district
2:59
Speaker 3: may doesn't have to May pick an interim US attorney
3:03
Speaker 3: who can serve until someone is confirmed to the position.
3:08
Speaker 3: There's also another statute that covers more than just US attorneys,
3:12
Speaker 3: so five forty six just covers US attorneys. There's something
3:15
Speaker 3: called the Federal Vacancy's Reform Act of nineteen ninety eight,
3:19
Speaker 3: which is the latest in a long history of vacancies acts.
3:22
Speaker 3: We've had them since the late eighteenth century. And the
3:26
Speaker 3: Vacancy's Act allows acting US attorneys and also acting leaders
3:32
Speaker 3: in a bunch of other positions, and they are there
3:35
Speaker 3: are also time limits. There's no role for the district court.
3:39
Speaker 3: And I would say maybe two of the biggest differences
3:42
Speaker 3: between the five forty six statute just for US attorneys
3:46
Speaker 3: and the Federal Vacancies Act of nineteen ninety eight are
3:48
Speaker 3: the followings. So first, under five forty six, anyone can
3:53
Speaker 3: be picked as the interim US Attorney by the Attorney
3:56
Speaker 3: General and then by the District Court. The person doesn't
4:00
Speaker 3: have to already be within the Department of Justice. That's
4:03
Speaker 3: not true for the Federal Vacancy's Reform Act. For the
4:06
Speaker 3: Federal Vacancy's Reform Act, there are three categories where people
4:10
Speaker 3: can be drawn from and they all have to be
4:13
Speaker 3: already within the government. And the second difference is that
4:16
Speaker 3: under five p. Forty six you can both be the
4:19
Speaker 3: interim and the nominee for the position, and under the
4:23
Speaker 3: Vacancies Act, in very few circumstances you can be. But
4:28
Speaker 3: in the circumstance in New Jersey, she couldn't both be
4:31
Speaker 3: the acting US Attorney and the nominee.
4:35
Speaker 1: So the one hundred and twenty days was running out
4:37
Speaker 1: and New Jersey federal judges chose Habbah's hand picked first assistant,
4:43
Speaker 1: Desiree Grace, to replace her, but within hours the Attorney
4:47
Speaker 1: General fired Grace. Is the ag allowed to fire Grace
4:52
Speaker 1: once the judges have appointed her.
4:55
Speaker 3: No, so Attorney General Bondi could fire her from being
4:59
Speaker 3: first assistant. That's within her powers. But although the Attorney
5:03
Speaker 3: General is supposed to pick the US attorney in the
5:06
Speaker 3: interim capacity under five forty six, she cannot fire someone
5:10
Speaker 3: who is picked by the Court. And why is that
5:12
Speaker 3: Because under constitutional law, the Supreme Court has held in
5:16
Speaker 3: multiple cases that the power to remove follows the power
5:20
Speaker 3: to appoint for these inferior offices, which US attorneys are,
5:25
Speaker 3: unless Congress has specified otherwise. Now, under that rule, the
5:29
Speaker 3: Court has appointed, so only the Court can remove. But
5:33
Speaker 3: that runs up against another constitutional law principle about separation
5:37
Speaker 3: of powers. So the Office of Legal Counsel has long
5:40
Speaker 3: held that the president and only the president, can fire
5:43
Speaker 3: a court appointed interim US attorney. And we saw this
5:47
Speaker 3: happen in the first Trump administration when President Trump fired
5:50
Speaker 3: Jeff Berman, and there was a bit of a skerfuffle
5:53
Speaker 3: about it because initially it seemed as if Attorney General
5:56
Speaker 3: bar was pushing him out, and finally it kind of
5:59
Speaker 3: came down and the President got involved and Jeff Berman left,
6:03
Speaker 3: So here.
6:04
Speaker 1: The president could fire Grace with no problem.
6:07
Speaker 3: That's right, And I think you could say that happened arguably.
6:11
Speaker 3: I mean after Attorney General Bondi's ex post. I mean,
6:14
Speaker 3: we're running government through ex posts. But after Attorney General
6:17
Speaker 3: Pam Bondi's ex post, which doesn't talk about the president's
6:20
Speaker 3: authority at all, Todd Blanche, who's the Deputy Attorney General,
6:24
Speaker 3: says that pursue into presidential authority. They're firing Grace as
6:31
Speaker 3: the court appointed a US attorney, and I think that's
6:34
Speaker 3: probably enough. I mean, you could argue about the wording.
6:37
Speaker 3: I mean, interestingly, I was fired by President Trump from
6:40
Speaker 3: a part time position on January twenty first, and the
6:44
Speaker 3: email that I received says, on behalf of President Donald J. Trump,
6:49
Speaker 3: I was terminated for my position, So maybe you could
6:52
Speaker 3: argue it wasn't truly the president firing. But I think
6:55
Speaker 3: that most would think, at least functionally, the president has
6:57
Speaker 3: fired Grace from the interim position.
7:00
Speaker 1: The Trump administration did is withdrew her appointment to be
7:04
Speaker 1: the US Attorney for New Jersey, so they allowed her
7:07
Speaker 1: to resign as interim US Attorney, then appointed her as
7:10
Speaker 1: first Assistant US Attorney, So that automatically means she's in
7:16
Speaker 1: the role of acting US attorney for another two hundred
7:19
Speaker 1: and ten days.
7:21
Speaker 3: That's right. So there are these three pools or categories
7:24
Speaker 3: I talked about, and the first pool under the Vacancy's
7:27
Speaker 3: Act is the first assistant to the position is the
7:29
Speaker 3: default acting official. There's no further action that has to
7:33
Speaker 3: be taken by the president. So once she's slotted into
7:36
Speaker 3: that first assistant position, she then becomes the acting US Attorney.
7:42
Speaker 1: At the end of her two hundred ten days. Can
7:45
Speaker 1: the Trump administration reappoint her?
7:49
Speaker 3: No, Well, it's contested. Under five forty six. The administration
7:54
Speaker 3: and previous administrations have done successive one hundred and twenty
7:59
Speaker 3: day appointment. So in the District of DC, we had
8:02
Speaker 3: ed Martin. Ed Martin was not picked. They then picked
8:05
Speaker 3: a different person for another one hundred and twenty day service.
8:09
Speaker 3: Jamie kiro So, I think, although Congress did not intend
8:13
Speaker 3: it when they put back these time limits in two
8:15
Speaker 3: thousand and seven into section five forty six, I think
8:18
Speaker 3: you could probably do a successive one to twenty day appointment,
8:21
Speaker 3: but under the Vacancies Act you can't. The language there
8:24
Speaker 3: is clear that you can't just reappoint, right, you can't
8:28
Speaker 3: just keep doing new two hundred and ten day acting officials.
8:32
Speaker 3: And there's even a penalty provision in the Vacancies Act.
8:35
Speaker 3: If you violate the time limits, certain actions can be
8:39
Speaker 3: voided by the court, So that would give like a
8:41
Speaker 3: boon to criminal defendants if she's served past the two
8:44
Speaker 3: hundred ten days. Let me just say two things about
8:46
Speaker 3: the two hundred ten days and how long she can serve.
8:49
Speaker 3: Is that if there's a nomination pending, not of her right,
8:52
Speaker 3: because she can't both be the first assistant acting and
8:55
Speaker 3: the nominee. But if there's a nomination pending of someone else,
8:58
Speaker 3: she can continue to or during the pendency of that nomination,
9:02
Speaker 3: plus another two hundred and ten days if that nomination
9:05
Speaker 3: is returned, and she can do it a second time. Right,
9:08
Speaker 3: If there's a second nomination, she can serve through the
9:11
Speaker 3: pendency of that second nominations and a final two hundred
9:13
Speaker 3: and ten days at the end. The other thing I
9:16
Speaker 3: would say is that everyone is assuming that she only
9:18
Speaker 3: has two hundred and ten days to serve because they're
9:21
Speaker 3: dating the vacancy from the end of the interim service.
9:24
Speaker 3: But I do think there's an argument, likely not as strong,
9:28
Speaker 3: that the vacancy actually dates from the start of the administration,
9:32
Speaker 3: from when we kind of consider the departure of the
9:35
Speaker 3: last Senate confirmed person, and under the Vacancy's Act, you
9:38
Speaker 3: would have three hundred days from January twentieth, and so
9:43
Speaker 3: that's like another thing about the time limits of her service.
9:46
Speaker 1: It seems pretty obvious that the Trump administration wants her
9:50
Speaker 1: in this position. Is there anything else they can do
9:52
Speaker 1: so that she can be nominated again to be US Attorney?
9:56
Speaker 3: So she can't both be the acting US Attorney and
10:00
Speaker 3: the nominee. But I think we might look to the
10:04
Speaker 3: Mark Esper situation in the first term of President Trump.
10:08
Speaker 3: So Mark Esper had been confirmed to be one of
10:12
Speaker 3: the service secretaries of the Defense Department. There was a
10:14
Speaker 3: whole thing about who is going to be the next
10:16
Speaker 3: Secretary of Defense. He became the acting Secretary of Defense.
10:21
Speaker 3: President Trump decides, actually he wants Esbert to become the
10:25
Speaker 3: next secretary, but he can't both be the acting and
10:29
Speaker 3: the nominee for the Secretary of Defense position. So what
10:32
Speaker 3: happened is the White House coordinated with the Senate so
10:36
Speaker 3: that Mark Esper continue to serve as acting. Then they
10:40
Speaker 3: submitted the nomination to the Senate. Mark Esper had to
10:43
Speaker 3: step down being acting. Another acting came into the role
10:47
Speaker 3: for a few days, they had coordinated with the Senate,
10:50
Speaker 3: so the confirmation process took only a few days as
10:53
Speaker 3: a formal matter, from the date of the official submission
10:57
Speaker 3: to the actual confirmation. And so I wonder, I know
11:00
Speaker 3: nothing about the machinations in the White House, but I wonder,
11:03
Speaker 3: if they really want are in and their sufficient support
11:07
Speaker 3: in the Senate, could they coordinate with Senate leaders so
11:11
Speaker 3: that she steps down for a few days when the
11:14
Speaker 3: Senate is ready to vote on a nomination. They then
11:18
Speaker 3: formally submit a nomination again, and there's just a pause
11:22
Speaker 3: of several days of her serving as the acting US Attorney.
11:27
Speaker 1: But there's this centurial Senate custom called the blue slip,
11:32
Speaker 1: and both New Jersey Democratic senators are against her nominations,
11:36
Speaker 1: so they won't advance the blue slip.
11:38
Speaker 3: Right, Clearly, Mark Esper had a lot more support, and
11:42
Speaker 3: not just among Republicans. Second, would this be an opportunity
11:46
Speaker 3: to make changes to the blue slip process when it
11:50
Speaker 3: comes to the US Attorney position?
11:53
Speaker 1: Coming up next? Disarray in New Jersey's federal criminal courts.
11:57
Speaker 1: I'm June Grosso and you're listening to Bloomberg. Federal criminal
12:01
Speaker 1: cases in New Jersey have been thrown into turmoil by
12:05
Speaker 1: the controversy over whether Alina Habba, the acting US Attorney,
12:10
Speaker 1: was legally appointed. Proceedings in federal criminal court have basically
12:15
Speaker 1: been frozen as the controversy plays out. In the first
12:18
Speaker 1: such case, a man's schedule to be tried on August
12:21
Speaker 1: fourth on drug trafficking and firearms related charges is fighting
12:26
Speaker 1: his prosecution on the grounds that Habba is no longer
12:30
Speaker 1: an authorized US attorney and that prosecutors can't move forward
12:34
Speaker 1: with the case without a validly appointed official. The Chief
12:38
Speaker 1: Judge of the Third Circuit Court of Appeals has already
12:42
Speaker 1: reassigned that case from a New Jersey judge to the
12:46
Speaker 1: chief judge for the Middle District of Pennsylvania. It's surely
12:49
Speaker 1: not the last such motion from a defendant facing federal
12:53
Speaker 1: charges in New Jersey. I've been talking to Stamford law
12:56
Speaker 1: professor and Joseph O'Connell and the defendant. One's first argument
13:01
Speaker 1: is that Habbah's reappointment violates the Federal Vacancy's Reform Act
13:07
Speaker 1: because it prohibits people whose nominations have been submitted to
13:11
Speaker 1: the Senate from serving in an acting capacity for the
13:15
Speaker 1: same office, regardless of a subsequent withdrawal of the nomination.
13:21
Speaker 4: So the first claim is a statutory claim, and it's
13:24
Speaker 4: about whether she can serve as the acting official under
13:28
Speaker 4: the Federal Vacancy's Reform Act. And under the Federal Vacancy's
13:32
Speaker 4: Reformat which is an incredibly complicated statute, it says that
13:35
Speaker 4: someone cannot serve as an acting if quote, the President
13:39
Speaker 4: submits a nomination of such person to the Senate for
13:43
Speaker 4: appointment to such office end quote. So the argument that's
13:47
Speaker 4: being made is that although the nomination was withdrawn at
13:52
Speaker 4: some point, the President did in fact submit the nomination,
13:57
Speaker 4: and under the language of the Vacancies Act, she cannot
14:00
Speaker 4: be the acting US Attorney. Now, I think it's possible,
14:04
Speaker 4: and the government's going to argue that that language can
14:07
Speaker 4: be read another way. I mean, the verb on submission
14:10
Speaker 4: is in present tense, right, the President submits a nomination,
14:15
Speaker 4: so I think that can alternatively be read to say
14:18
Speaker 4: that the nomination is pending. And so the withdrawal of
14:22
Speaker 4: her nomination actually does permit her to be the acting
14:26
Speaker 4: because she is no longer the nominee. But in the
14:30
Speaker 4: chaotic net of events, this is going to have to
14:33
Speaker 4: get litigated because both readings are plausible. I think the
14:38
Speaker 4: government's reading is a bit better, but the other reading
14:42
Speaker 4: is not ruled out. So that's the statutory claim that.
14:45
Speaker 1: Hasn't been litigated before that issue.
14:48
Speaker 4: I cannot think of an example where the President has
14:53
Speaker 4: had to withdraw a nominations in order to allow someone
14:57
Speaker 4: to be the acting under the Federal day can sees
15:00
Speaker 4: re format I will say that in kind of lure
15:05
Speaker 4: of the Vacancies Act, we think, well, so long as
15:07
Speaker 4: a nomination is pending, in many circumstances, you can have
15:12
Speaker 4: an acting official.
15:14
Speaker 1: The second argument is that Hobba's reappointment violates twenty eight Usc.
15:19
Speaker 1: Section five forty six D, saying that once an interim
15:23
Speaker 1: US attorney statutory term expires without Senate confirmation, the exclusive
15:29
Speaker 1: authority to appoint an interim us attorney shifts to the
15:33
Speaker 1: district court, and that the Attorney General's dismissal of Grace
15:37
Speaker 1: and reinstatement of Habba constitutes unlawful executive interference.
15:44
Speaker 4: Yeah, so I can read this both as a statutory
15:47
Speaker 4: claim and a constitutional claim. I think a statutory claim
15:51
Speaker 4: is pretty hard because the language of five forty six
15:55
Speaker 4: says that the district court you can appoint someone, not
15:59
Speaker 4: that they have to appoint someone, and so it allows
16:03
Speaker 4: the option of district court appointment, which under the appointments clause,
16:08
Speaker 4: the Congress can choose a court of law as one
16:10
Speaker 4: of the alternatives for selection of temporary officials for these
16:14
Speaker 4: lower levels inferior offices. I do think that there's maybe
16:20
Speaker 4: a linked constitutional claim, and that's the idea that once
16:24
Speaker 4: the district court does exercise that power, so the power
16:27
Speaker 4: is optional. But here they did exercise it. They chose misgrace,
16:32
Speaker 4: and you could make the constitutional argument that once she's chosen,
16:37
Speaker 4: the only way to remove her is by the person
16:40
Speaker 4: who picked her, which is the court. This is the
16:42
Speaker 4: idea that the power to remove follows the power to appoint. Now,
16:46
Speaker 4: I do think there's an Office of Legal Counsel opinion
16:49
Speaker 4: here that raises separation of powers issues, and OLLC has
16:54
Speaker 4: appined claimed but the president can remove a district court appointment,
16:59
Speaker 4: and I think that's probably right. I do think there
17:02
Speaker 4: may be yet another legal issue incorporated, and that's whether,
17:07
Speaker 4: given that we have Section five forty six, whether the
17:11
Speaker 4: White House can even turn to the federal vacancy's reformat
17:16
Speaker 4: This is an issue in President Trump's first term over
17:19
Speaker 4: about who was the proper acting or temporary head of
17:23
Speaker 4: the Consumer Financial Protection Bureau. We had Beander English kind
17:28
Speaker 4: of came in under Dodd Frank's provision, a specific provision
17:32
Speaker 4: about the CSPB.
17:33
Speaker 2: But then we had Nick.
17:34
Speaker 4: Mulbany, who came in under the Vacancies Act. They both
17:38
Speaker 4: turned up to work the Monday after Thanksgiving and one
17:42
Speaker 4: of the issues was, well, if there's a specific succession provision,
17:46
Speaker 4: can you have the general Vacancies Act that's available? And
17:50
Speaker 4: I think that can get litigated as well. I do
17:54
Speaker 4: think that both are available, but it's tricky because the
17:58
Speaker 4: Vacancy's Act says that it's cool. The exclusive means for
18:02
Speaker 4: temporarily authorizing and acting official to perform an assumptions and
18:05
Speaker 4: duties of at a covered office by the Vacancies Act.
18:09
Speaker 4: But it also permits quote a statutory provision expressly end
18:14
Speaker 4: quote to provide for an alternative. And so the question
18:17
Speaker 4: is how do you read that exclusive language? And generally
18:22
Speaker 4: the courts, not in the US Attorney context but in
18:25
Speaker 4: other contexts have said, well, sort of in calling the
18:29
Speaker 4: Vacancies Act the exclusive means, that's true unless there's another
18:34
Speaker 4: apple gooble statute, the ideas that Congress has recognized that
18:37
Speaker 4: there will be cases where the Vacancy's Reform Act is
18:40
Speaker 4: actually non exclusive. So what does that mean that you
18:43
Speaker 4: could actually have both? But I think that could also
18:46
Speaker 4: play out as a claim. And all of this is
18:49
Speaker 4: creating chaos and it's going to slow down the activity
18:54
Speaker 4: of the U. S. Attorney's Office in New Jersey. I mean,
18:56
Speaker 4: right now, it's essentially frozen.
18:59
Speaker 1: This case was originally assigned, of course, to a judge
19:02
Speaker 1: in New Jersey, but the Chief Judge of the Third
19:05
Speaker 1: Circuit Court of Appeals has reassigned the case to a
19:09
Speaker 1: judge in Pennsylvania. In fact, the chief Judge for the
19:12
Speaker 1: Middle District of Pennsylvania, and the one sentence order said
19:16
Speaker 1: the trial is being moved in the public interest. Does
19:20
Speaker 1: that indicate that the Third Circuit's chief judge thinks there's
19:24
Speaker 1: a problem here too.
19:25
Speaker 4: Unlike when litigant speak a stay or pilmarian junction or
19:31
Speaker 4: tro and the court has to assess the likelihood of
19:34
Speaker 4: the merit, I don't think that's quite the same here.
19:38
Speaker 4: The way I'm reading this is that this is not
19:40
Speaker 4: a frivolous argument, and they want to figure it out
19:46
Speaker 4: before they have any issues with sort of conflict or
19:50
Speaker 4: perceptions of bias, because after all, it was the District
19:54
Speaker 4: Court of New Jersey who chose msgrace under five forty sixty.
19:59
Speaker 4: But I'm not reading into that action that they think
20:03
Speaker 4: that this litigation is going to succeed, just that that
20:07
Speaker 4: there are arguable claims and even if it's not going
20:11
Speaker 4: to succeed, right, I actually think it's an uphill battle.
20:14
Speaker 4: I'm not saying it won't succeed. I just think it's
20:16
Speaker 4: an uphill battle against the government on these arguments. It's
20:21
Speaker 4: going to slow step down, and it's going to change workload.
20:24
Speaker 4: If all of that work in New Jersey then has
20:28
Speaker 4: to be heard by district court judges in other districts,
20:31
Speaker 4: it's just a mess. Even assuming the government is likely
20:35
Speaker 4: to win in the end, it's still creating an incredible
20:38
Speaker 4: amount of chaos. These various actions by the Trump administration.
20:43
Speaker 1: Did something similar happen with John Sarcone, who was the
20:47
Speaker 1: interim US Attorney for the Albany based Northern District of
20:52
Speaker 1: New York.
20:53
Speaker 3: It had some similarity, so he had been picked to
20:57
Speaker 3: be the interim US attorney. I will say both Tony
21:00
Speaker 3: and Haba. Seems like they were picked by the president
21:03
Speaker 3: to be the interim US Attorney. And one interesting wrinkle
21:06
Speaker 3: is Section five forty six actually says the Attorney General
21:10
Speaker 3: is supposed to pick, not the president. I think, given
21:13
Speaker 3: cabinet department control by the White House, I think it's fine.
21:16
Speaker 3: But it's an interesting little wrinkle that criminal defendants might
21:20
Speaker 3: be able to go after. But yeah, so he was
21:22
Speaker 3: picked as interim US Attorney and they are the District
21:25
Speaker 3: Court didn't pick him, but didn't pick anyone else. So
21:28
Speaker 3: the Northern of New York just didn't exercise their statutory
21:32
Speaker 3: authority to name an interim the US Attorney. And he
21:36
Speaker 3: got himself named as special attorney to the Attorney General.
21:40
Speaker 3: And then somehow, as I'm understanding the news reporting, got
21:45
Speaker 3: that position to be named as the first assistant position,
21:50
Speaker 3: and so again kind of by default, he becomes the
21:53
Speaker 3: acting US Attorney. Now there, I do think there is
21:56
Speaker 3: a question like, is this like the ken Kuchinelli situation.
22:00
Speaker 3: Did we just create a new first assistant position in
22:04
Speaker 3: the Northern District of New York? How did the succession
22:07
Speaker 3: order get changed? I'd like to know a lot more
22:10
Speaker 3: about what went down in the Northern District of New York.
22:14
Speaker 3: I will say, in both these cases and in other cases,
22:17
Speaker 3: it's a little weird to have a court role in
22:21
Speaker 3: appointing US attorneys. Now I think it's fine. We have
22:24
Speaker 3: this case called Morrison versus Olsen, where the Supreme Court
22:28
Speaker 3: upheld with only Justice Scalia dissenting the appointment of an
22:33
Speaker 3: independent council by a court panel. But it does raise
22:37
Speaker 3: certain separation of powers concerns, and actually Justice Thomas, in
22:41
Speaker 3: his descent in the Braidwood case this past term, has
22:45
Speaker 3: a footnote saying that he thinks court appointed inferior executive
22:50
Speaker 3: officers are unconstitutional, so that there should be sort of
22:53
Speaker 3: no role for the Court in this process.
22:56
Speaker 1: What's the downside for the Trump administration with this maneuvering.
23:00
Speaker 4: I do think that these moves by the Trump administration
23:04
Speaker 4: are legal, even if there are plausible arguments on the
23:08
Speaker 4: other side. But the chaotic way it's being carried out
23:13
Speaker 4: is shining public attention to the administration's choices for these positions,
23:20
Speaker 4: to these temporary picks who normally don't get much attention
23:24
Speaker 4: at all. So even if they're upheld as a legal matter,
23:28
Speaker 4: there's now so much more oversight and worry, and they're
23:32
Speaker 4: going to be consequences for the Trump administration later on.
23:37
Speaker 1: And I have to say, this is such a confusing
23:41
Speaker 1: legal area.
23:42
Speaker 3: There's a great story. So in twenty seventeen, the Supreme
23:46
Speaker 3: Court heard a case about the Federal Vacancy's Reform Act,
23:49
Speaker 3: and it was actually about who could both be the
23:51
Speaker 3: acting and the nominee and an oral argument, Justice Kagan
23:55
Speaker 3: asks the lawyer who wants there to be a Vacancy's
23:58
Speaker 3: Act violation found. She says, why don't you just go
24:01
Speaker 3: out to the public and say the Vacancies Act has
24:04
Speaker 3: been violated? And the lawyer looks at her and says,
24:08
Speaker 3: because then I would have to explain the Vacancies Act.
24:11
Speaker 3: And the courtroom burst into laughter. And there's something to that.
24:15
Speaker 3: It's an incredibly complex statute.
24:18
Speaker 1: Well, you certainly know every section and sub section of it.
24:22
Speaker 1: Thanks so much.
24:22
Speaker 2: An.
24:23
Speaker 1: That's Stanford Law School professor and Joseph O'Connell coming up
24:27
Speaker 1: next on the Bloomberg Law Show. A mass exodus from
24:30
Speaker 1: the US Attorney's Office in Los Angeles. I'm June Grosso
24:35
Speaker 1: and you're listening to Bloomberg. There's been a mass exodus
24:41
Speaker 1: from the Los Angeles US Attorney's Office in the three
24:44
Speaker 1: plus months that Bill Aselli has been running the office.
24:48
Speaker 1: May Espoto Bloomberg Law LA Courts correspondent has written about
24:53
Speaker 1: his tenure, and she joins me now start by telling
24:56
Speaker 1: us how many prosecutors and from what levels have left
25:01
Speaker 1: the office since he took the helm.
25:04
Speaker 2: So since the beginning of the year the number that
25:08
Speaker 2: our sources have reported to us is eighty eighty people
25:12
Speaker 2: have left the office, which is about a third of
25:15
Speaker 2: the legal staff. And they've been leaving from many different
25:19
Speaker 2: levels of the office. They include the criminal chief, the
25:23
Speaker 2: head of public corruption, the head of immigration enforcement, which
25:27
Speaker 2: is especially noteworthy given that in June there were major
25:30
Speaker 2: anti deportation protests in Los Angeles and a major immigration crackdown.
25:35
Speaker 2: People who wouldn't have expected to leave the office and
25:38
Speaker 2: have been part of it across many different presidential administrations.
25:42
Speaker 2: Saying that this is too much you and.
25:44
Speaker 1: Your colleague Ben Penn spoke to more than thirty current
25:48
Speaker 1: and former employees at the office and other lawyers who
25:53
Speaker 1: interact with them. Is part of the problem that Assie
25:57
Speaker 1: has a strident way of communicating.
26:00
Speaker 2: That's a good way of putting it, Yes, Ben and
26:02
Speaker 2: I spoke with more than thirty people. They described him
26:05
Speaker 2: as having a strident a communication style. They described him yelling.
26:10
Speaker 2: So four of the current and former federal prosecutors who
26:14
Speaker 2: spoke with Ben told him that as Day shouted blank
26:20
Speaker 2: the Justice Manual at a team of his attorneys that
26:23
Speaker 2: was pursuing a protest related indictment. You can fill in
26:27
Speaker 2: the blank with whatever word of your choice, but it
26:29
Speaker 2: was a colorful one. And that happened, according to these sources,
26:33
Speaker 2: during a break from a presentation to a grand jury.
26:36
Speaker 2: And what they told us is that a grand juror
26:39
Speaker 2: actually overheard the exchange.
26:42
Speaker 1: The old saying is that a prosecutor can get a
26:45
Speaker 1: grand jury to indict a ham sandwich. But has the
26:49
Speaker 1: office been having problems getting grand jurors to return indictments?
26:54
Speaker 2: Right? That is something that La Times actually reported on
26:58
Speaker 2: a few days before we did. We're seeing this kind
27:02
Speaker 2: of surgeon grand jury denials, which is a bit rare
27:06
Speaker 2: because they have a much lower bar of proof to
27:09
Speaker 2: return indictments than a trial jury would need to convict.
27:12
Speaker 2: And so a couple of the lawyers that Ben spoke
27:17
Speaker 2: with said that if Sale is instructing prosecutors to take
27:22
Speaker 2: these cases from an LA grand jury to an Orange
27:26
Speaker 2: County grand jury that is in a more republican area
27:31
Speaker 2: compared to blue Los Angeles.
27:35
Speaker 1: When he first started, what kinds of cases was he
27:38
Speaker 1: concentrating on.
27:40
Speaker 2: Well, through it all, he's been emphasizing immigration enforcement. So
27:46
Speaker 2: he has ramped up immigration enforcement in the Central District
27:51
Speaker 2: of California in a way that our sources told us
27:55
Speaker 2: not even his predecessor under the prior Trump administration did.
28:00
Speaker 2: He's also been shifting away, reportedly from these corporate crime investigations.
28:07
Speaker 2: And as we got into June and as Los Angeles
28:11
Speaker 2: became this national story around immigration enforcement, these protest cases
28:17
Speaker 2: started emerging, and not only did he, according to our sources,
28:22
Speaker 2: push to make sure that they were prosecuted, he was
28:26
Speaker 2: also posting the faces of people who had been arrested
28:30
Speaker 2: in connection with the protest And a lot of the
28:33
Speaker 2: tension that we reported on within the office is stemming
28:37
Speaker 2: from his handling of these protest cases that are very
28:40
Speaker 2: salient to Trump's space.
28:43
Speaker 1: Asli was a prosecutor before, it's not that he doesn't
28:48
Speaker 1: have experience here.
28:49
Speaker 2: He worked in Los Angeles and riverside for the Central
28:56
Speaker 2: District of California, and he left that job to take
29:00
Speaker 2: a stint as a lawmaker in Sacramento. A state lawmaker,
29:05
Speaker 2: he was known for getting into some yelling fights on
29:10
Speaker 2: the floor. Up there.
29:12
Speaker 1: There was a case against an LA resident for distributing
29:17
Speaker 1: face shields to protesters. Explain how he went up to
29:21
Speaker 1: main Justice to get that through.
29:25
Speaker 2: So this is a resident named Alejandro Oriana, and he
29:31
Speaker 2: was charged for distributing face shields to protesters. But sources
29:36
Speaker 2: told Ben that A. Sailey had to go to the
29:39
Speaker 2: top of the Justice Department to salvage the case because
29:43
Speaker 2: layer after layer of the DOJ recommended against the charge.
29:48
Speaker 2: The charge required consultation with the National Security Division in
29:52
Speaker 2: Washington before it could go to a grand jury. The
29:54
Speaker 2: head of NSC recommended against bringing the charge to a
29:58
Speaker 2: grand jury. Then he went to the Deputy Attorney General's
30:02
Speaker 2: office and the dad's office did give him the green light.
30:06
Speaker 1: Your story reveals several instances where he refused to follow recommendations,
30:13
Speaker 1: including in a case involving a Walmart employee.
30:17
Speaker 2: Right he went over the office supervisor's advice, according to
30:21
Speaker 2: our sources, not to charge this twenty year old Walmart
30:25
Speaker 2: employee for assaulting and immigration officer. At that point, video
30:30
Speaker 2: of the arrest was going viral suggesting that the Border
30:34
Speaker 2: Patrol agents were the ones using physical force against the
30:38
Speaker 2: Walmart employee, who was a US citizen, and an FBI
30:43
Speaker 2: agent said there was not enough evidence, according to our sources,
30:48
Speaker 2: and declined to sign a complaint. Within a day, another
30:52
Speaker 2: agent signed off on a different charge, but the social
30:55
Speaker 2: media post from a saie asserting the employee would be
30:59
Speaker 2: charged with punching an agent is still on x.
31:02
Speaker 1: Also, I remember this case where there was an excessive force,
31:07
Speaker 1: a felony excessive force conviction against an LA County Sheriff's
31:13
Speaker 1: Department deputy, and he reached a plea deal with him
31:18
Speaker 1: after he'd already been convicted.
31:20
Speaker 2: Right, So that case is one I've been in the
31:23
Speaker 2: courtroom for a few times. This is deputy named Discovered Kirk,
31:30
Speaker 2: and he was convicted by a jury of felony excessive
31:33
Speaker 2: force for slamming a black woman to the ground in
31:38
Speaker 2: a parking lot. And at first the office tried to
31:43
Speaker 2: push his sentencing to August, which is after his interim
31:48
Speaker 2: period would expire, and the judge declined to do so
31:52
Speaker 2: and after that, the prosecutors asked the federal judge to
31:56
Speaker 2: approve this post trial plea agreement that they were aiming
32:02
Speaker 2: to use to reduce his conviction from a felony to
32:05
Speaker 2: a misdemeanor and release him on probation. Ultimately, Kirk was
32:11
Speaker 2: sentenced to four months and Kirk is appealing, but that
32:18
Speaker 2: caused significant drama within the Los Angeles legal community. This
32:22
Speaker 2: post child plea agreement is something that we don't see
32:24
Speaker 2: very often at all.
32:26
Speaker 1: President Trump has never formally nominated him to the position.
32:32
Speaker 2: Correct, he will be named acting tomorrow, is what the
32:38
Speaker 2: DJ has confirmed with US. Tomorrow being Wednesday, So.
32:41
Speaker 1: That'll give him another two hundred and ten days in office.
32:45
Speaker 1: And you reported that he's never acknowledged the term interim
32:49
Speaker 1: in his title.
32:50
Speaker 2: Correct. A couple of our sources said that he will
32:55
Speaker 2: insist that he should be referred to as the US
32:58
Speaker 2: Attorney no interim.
33:00
Speaker 1: Well, now he'll receive a new acting appointment. And this
33:04
Speaker 1: follows the same playbook the administration used Tuesday for Nevada's
33:08
Speaker 1: top prosecutor. The maneuver under the vacancy's reformac to keep
33:12
Speaker 1: the appointee for two hundred and ten days. It's the
33:15
Speaker 1: fourth time this month that the Executive branch has moved
33:18
Speaker 1: to retain a controversial chief prosecutor without the judiciary's approval.
33:24
Speaker 1: Thanks so much, Maya. That's Bloomberg Law LA Courts correspondent
33:28
Speaker 1: Maya Spodo, and that's it for this edition of The
33:31
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
33:34
Speaker 1: legal news on our Bloomberg Law Podcast. You can find
33:37
Speaker 1: them on Apple Podcasts, Spotify, and at www dot bloomberg
33:42
Speaker 1: dot com, slash podcast Slash Law, and remember to tune
33:45
Speaker 1: into The Bloomberg Law Show every weeknight at ten pm
33:49
Speaker 1: Wall Street Time. I'm June Grosso and you're listening to
33:52
Speaker 1: Bloomberg