Latest / Bloomberg Law / Weekend Law: Attack on Judges, Chaos in NJ Courts & Ghislaine Maxwell

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Weekend Law: Attack on Judges, Chaos in NJ Courts & Ghislaine Maxwell · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: A lot of people are asking me about Bardons. Obviously,
0:12
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
0:39
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
1:21
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
1:30
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
1:38
Speaker 2: Florida state charges, and in exchange for that, the Department
1:42
Speaker 2: of Justice agreed not to bring any federal charges against him.
1:47
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
2:27
Speaker 2: had been involved in hundreds of plea agreements, and the
2:30
Speaker 2: standard language in all these plea agreements says that that
2:34
Speaker 2: agreement is limited to the district. That is prosecuting you
2:38
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
3:00
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
3:33
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
3:47
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
5:44
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
9:53
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
10:02
Speaker 3: grant of formal immunity the committee's questions in advance, and
10:07
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,
15:01
Speaker 4: it's a private meeting. By this reasoning someone should bring
15:04
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
15:13
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
15:29
Speaker 4: that he shared with other justices.
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Speaker 3: In the complaint, the Justice Department also says that Judge
15:34
Speaker 3: Boseburg had no basis for saying that because the Trump
15:37
Speaker 3: administration has always complied with court orders, but the administration
15:42
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
16:07
Speaker 4: his court had found the administration to be out of
16:11
Speaker 4: compliance with a number of court orders. By administration officials,
16:16
Speaker 4: certainly including the Vice president, arguably including the president, had
16:20
Speaker 4: mused about whether they would honor court orders on various topics,
16:26
Speaker 4: even Supreme Court orders, certainly orders of district courts, and
16:31
Speaker 4: the question of how to deal with the administration violating
16:35
Speaker 4: court orders had already been up and down to the
16:38
Speaker 4: Supreme Court by that point. Obviously it was something they
16:42
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
16:50
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
16:57
Speaker 4: that they feel inundated with bentonl cases, where they feel
17:01
Speaker 4: inundated with crystal meth cases. This is a place where
17:05
Speaker 4: judges talk about the challenges of maintaining the judiciary. He
17:10
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
17:29
Speaker 4: circulated to judges. President Trump has made a point of
17:33
Speaker 4: appointing members of the Federalist Society to the Judiciary. So
17:37
Speaker 4: many Federalist Society members received this memo, and one of
17:41
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
17:54
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,
18:05
Speaker 4: but they don't give us any context to suggest that
18:08
Speaker 4: they weren't. And again, Judge Bosberg's role there was to
18:11
Speaker 4: bring to the judicial conference concerns by judges on his court,
18:17
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
18:27
Speaker 4: thing to discuss. He doesn't indicate what the point of
18:31
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
18:40
Speaker 4: on the merits of the case. This is not a
18:43
Speaker 4: merits issue. This is an issue about what does the
18:46
Speaker 4: court do when it has decided the merits and one
18:49
Speaker 4: of the parties doesn't comply.
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Speaker 3: The Justice Department also complains about his handling of the
18:56
Speaker 3: case involving the alleged Venezuelan gang members, saying he rushed
19:00
Speaker 3: the government through complex litigation, sometimes giving the Trump administration
19:05
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
19:12
Speaker 4: have agreed to suspend flights until this matter was litigated,
19:18
Speaker 4: and the parties could have submitted their papers in due time.
19:21
Speaker 4: The administration was in physical control of all of these people.
19:26
Speaker 4: It had no need to send them to Alvalvadore. It
19:29
Speaker 4: chose to do it in a great hurry, and that
19:31
Speaker 4: led to a quick response from Judge Boseburg. Many judges
19:36
Speaker 4: would not have given the administration any operatity to respond
19:39
Speaker 4: at all when enjoining a crisis that was entirely of
19:43
Speaker 4: that party's making. Judge Boseburg bent over backwards to be
19:47
Speaker 4: considerate of the administration and to accommodate the schedule, which
19:52
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,
20:01
Speaker 3: does a litigan file a misconduct complaint or wait for
20:05
Speaker 3: the appeal.
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Speaker 4: If what the judge does is sufficiently egregious, you can
20:10
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
20:17
Speaker 4: the requirements of an improper act. It wasn't public, it
20:22
Speaker 4: wasn't on the merits, and wasn't prejudicial. So the normal
20:27
Speaker 4: procedure would be either to appeal or in some instances,
20:31
Speaker 4: to move for the judge to be recused. But the
20:33
Speaker 4: standard even for recusal and for appeal is much much
20:38
Speaker 4: higher than this, and the standard for judicial misconduct is
20:41
Speaker 4: higher still.
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Speaker 3: You said, doesn't pass the left test? What do you
20:45
Speaker 3: expect to happen here?
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Speaker 4: In a normal world, the Chief Judge of the DC
20:51
Speaker 4: Circuit would dismiss this outright, because this comes from the
20:55
Speaker 4: Justice Department and from an administration that is been exceedingly
21:01
Speaker 4: vindictive and is cross lines that none of its predecessors
21:05
Speaker 4: have in criticizing sitting judges. The chief Judge may refer
21:10
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
21:15
Speaker 3: a string of confrontations of the Trump administration with the
21:19
Speaker 3: federal courts. They filed a misconduct complaint in February against
21:24
Speaker 3: another DC federal judge, Anna Reyes, accusing her of hostile
21:28
Speaker 3: and egregious misconduct for her sharp questioning of government lawyers
21:32
Speaker 3: in the case on the Pentagon's attempts to ban transgender
21:35
Speaker 3: people from military service. And last month they sued every
21:39
Speaker 3: judge in Maryland over a standing order that blocked the
21:42
Speaker 3: immediate deportation of migrants, challenging their removal for two days.
21:47
Speaker 3: Is there a strategy.
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Speaker 4: Here well, certainly, the strategies to intimidate federal judges, the
21:52
Speaker 4: public criticisms of them, which have led reportedly to spikes
21:57
Speaker 4: and death threats, is part of this. The suggestion that
22:01
Speaker 4: they don't have to follow them, the characterization of them
22:04
Speaker 4: as radical leftists. Some of the judges they've called radical
22:07
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
22:14
Speaker 4: the courts, to have people not believe that the courts
22:17
Speaker 4: can determine the law, and to have people do entirely
22:21
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
22:28
Speaker 3: a complaint against a federal judge In the past, under
22:32
Speaker 3: other presidents, have justice departments taken this course.
22:37
Speaker 4: Almost never, and a good example of that is the
22:40
Speaker 4: behavior of Judge Cannon in one of President Trump's criminal cases.
22:46
Speaker 4: A number of her rulings were very strange, sometimes self
22:50
Speaker 4: initiated rulings in favor of mister Trump, and the Justice Department,
22:55
Speaker 4: though it had plenty of grounds, didn't even move to
22:59
Speaker 4: recuse her less file and judicial misconduct complaint. The ordinary
23:03
Speaker 4: views of the Justice Department has a strong interest in
23:06
Speaker 4: public respect for the judiciary and doesn't want to undermine it.
23:09
Speaker 4: This administration obviously feels differently.
23:12
Speaker 3: And tell us a little about Judge Boseberg's reputation.
23:16
Speaker 4: Judge Boseburg's an extremely thorough, extremely smart judge. He basically
23:21
Speaker 4: gives you what you get. If you give him a
23:23
Speaker 4: serious argument, he'll either ruin your favor or give you
23:27
Speaker 4: a careful, anapolitical reason why he won't. If you give
23:30
Speaker 4: him a silly argument, he will say so and not
23:32
Speaker 4: dignify it with a lot of extra words. He's very
23:36
Speaker 4: hard working, very attentive to the law, He's ruled in
23:40
Speaker 4: the Trump administration's favor on a number of matters, including
23:43
Speaker 4: involving the Alien Enemies Act, because he felt the law
23:47
Speaker 4: was in their favor. He's not a partisan.
23:50
Speaker 3: And by the way, the DC Appellate Court has not
23:53
Speaker 3: yet addressed the complaint against Judge Ray As for her
23:57
Speaker 3: sharp questioning of government lawyers, I.
24:00
Speaker 4: Will point out that if the standard was that lawyers
24:03
Speaker 4: shouldn't be sharply questioned, there are only about two judges
24:06
Speaker 4: I ever practiced in front of that I couldn't have
24:08
Speaker 4: filed misconduct complaints against the judge actually drew the most
24:12
Speaker 4: when I was a practice was JOHNS. Bullham, And I
24:14
Speaker 4: don't believe he ever asked me a question that wasn't sharp.
24:17
Speaker 4: I don't think he ever asked me, how are you counselor?
24:19
Speaker 4: I think he starred with his urb questern then never finished.
24:22
Speaker 4: I want a bunch of cases in front of him.
24:24
Speaker 4: But everything, a lot of his questions was sharp.
24:27
Speaker 3: Well, you have to have a tough skin if you're
24:29
Speaker 3: going to be a litigator. Always a pleasure, David. That's
24:32
Speaker 3: Professor David super of Georgetown Law. Coming up next, challenges
24:37
Speaker 3: to Elena Hobba's authority over the US Attorney's office in
24:40
Speaker 3: New Jersey leads to chaos in the federal criminal courts there.
24:44
Speaker 3: I'm June Grosso. When you're listening to Bloomberg, you may
24:48
Speaker 3: be familiar with Alena Habba from her vigorous defense of
24:52
Speaker 3: President Donald Trump in three civil lawsuits in New York
24:56
Speaker 3: which Trump lost, including a defamation suit brought by writer
25:00
Speaker 3: Egene Carroll. This is wrong, but we are in the
25:03
Speaker 3: state of New York. We are in a New York jury, and.
25:05
Speaker 1: That is why we are seeing these witch.
25:07
Speaker 3: Hunts, these hoaxes, as he calls.
25:09
Speaker 2: Them, and this is another one of them. Don't get
25:12
Speaker 2: it twisted.
25:13
Speaker 3: We are seeing a violation of our justice system. I
25:16
Speaker 3: was yelled at, and I've had a judge who's unhinged,
25:20
Speaker 3: slimming a table.
25:21
Speaker 1: Let me be very clear. I don't tolerate that in
25:23
Speaker 1: my life.
25:24
Speaker 2: I'm not going to tolerate it here.
25:25
Speaker 3: Trump appointed Haba, who's never worked as a prosecutor, as
25:30
Speaker 3: interim US Attorney for New Jersey in March, but both
25:34
Speaker 3: the state's Democratic senators opposed her nomination and the state's
25:38
Speaker 3: judges refused to appoint her as the US Attorney when
25:42
Speaker 3: her one hundred and twenty day interim term ran out. Now,
25:45
Speaker 3: the Trump administration's procedural maneuvering to keep her in charge
25:49
Speaker 3: of that office has led to chaos in New Jersey's
25:53
Speaker 3: federal criminal courts, basically paralyzing criminal cases. Judges are pausing
25:58
Speaker 3: proceedings except for bail hearings because of challenges by defendants
26:03
Speaker 3: who argue that Haba doesn't legally hold the job. My
26:07
Speaker 3: guest is Stanford Law professor and Joseph O'Connell, and will
26:11
Speaker 3: you start by explaining the law around interim US attorney appointments?
26:17
Speaker 5: Sure, So, normally each district has a US Attorney who's
26:22
Speaker 5: nominated by the President and confirmed by the Senate. But
26:25
Speaker 5: there are often incredible delays in that process. So Congress
26:29
Speaker 5: has enacted two statutes that provide for temporary service of
26:35
Speaker 5: US attorney's wall the traditional appointments process churns. So the
26:41
Speaker 5: first way to get a temporary US attorney is through
26:45
Speaker 5: twenty eight Usc. Five forty six, and that allows the
26:50
Speaker 5: Attorney General to pick what is called an interim US
26:55
Speaker 5: Attorney and that person can serve for one hundred and
26:58
Speaker 5: twenty days and then at the the expiration of that
27:01
Speaker 5: one twenty day period, the district court in that district
27:05
Speaker 5: may doesn't have to may pick an interim US attorney
27:09
Speaker 5: who can serve until someone is confirmed to the position.
27:14
Speaker 5: There's also another statute that covers more than just US attorneys,
27:18
Speaker 5: so five forty six just covers US attorneys. There's something
27:21
Speaker 5: called the Federal Vacancy's Reform Act of nineteen ninety eight,
27:25
Speaker 5: which is the latest in a long history of vacancies acts.
27:29
Speaker 5: We've had them since the late eighteenth century. And the
27:32
Speaker 5: Vacancy's Act allows acting US attorneys and also acting leaders
27:38
Speaker 5: in a bunch of other positions, and they are There
27:41
Speaker 5: are also time limits. There's no role for the district court.
27:45
Speaker 3: So the one hundred and twenty days was running out
27:48
Speaker 3: and New Jersey federal judges chose Habba's hand picked first assistant,
27:54
Speaker 3: Desiree Grace, to replace her, but within hours the Attorney
27:58
Speaker 3: General fired Grace. Is the ag allowed to fire Grace
28:02
Speaker 3: once the judges have appointed her.
28:05
Speaker 5: No, so Attorney General Bondi could fire her from being
28:08
Speaker 5: first assistant. That's within her powers. But although the Attorney
28:13
Speaker 5: General is supposed to pick the US attorney in the
28:16
Speaker 5: interim capacity. She cannot fire someone who is picked by
28:19
Speaker 5: the court. And why is that because under constitutional law,
28:22
Speaker 5: the Supreme Court has held in multiple cases that the
28:26
Speaker 5: power to remove follows the power to appoint for these
28:30
Speaker 5: inferior offices, which US attorneys are, unless Congress has specified otherwise. Now,
28:35
Speaker 5: under that rule, the Court has appointed, so only the
28:39
Speaker 5: Court can remove. But that runs up against another constitutional
28:43
Speaker 5: law principle about separation of powers. So the Office of
28:46
Speaker 5: Legal Counsel has long held that the president and only
28:49
Speaker 5: the president can fire a court appointed interim US attorney.
28:53
Speaker 5: And we saw this happen in the first Trump administration
28:56
Speaker 5: when President Trump fired Jeff Berman, and there was a
28:59
Speaker 5: bit of a scrif full about it because initially it
29:02
Speaker 5: seemed as if Attorney General Barr was pushing him out,
29:05
Speaker 5: and finally the president got involved and Jeff Berman.
29:08
Speaker 3: Left, So here the president could fire Grace with no problem.
29:12
Speaker 5: That's right, And I think you could say that happened arguably.
29:16
Speaker 5: I mean after Attorney General Bondi's ex post. I mean,
29:19
Speaker 5: we're running government through ex posts, but after Attorney General
29:23
Speaker 5: Pam Bondi's ex post, which doesn't talk about the president's
29:26
Speaker 5: authority at all. Todd Blanche who's the Deputy Attorney General,
29:30
Speaker 5: says that pursue into presidential authority. They're firing Grace as
29:36
Speaker 5: the court appointed US attorney, and I think that's probably enough.
29:39
Speaker 5: I mean, you could argue about the wording. I mean, interestingly,
29:43
Speaker 5: I was fired by President Trump. I'm a part time
29:45
Speaker 5: position on January twenty first, and the email that I
29:49
Speaker 5: received says on behalf of President Donald J. Trump, I
29:53
Speaker 5: was terminated for my position. So maybe you could argue
29:57
Speaker 5: it wasn't truly the president firing. But I think that
29:59
Speaker 5: most would think, at least functionally, the president has fired
30:02
Speaker 5: Grace from the interim position.
30:04
Speaker 3: So the Trump administration then with Drew Hobba's appointment to
30:08
Speaker 3: be the US Attorney for New Jersey, they allowed her
30:11
Speaker 3: to resign as interim US Attorney, then appointed her as
30:14
Speaker 3: first Assistant US Attorney, So that automatically means she's in
30:20
Speaker 3: the role of acting US Attorney for another two hundred
30:24
Speaker 3: and ten days.
30:25
Speaker 5: That's right. So there are these three pools or categories,
30:28
Speaker 5: and the first pool under the Vacancy's Act is the
30:30
Speaker 5: first assistant to the position is the default acting official.
30:34
Speaker 5: There's no further action that has to be taken by
30:37
Speaker 5: the president. So once she's slotted into that first assistant position,
30:41
Speaker 5: she then becomes the acting US Attorney.
30:45
Speaker 3: At the end of her two hundred and ten days.
30:47
Speaker 3: Can the Trump administration reappoint her.
30:50
Speaker 5: No, Well, it's contested under five p. Forty six. The
30:55
Speaker 5: administration and previous administrations have done successive one hundred and
31:00
Speaker 5: twenty day appointments. So in the district of DC, we
31:03
Speaker 5: had ed Martin. Ed Martin was not picked. They then
31:06
Speaker 5: picked a different person for another one hundred and twenty
31:09
Speaker 5: day service. Jimmy piro So, I think, although Congress did
31:14
Speaker 5: not intend it when they put back these time limits
31:16
Speaker 5: in two thousand and seven into section five forty six,
31:19
Speaker 5: I think you could probably do a successive one to
31:21
Speaker 5: twenty day appointment, but under the Vacancies Act, you can't.
31:25
Speaker 5: The language there is clear that you can't just reappoint right,
31:29
Speaker 5: you can't just keep doing new two hundred and ten
31:31
Speaker 5: day acting officials. And there's even a penalty provision in
31:35
Speaker 5: the Vacancies Act. If you violate the time limits, certain
31:39
Speaker 5: actions can be voided by the court. So that would
31:41
Speaker 5: give like a boon to criminal defendants. If she's served
31:44
Speaker 5: past the two hundred ten days. Let me just say
31:46
Speaker 5: about the two hundred ten days and how long she
31:48
Speaker 5: can serve is that if there's a nomination pending, not
31:52
Speaker 5: of her right, because she can't both be the first
31:54
Speaker 5: assistant acting and the nominee. But if there's a nomination
31:57
Speaker 5: pending of someone else, she can continue to serve during
32:00
Speaker 5: the pendency of that nomination, plus another two hundred and
32:03
Speaker 5: ten days if that nomination is returned, and she can
32:06
Speaker 5: do it a second time, right, if there's a second nomination,
32:09
Speaker 5: she can serve through the pendency of that second nominations
32:12
Speaker 5: and a final two hundred and ten days at the end.
32:15
Speaker 3: So that could actually end up being a lot of time,
32:18
Speaker 3: especially with the hold on US Attorney nominees in the
32:22
Speaker 3: Senate since May. And is there anything else that Trump
32:25
Speaker 3: administration can do to nominate her again to be US Attorney.
32:31
Speaker 5: So she can't both be the acting US Attorney and
32:34
Speaker 5: the nominee. But I think we might look to the
32:38
Speaker 5: Mark Esper situation in the first term of President Trump.
32:42
Speaker 5: So Mark Esper had been confirmed to be one of
32:46
Speaker 5: the service secretaries of the Defense Department. There was a
32:48
Speaker 5: whole thing about who is going to be the next
32:50
Speaker 5: Secretary of Defense. He became the acting Secretary of Defense.
32:55
Speaker 5: President Trump decides, actually he wants Espert to become the
32:59
Speaker 5: next secretary, but he can't both be the acting and
33:03
Speaker 5: the nominee for the Secretary of Defense position. So what
33:06
Speaker 5: happened is the White House coordinated with the Senate so
33:09
Speaker 5: that Mark Esper continue to serve as acting. Then they
33:13
Speaker 5: submitted the nomination to the Senate. Mark Esper had to
33:17
Speaker 5: step down being acting. Another acting came into the role
33:21
Speaker 5: for a few days. They had coordinated with the Senate,
33:23
Speaker 5: so the confirmation process took only a few days as
33:27
Speaker 5: a formal matter, from the date of the official submission
33:30
Speaker 5: to the actual confirmation. And so I wonder, I know
33:33
Speaker 5: nothing about the machinations in the White House, but I wonder,
33:37
Speaker 5: if they really want her in and their sufficient support
33:40
Speaker 5: in the Senate, could they coordinate with Senate leaders so
33:44
Speaker 5: that she steps down for a few days when the
33:47
Speaker 5: Senate is ready to vote on a nomination. They then
33:51
Speaker 5: formally submit a nomination again, and there's just a pause
33:56
Speaker 5: of several days of her serving as the acting US Attorney.
34:00
Speaker 3: But there's this century old Senate custom called the blue slip,
34:05
Speaker 3: and both New Jersey Democratic senators are against her nominations,
34:09
Speaker 3: so they won't advance the blue slip right.
34:12
Speaker 5: Clearly, Mark Esper had a lot more support, and not
34:15
Speaker 5: just among Republicans.
34:17
Speaker 3: As far as the standstill in federal criminal cases in
34:21
Speaker 3: New Jersey, the first defendant who's fighting his prosecution on
34:25
Speaker 3: the grounds that Haba is no longer an authorized US
34:30
Speaker 3: attorney was to be tried on August fourth on drug
34:34
Speaker 3: trafficking and firearms related charges, and the chief Judge of
34:38
Speaker 3: the Third Circuit has reassigned the case to a judge
34:41
Speaker 3: in Pennsylvania. Does that indicate that the Third Circuit's chief
34:45
Speaker 3: judge thinks there's a problem here too, Unlike.
34:49
Speaker 6: When litigant speak a stay or Lamaran junction or ro
34:55
Speaker 6: and the court has to assess the likelihood of the merit.
34:59
Speaker 6: I don't think that's quite this thing here. The way
35:01
Speaker 6: I'm reading this is that this is not a frivolous argument,
35:05
Speaker 6: and they want to figure it out before they have
35:09
Speaker 6: any issues with sort of conflict or perceptions of bias,
35:13
Speaker 6: because after all, it was the District Court of New
35:15
Speaker 6: Jersey who chose ms grace. I'm not reading into that
35:19
Speaker 6: action that they think that this litigation is going to succeed,
35:25
Speaker 6: just that that there are arguable claims, and even if
35:29
Speaker 6: it's not going to succeed, right, I actually think it's
35:32
Speaker 6: an uphill battle. I'm not saying it won't succeed. I
35:35
Speaker 6: just think it's an uphill battle against the government on
35:38
Speaker 6: these arguments. All of this is creating chaos in New Jersey.
35:42
Speaker 6: I mean right now, it's essentially frozen, it's going to
35:46
Speaker 6: slow step down, and it's going to change workload. If
35:49
Speaker 6: all of that were in New Jersey then has to
35:52
Speaker 6: be heard by district court judges in other districts. It's
35:56
Speaker 6: just a mess.
35:57
Speaker 3: The administration is using a similar playbook for US attorney's
36:01
Speaker 3: offices in Los Angeles, Las Vegas and earlier this month
36:05
Speaker 3: in Albody, New York. What's the downside to this maneuvering.
36:10
Speaker 6: I do think that these moves by the Trump administrations
36:14
Speaker 6: are legal, even if there are possible arguments on the
36:17
Speaker 6: other side. But the chaotic way it's being carried out
36:22
Speaker 6: is shining public attention to the administration's choices, to these
36:28
Speaker 6: temporary picks who normally don't get much attention at all.
36:32
Speaker 6: So even if they're upheld as a legal matter. There's
36:35
Speaker 6: now so much more oversight, and they're going to be
36:39
Speaker 6: consequences for the Trump administration later on.
36:43
Speaker 3: And I have to say, this is such a confusing
36:47
Speaker 3: legal area.
36:48
Speaker 5: There's a grave story. So in twenty seventeen, the Supreme
36:52
Speaker 5: Court heard a case about the Federal Vacancy's Reform Act
36:55
Speaker 5: and it was actually about who could both be the
36:56
Speaker 5: acting and the nominee, and an oral argument, Justice Kagan
37:00
Speaker 5: asked the lawyer, why don't you just go out to
37:03
Speaker 5: the public and say the Vacancies Act has been violated?
37:07
Speaker 5: And the lawyer looks at her and says, because then
37:09
Speaker 5: I would have to explain the Vacancies Act. And the
37:12
Speaker 5: courtroom burst into laughter. And there's something to that. It's
37:15
Speaker 5: an incredibly complex statue.
37:18
Speaker 3: But you certainly know it's ins and outs. Thanks so much,
37:21
Speaker 3: And that's Stanford Law professor and Joseph O'Connell, and that's
37:25
Speaker 3: it for this edition of the Bloomberg Law Show. Remember
37:28
Speaker 3: you can always get the latest legal news on our
37:30
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37:33
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Speaker 3: every weeknight at ten pm Wall Street Time. I'm June
37:46
Speaker 3: Grosso and you're listening to Bloomberg