Andrew Egger (1:59)

Hey, guys, it's Andrew Egger with the Bulwark. Donald Trump has been trying a bunch of different kind of novel, wacky techniques and procedures to get the personnel that he wants prosecuting the cases that he wants to see prosecuted at a bunch of different federal offices around the country. He's been running into a lot of different trouble with, with those, with these appointments, particularly in the last weeks. Just a couple weeks ago, we saw Lindsey Halligan in the Eastern District of Virginia get thrown out with the judge saying that her appointment to that post was on an interim basis, was not lawful. We now have new news just today up in New Jersey, where another one of Donald Trump's pretty loyalist appointments, Alina Haba, who he tried to get installed there on an interim basis and then keep around past the terms of her tenure. An appeals court ruled just today in agreement with what a lower court had said before, that her appointment, her continuing appointment there is not lawful. So bumping into a lot of trouble here. Here to talk over all of this with me is University of Michigan law Professor Leah Lipman. Leah, thanks for coming on to talk about this today.

Leah Lipman (3:13)

Thanks for having me.

Andrew Egger (3:14)

I guess it would not really be accurate to describe this as a surprise. We were sort of expecting that this is the way that this appellate court would rule on the Alina Habba case. They seem like they have been kind of out over their skis on this one for a while. But. But what, what, what struck you as, as interesting just off the top in, in what the appeals court had to say today?

Leah Lipman (3:34)

Yeah. So one is just kind of a why are we even here? And a second was the substance of the opinion. So on the why are we even here? I think it's important to step back and just acknowledge, you know, the reason why the president is trying all of these kind of squirrely methods of appointing people is he wants people to exercise power that no legitimate federal official would like. There's a reason why people who are confirmed by the Senate or career civil servants in these prosecutors offices are unwilling to bring the charges that Alina Haba has or that Lindsey Halligan has. And like, that's why we're here. I think it's just like an important background note to keep in mind. And then second is this opinion is highly technical and really in the weeds, and it uses a method of interpretation, textualism that I think is designed to cater to or appeal to the Republican appointees on the Supreme Court, because I think the administration is likely to try to challenge this ruling, potentially the Halligan one as well, in that court where they've had more success than they have in the lower federal courts. But here, this Third Circuit opinion as well as frankly, the opinion in the Halligan case are really written in a register that adopts the Republican appointees like preferred method of interpretation, cites many of their decisions, you know, that they wrote as justices or that they wrote when they were serving in the Department of Justice. So it's an opinion that knows its audience.

Andrew Egger (5:06)

Yeah, yeah. So just to back up a little bit about how, how we got to this point, Alina Haba, Trump wants her to be the U.S. attorney for New Jersey. Obviously that is a Senate confirmed position. She has run into some trouble because neither of the Democratic senators from New Jersey want to confirm her to that post. So there is, you know, a big open question as to whether she would be able to kind of according to the normal norms of the, of the Sen. That would kind of be a non starter. So what Trump initially tried to do was first of all, he appointed her in sort of an interim way, and correct me if I'm getting any of these things technically incorrect in an interim way with basically 120 day clock. And then when that clock ran out, it was supposed to redound to a different group to basically the judges in that district themselves to either keep her on or to pick somebody else. And they opted to pick somebody else for pretty obvious reasons because they like all of us, sort of judged Alina Habba to be basically a political hitman in that role as acting U.S. attorney there already a few months ago there was gonna be a problem here because the Justice Department tried very hard. And it's weird because this was all sort of like pre. Lindsey Halligan. You mentioned her a bit ago. This is kind of like the maiden voyage of this strategy or whatever. The Justice Department tried to move heaven and earth, right, to keep her on. They fired from the office entirely who those judges had opted to make the new acting U.S. attorney there and then tried to kind of shoehorn Haba back in. That all fell apart very quickly. Right. I mean, it's like again, this is just a confirmation at the appellate level of this lower court's decision. So what's going on right now, like in that U.S. attorney's office in New Jersey? I mean, I'm sure things are just sort of insane at just sort of a baseline. But like, what, what, what is like sort of normal procedure? Look like when, when there's no clear sense of who is going to come out on top as far as who's running the place is concerned.

Leah Lipman (7:13)

I mean, there is no normal procedure. And I think this is why, you know, it is kind of a fool's errand for courts to be applying, you know, the so called presumption of regularity to things that the Trump administration is doing when they have literal offices, you know, U.S. attorneys, offices that are in charge of literally prosecuting people, and you don't running those offices like you do literally not know who's in charge, who has the legal authority to actually make these decisions. So what actually is going on? I mean, on some level, who knows? And you know, at least in these cases, there are multiple people from the U.S. attorney's office on different criminal law documents from indictments or briefs. And so what that means is, you know, Alina Haba might be disqualified from participating in these cases, but at least in those cases where other people who are part of that attorney's office are willing to sign the legal document or, you know, help the criminal case forward, those cases aren't going to disappear entirely. Unlike a case where only Alina Haba was willing to, you know, seek an indictment, or only Aliyah Nahaba was willing to file a brief. So on some level, like the chaos here is maybe a little bit less than it is in the Eastern District of Virginia, you know, where Lindsey Halligan is doing some things all on her own and she wasn't lawfully appointed. At least here in, in this particular case, you are dealing with an indictment where other people from this U.S. attorney's office appeared. And because they have legal authority, you know, to exercise the powers of the U.S. attorney Office, it doesn't kind of nullify absolutely everything Alina Habba has her name on.

Andrew Egger (8:55)

Yeah, let's let me drill down a little bit on, on that because obviously the, the, the even more sort of newsy and remarkable, you know, kind of legal spotlight has been on, as you say, the Eastern District of Virginia in recent weeks with those indictments against Letitia James and against James Comey, which were just thrown out for the exact reason that you described, because Lindsey halligan, the interim U.S. attorney, or so called interim U.S. attorney there, so appointed by Donald Trump, had been the only signatory to those indictments and her appointment was thrown out again by a judge. Can you talk me through, does this news that we have today, this appellate ruling about, about Haba, does this have an impact on, on how the legal stuff is likely to play out going forward for Halligan? Are there, are they similar, are they different? What's, what's going on there?

Leah Lipman (9:47)

They are formally different in that the Attorney General invoked different sources of authority, so different statutes to try to appoint Haba as like a special attorney, you know, then she invoked when she was appointing Halligan a special attorney. And so, you know, it doesn't completely resolve whether, you know, the alternative methods that the attorn general invoke to try to give these people authority would be permissible in Halligan's case. However, the reasoning in this opinion quite clearly suggests that what AG Bondi did with Halligan is also illegitimate, because the gist of the court's reasoning is basically that the methods that the AG and the President used were really efforts to evade the various statutory limitations on who they can appoint to these positions, specifically U.S. attorneys. And that's also what Bondi and the President were trying to do when they attempted to ratify Halligan's appointment and name her a special attorney rather than an interim U.S. attorney. They were trying to get around the various statutes that Congress wrote that limited the President's ability to make people U.S. attorneys, acting U.S. attorneys or interim U.S. attorneys after the Senate has effectively rejected their nomination and the courts of that district did as well.

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Andrew Egger (12:34)

It has seemed to me, and again, I'm very much just a layman here, but just in following along with these cases, in reporting on these cases, I mean, I mean, at these lower court levels, some of these things have been pretty open and shut. Right. I mean, these are pretty transparent attempts to short circuit these statutes to basically take back the power from say, a district court or sorry, an assortment of district judges who have, according to these various statutes, the ability, once that 120 day clock has run out to then it redounds to them to pick who's going to be the acting attorney going forward until the Senate manages to, to confirm somebody. If this does end up going to the Supreme Court, and it does, you know, there's every indication that the White House wants to push it all the way there. You could see a world, at least it seems to me, in which, in which they are assessing sort of a different thing. They're not assessing. Like, is the White House trying to get around these laws? Well, yes, obviously they might be assessing are these laws constitutional in the first place? Right. And that is one, one area in which we have seen the Supreme Court give this President quite a bit of latitude in terms of, you know, just, just asserting broader and broader executive powers. And you could see, you know, the White House making the argument, look, it shouldn't be up to these judges to pick my U.S. attorneys. It should be up to me to pick my U.S. attorneys. So you mentioned that this particular opinion today was written sort of in a hopefully Supreme Court like pleasing way. But, but not to make you get out your crystal ball or anything, but how do you anticipate this particular Supreme Court sort of waiting through some of these arguments if it does, in fact get up to that level?

Leah Lipman (14:08)

Sure. So it's a little bit difficult to game this out in part because I think the only justice that has really written anything that tips their hand even in the slightest, is Justice Thomas. And Justice Thomas has suggested that maybe, you know, laws that restrict, you know, who the President can appoint to these positions or restrict the President's authority in these respects might be unconstitutional. And so he's someone, you know, that we have some indication about where they might lean, but we, we don't have a lot of indication about where the other Justices might be. And you're right that on some level these statutes and the limitations they place on the Attorney General and the President's ability to appoint people as prosecutors and to allow courts to select, you know, who actually exercises executive authority, they do seem to bump up against this unitary executive theory that the Supreme Court has really fixated on. And under that theory, the President exercises all of the executive power and therefore has to have near plenary authority over individuals within the executive branch. The problem, I think, with applying that theory here is these individuals, we're just talking about interim U.S. attorneys. So they're individuals who are just supposed to be exercising this authority for a limited time period. And so as far as, you know, a limitation on the president's authority, they shouldn't be so significant as to implicate, you know, even the Court's capacious understanding of the Unitarian executive theory. And also, there's just a long history of these statutes actually limiting, you know, who can serve in these positions. And the Supreme Court has applied this statute. You know, this Third Circuit opinion cites, you know, an opinion that I believe was written by Justice Gorsuch and National Labor Relations Board versus Southwest General. And in that case, you don't have Justice Gorsuch, you know, indicating constitutional problems with a statute that where Congress selects, you know, who is going to succeed to these offices. And so in that respect, you know, I would hope that there aren't five justices who all of a sudden want to go whole hog on the idea that Congress can place no limitations whatsoever on anyone assuming any office within the executive branch. But we know at least one justice seems to be somewhat open to the idea.

Andrew Egger (16:36)

I mean, it really does seem like the White House has in some respects, painted itself into a corner here where you could imagine a world where they went about this a little bit differently. They tried to rustle up some more lawyers, maybe in the mold of Bill Barr, like the kinds of people who tended to come through for Trump when he really needed them to last term, with a few famous exceptions like when he tried to steal the presidential election. But guys who are sort of sympathetic to his project, but who are not these sort of like utter hacks, right? I mean, just sort of these out and out sort of loyalists and attack dogs and these sorts of things. Because, you know, now that he has gone this route, now that he has gone so far to try to make the office in New Jersey run through Alina Haba or tried to make the office in the Eastern District of Virginia run through Lindsey Halligan, I mean, he's kind of like burned his boats when it comes to, you know, getting anybody to getting the Senate to help him get anybody through, getting, getting, you know, these, certainly these panels of judges to help anybody through. So there really is a lot riding on this for Donald Trump as far as getting sort of his, like, criminal justice retribution project even off the starting blocks here.

Leah Lipman (17:47)

I mean, it's True. But this is also so much a self inflicted wound. I mean, look at the people that he was able to get the Senate to confirm Pete Hegseth, Emil Beauvais to a lifetime tenured position RFK. I mean, my goodness. Right. If you can get 50 votes and the vice president to off on those appointments, you can probably get all kinds of weirdos right into the U.S. attorney's office. You just picked again, Lindsey Halligan, a former insurance lawyer with zero prosecutorial experience. I mean, come on. And Alina Haba, you know, who was a TV personality, not a lawyer really. And so, you know, it's really a self inflicted wound on some level. You know, also partially in bondies, you know, failure to kind of anticipate how some of these challenges would play out and a failure to kind of like cover her tracks in other respects by invoking other sources of authority to try to make some of these appointments.

Andrew Egger (18:45)

Yeah. Is the, is the next stop for this stuff the Supreme Court? I mean, is that, is that basically the next thing we ought to be looking out for? Are there more sort of intermediary stuff maybe for the Halligan case that will be still coming through? What's the kind of timetable that we should have our eye on for this stuff?

Leah Lipman (18:59)

Yeah. So in the Haba case, the next stop is the Supreme Court. And you know, the administration has, you know, 90 days to kind of make a decision about whether they want to go up to the Supreme Court. It's possible they will try to prompt the issue. Right. Even further or more quickly by seeking a stay on the shadow docket. The Halligan case formally has to go to the 4th Circuit before it goes up to the Supreme Court. But again, that court could act quite quickly on an emergency request for a stay. And so these cases could get up to the Supreme Court in short order.

Andrew Egger (19:32)

All right. Well, we will keep watching all of it. I'm sure we'll be right back here for more developments as they trickle out, as they pour out, as they gush out, whatever is going to happen with these developments going forward. Leah Littman, thank you for coming on to talk through some of this stuff with me. Thanks to you all out there for watching, for listening along in your cars, at your computers, on your tv, in your kitchen, however you do it. We appreciate you enjoying our content. Hope you head over to thepoolwork.com to read the stuff we write, subscribe to the channel, subscribe everywhere, buy our merch on our website, you know, do it all. Why not? We'll see you all next time.

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