Habba booted by Senate and judges who did their damn jobs
See! It is possible.
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On Monday, Alina Habba finally tapped out.
In a screed posted to X, she took swipes at both Congress and the judiciary. Habba, who had never prosecuted a case in her life when she was named interim US attorney for the District of New Jersey and who told far-right shitposter Jack Posobiec that part of her job was to “turn New Jersey red,” flounced off with a lecture about “politics infecting our justice system.”
Attorney General Pam Bondi was similarly intemperate, posting that she was “saddened to accept Alina’s resignation” and excoriating “politicized judges.”
Whether you can take the New Jersey out of the girl is open to debate.
But Habba hasn’t been the US attorney for New Jersey since July. A trial judge and the Third Circuit both ruled that her appointment lapsed in the summer and she’s been LARPing ineffectually ever since.
Angry tweets cannot hide that this is absolutely a surrender by the Justice Department. Trump tried to bully the Senate and the judiciary into accepting unconfirmable hacks as US attorneys, and he failed.
She’s got the blue state blue slip blues
While Habba reserved most of her invective for the judiciary, her complaint about “a flawed blue slip system” came closest to admitting that it was congressional Republicans who actually blocked her from taking office.
Specifically, it was Sen. Chuck Grassley, chair of the Judiciary Committee, who refused to accede to pressure to ditch the 110-year-old “blue slip” rule. (Trump, as you can see in the clip below, is big mad about it.)
The Constitution requires Senate confirmation for principal officers, including trial judges and US attorneys. But the Judiciary Committee will not advance nominees for those positions without buy-in from both home state senators, who are presumed to be best able to evaluate the law enforcement preferences of their own constituents. Habba was never going to get support from Democratic Sens. Cory Booker and Andy Kim, and so her nomination as US attorney for the District of New Jersey was effectively DOA. (This is perhaps why she could barely be bothered to fill out the vetting paperwork.)
This is highly inconvenient for a Republican president hell bent on using the Justice Department to prosecute his political enemies, since those enemies tend to live in blue states like New York, Virginia, Maryland, New Jersey, and California, all of which have two Democratic senators. And so Trump demanded over the summer that Grassley ditch the longstanding rule.
Perhaps assuming that he’d be able to wrestle Grassley into submission, Trump forged ahead anyway, installing his political cronies to lead US attorney’s offices where there was zero chance of getting blue slips returned.
Congress has certainly been supine when it comes to Trump’s theft of their power over the budget, tariffs, and trade agreements. But when it comes to its own rules, like blue slips and the filibuster, the Senate has been uncharacteristically noncompliant.
And so Pam Bondi had to get creative.
The three-hat dance
In July, the attorney general started executing a series of maneuvers to keep Trump’s unconfirmable prosecutors on the job.
Bondi first installed them under 120-day interim appointments (Hat 1); then she appointed them as their own first assistants so that they would automatically be promoted to fill a senior vacancy under the Federal Vacancies Reform Act (Hat 2); and then she simultaneously named them as special attorneys, under the same law that empowered Special Counsels Robert Mueller and Jack Smith (Hat 3).
Here’s a snapshot of the convoluted timeline for one such prosecutor in the District of New Mexico.
The purpose of this rigamarole was to allow Trump’s preferred candidates to continue supervising US attorneys offices without Senate confirmation. But that required the cooperation of the courts, who have been even less amenable to Trump’s bullying than Congress.
By statute, the judges in a district can vote to install a lawyer as US attorney if the position becomes vacant. Often, for the sake of continuity, they vote to keep on the president’s interim nominee after he times out. But judges in New Jersey passed Habba over in favor of her first assistant, a career prosecutor.
“The First Assistant United States Attorney in New Jersey has just been removed,” Bondi rage-tweeted. “This Department of Justice does not tolerate rogue judges — especially when they threaten the President’s core Article II powers.”
The judges in New Jersey had zero obligation to bless Trump’s preferred candidate, but for a while, Trump, Bondi, and Habba tried to brazen it out. Habba held herself out as the acting US attorney, huffily accusing anyone who questioned her legitimacy of siding with criminals.
That became more difficult in August when a judge ruled that Habba’s lawful appointment had expired in July and Bondi couldn’t rely on the FVRA and special counsel statute to evade Senate confirmation. And it became simply untenable when the Third Circuit upheld that ruling on December 1.
Outfoxed and outflanked
In Habba’s tweet, she snarked that “judges stopped conducting trials and entering sentences, leaving violent criminals on the streets.” And she’s right about that — sort of.
The motion to disqualify Habba was brought by criminal defendants who argued that any case supervised by an illegitimate US attorney must be dismissed. The court found that the cases were effectively legitimized by the presence of other, duly appointed prosecutors. So, even as he disqualified Habba, the judge refused to dismiss the criminal cases brought by her office. But this is an undeveloped area of law, so judges in New Jersey were initially reluctant to conduct criminal proceedings that might later be invalidated if the Third Circuit sided with those defendants on appeal.
Since then, the law got a lot more developed when judges in Nevada, California, and Virginia agreed ruled that Bondi’s “three hat” dance was no substitute for Senate confirmation. With the exception of Virginia, where Trump’s insurance lawyer Lindsey Halligan was the only lawyer who presented the Comey and James cases to the grand jury, disqualification of the US attorney did not result in dismissal of the underlying cases she supervised.
The judges did their jobs, interpreting the disputed statutes and creating a body of common law and precedent. In plain English, the chaos that followed Habba’s disqualification won’t happen any more because every court to look at the issue agreed that prosecutions signed off on by line attorneys are kosher, even when the US attorney claiming to supervise them is not. And because there are now so many rulings blocking these illegal appointments, the DOJ can no longer argue that the law is unsettled. Bondi simply got outflanked by the judges.
In public, she’s affected a posture of defiance.
“The Department of Justice will seek further review of this decision, and we are confident it will be reversed,” she said after accepting Habba’s “resignation.”
But so far the DOJ, which routinely requests and receives emergency relief from the Supreme Court, has not asked the six conservative justices to intervene. Nor has it appealed Halligan’s disqualification in Virginia.
Fake it ‘til you … can’t fake it any more
So far, Halligan continues to squat in the US attorney’s office. She’s still signing documents, although not without chaperones from both Virginia and Main Justice in DC.
This has prompted some consternation from judges.
“Frankly, it’s unsatisfying to hear that something that appears to be in direct contravention of Judge Currie’s order is on this pleading,” Judge Michael Nachmanoff scolded last week.
The DOJ has floated various trial balloons justifying Halligan’s continued tenure. In one, Judge Cameron Currie’s disqualification order was only binding in the Comey and James cases. In another, the judge didn’t actually order Halligan to vacate the building, and so it doesn’t really count. These theories are frankly bizarre, which is why the government didn’t make them in court.
Instead, the Justice Department’s X account posted a statement on behalf of Bondi and Blanche accusing judges in EDVA of “engaging in an unconscionable campaign of bias and hostility against US Attorney Lindsey Halligan and her line AUSAs.”
“This Department of Justice has no tolerance for undemocratic judicial activism,” they snorted. “We will continue fighting for public safety in courtrooms across the country, and we will not be deterred by rogue judges who fail to live up to their obligations of impartiality because of their own political views.”
If that was an effort to intimidate the judiciary, it failed.
On Tuesday, Judge Leonie Brinkema asked why Halligan’s name was still appearing on documents and if she intended to resign like Habba.
“That’s the proper position, in my view,” the judge sniffed.
Meanwhile in New Jersey, the DOJ seems to have conceded that the jig — or the three hat dance — is up. The judges in the district forced the administration to back down, and on Monday Bondi appointed three Trump loyalists to run the US Attorney’s Office as division heads, inferior positions which don’t require Senate confirmation. The Senate and the judiciary refused to let the president steal their power, and it worked.
Almost a quarter of Trump’s second term is over, and Congress is finally showing signs of life. Not allowing him to ONE WEIRD TRICK his way around the Constitution proves that the legislative and judicial branches can stop some of the administration’s excesses if they decide to hold firm. We can only hope that they continue to stand up as this napping duck gets lamer and lamer.
That’s it for today
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Thanks for reading.
I almost cried when I read Habba’s statement.🤣🤣🤣
Thank you! Thank you, Liz! It does feel like the tide is turning back towards sanity! The exposure you provide on the corruption of DC is so important. Glad I can be a paid supporter of Public Notice❤️