The Zombie U.S. Attorney Problem
While the Trump administration has repeatedly lost in court for invalidly installing interim U.S. attorneys, it has not yet backed down and relinquished the appointment power to federal judges.
A quick backgrounder on the law: Recent court decisions have reaffirmed that until the Senate confirms a U.S. attorney, the attorney general can only appoint an interim U.S. attorney for a term of 120 days. After that initial term expires, the interim U.S. attorney must be appointed by the federal judges in the district, under one statutory scheme.
In two of the high-profile cases where Bondi tried to sidestep the judges and lost, she continues to try to come up with workarounds to control the appointments herself, rather than ceding the power to the district judges.
In New Jersey — even after the Third Circuit Court of Appeals affirmed in the Giraud case that Alina Habba was not validly appointed as U.S. attorney and she resigned this week — Bondi took the unusual step of appointing a troika of attorneys on Monday to run the U.S. attorney’s office.
In a Dec. 8 memo approved by the Office of Legal Counsel, Henry C. Whitaker, who serves as counselor to the attorney general, wrote that the appointment of three lawyers who hold titles as special attorney, special counsel, and executive assistant U.S. attorney would be in compliance with the Constitution’s Appointment Clause: “This proposed order would divide the responsibilities of the United States Attorney among three officials so that the district may have continuity of leadership while the Department considers next steps in the Giraud litigation.”
On one level, you can understand why the administration would not want to cede appointment power to judges before it has decided whether to appeal the Third Circuit’s decision on Habba. Once it gives up that power and an interim U.S. attorney is appointed by the judges, the administration can’t get it back. But when you step back a bit, the pattern of refusing to yield to the statutory scheme that gives federal judges a role in naming interims after 120 days becomes more clear.
In the Eastern District of Virginia, Lindsey Halligan’s name continues to appear on government legal filings as interim U.S. attorney despite a court ruling that she was invalidly appointed. Federal judges in the district have called her out in recent days, and one judge went as far as saying Halligan should resign like Habba did. “That’s the proper position, in my view,” U.S. District Judge Leonie M. Brinkema said during a hearing Tuesday.
Another federal judge outside Halligan’s district drew attention to Halligan’s zombie status in an order yesterday. In a case related to the Trump administration’s dismissed prosecution of former FBI Director James Comey, U.S. District Judge Colleen Kollar-Kotelly of D.C. noted that Halligan’s improperly filed notice of appearance didn’t include her name but that of Deputy Attorney General Todd Blanche:
Kollar-Kotelly also expressed concern about the implications of the misfiled notices of appearance, noting they function “[t]o ensure that counsel who are accountable for the Government’s representations and legal positions in this matter are accurately identified in the official record of this case.” She gave the DOJ attorneys until this morning to file properly their notices of appearance in the case. In response, Halligan filed a new entry of appearance.
Bondi is using similar-in-spirit workarounds in two other districts, where the circumstances are different and probably legal under a different statutory scheme that allows first assistant U.S. attorneys to fill vacancies for 210 days (plus extensions under certain conditions). In Nevada, Bondi made Sigal Chattah the first assistant U.S. attorney and a special attorney after she was disqualified. In the Central District of California, Bondi made Bill Essayli the first assistant U.S. attorney after he too overstayed his term as interim.
So far, there’s no sign the judges in New Jersey or the Eastern District of Virginia are moving to confront Bondi’s defiance directly.
BREAKING: Judge Orders Abrego Garcia Released From ICE Custody
U.S. District Judge Paula Xinis of Maryland granted Kilmar Abrego Garcia’s petition for a writ of habeas corpus and ordered his immediate release from ICE custody.
All Part of His SCOTUS Audition?
An ethics complaint has been filed against appeals court Judge Emil Bove for his appearance at President Trump’s Tuesday rally in Pennsylvania.
The Corruption: Pardon Edition
- WSJ: A Visual Breakdown of Trump’s Pardon Spree
- Bloomberg: Almost 400 people pardoned or granted clemency by President Donald Trump in connection with the Jan. 6 attack are now seeking millions of dollars in damages from the federal government. They are represented by Attorney Mark McCloskey of St. Louis, whom you might remember as this guy:
Quote of the Day
U.S. District Judge Charles Breyer, in a ruling that blocked President Trump’s federalization of the California National Guard as unlawful:
The Founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one. Six months after they first federalized the California National Guard, Defendants still retain control of approximately 300 Guardsmen, despite no evidence that execution of federal law is impeded in any way—let alone significantly. What’s more, Defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops. In response to Plaintiffs’ motion to enjoin this conduct, Defendants take the position that, after a valid initial federalization, all subsequent re-federalizations are completely, and forever, unreviewable by the courts. Defendants’ position is contrary to law.
Venezuela Watch
President Trump trumpeted the U.S. seizure of a sanctioned oil tanker off the coast of Venezuela. While the move is provocative in the context of Trump’s saber-rattling toward the Maduro regime, it doesn’t appear to be directly connected to the anti-drug-trafficking pretext the Trump administration has used for its aggressive recent actions in the region. The tanker is reportedly part of a global shadow fleet that transports sanctioned oil.
This Is What Our Friends Are Saying
The Danish Defense Intelligence Service released a new report that warns the United States can no longer be counted on not to use military force against its own allies.
“The United States uses economic power, including threats of high tariffs, to enforce its will, and no longer rules out the use of military force, even against allies,” the report said.
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