July 29, 2025 • 33 mins
Anne Joseph O’Connell, a professor at Stanford Law School, discusses the controversy over Alina Habba, Trump’s personal lawyer picked to lead the US Attorney’s Office in New Jersey. Maia Spoto, Bloomberg Law Los Angeles Court’s Correspondent, discusses the mass exodus from the LA US Attorney’s office. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
You may be familiar with Elena Haba from her vigorous
defense of President Donald Trump in three civil lawsuits in
New York which Trump lost, including a defamation suit brought
by writer Egene Carroll.
Speaker 2 (00:23):
This is wrong, but we are in the state of
New York.
Speaker 1 (00:25):
We are in a New York Jerry, and that is
why we are seeing these witch hunts, these hoaxes, as
he calls them, and this is another one of them.
Speaker 2 (00:32):
Be brought in New York.
Speaker 1 (00:35):
I was yelled at, and I've had a judge who
is unhinged slamming a table.
Speaker 2 (00:40):
Let me be very clear.
Speaker 3 (00:41):
I don't tolerate that in my life.
Speaker 2 (00:43):
I'm not going to tolerate it here.
Speaker 1 (00:45):
What we aren't witnessing today is the blatant and unapologetic
weaponization of the criminal justice system. Trump appointed Haba, who's
never worked as a prosecutor, as acting US Attorney for
in March, but both the state's Democratic senators opposed her nomination,
(01:05):
and she became the second Trump US attorney nominee to
fail to receive Senate confirmation. When Habba's one hundred twenty
day interim term expired. Federal judges in the state chose
her top assistant, Desiree Grace, to succeed her, but hours later,
Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi
(01:28):
then named her to be the chief Deputy in the
U s Attorney's Office, meaning she'll automatically inherit the title
of acting US Attorney for New Jersey. The procedural maneuvering
opens the door to legal challenges from defendants, and this week,
a defendant facing an August fourth trial on drug trafficking
and firearms related charges files such a challenge, asking that
(01:52):
his case be dismissed because Haba is no longer an
authorized US attorney. More such challenges are sure to be filed.
My guest is Stanford law professor and Joseph O'Connell, and
will you start by explaining the law around interim US
attorney appointments.
Speaker 3 (02:10):
Sure, so, normally each district has a US attorney who's
nominated by the President and confirmed by the Senate, but
there are often incredible delays in that process. So Congress
has enacted two statutes that provide for temporary service of
US Attorney's wall, the traditional appointments process churns, so the
(02:34):
first way to get a temporary US attorney is through
twenty eight USC. Five point forty six, and that allows
the Attorney General to pick what is called an interim
US attorney and that person can serve for one hundred
and twenty days, and then at the expiration of that
(02:55):
one twenty day period, the district court in that district
may doesn't have to May pick an interim US attorney
who can serve until someone is confirmed to the position.
There's also another statute that covers more than just US attorneys,
so five forty six just covers US attorneys. There's something
(03:15):
called the Federal Vacancy's Reform Act of nineteen ninety eight,
which is the latest in a long history of vacancies acts.
We've had them since the late eighteenth century. And the
Vacancy's Act allows acting US attorneys and also acting leaders
in a bunch of other positions, and they are there
are also time limits. There's no role for the district court.
(03:39):
And I would say maybe two of the biggest differences
between the five forty six statute just for US attorneys
and the Federal Vacancies Act of nineteen ninety eight are
the followings. So first, under five forty six, anyone can
be picked as the interim US Attorney by the Attorney
General and then by the District Court. The person doesn't
(04:00):
have to already be within the Department of Justice. That's
not true for the Federal Vacancy's Reform Act. For the
Federal Vacancy's Reform Act, there are three categories where people
can be drawn from and they all have to be
already within the government. And the second difference is that
under five p. Forty six you can both be the
interim and the nominee for the position, and under the
(04:23):
Vacancies Act, in very few circumstances you can be. But
in the circumstance in New Jersey, she couldn't both be
the acting US Attorney and the nominee.
Speaker 1 (04:35):
So the one hundred and twenty days was running out
and New Jersey federal judges chose Habbah's hand picked first assistant,
Desiree Grace, to replace her, but within hours the Attorney
General fired Grace. Is the ag allowed to fire Grace
once the judges have appointed her.
Speaker 3 (04:55):
No, so Attorney General Bondi could fire her from being
first assistant. That's within her powers. But although the Attorney
General is supposed to pick the US attorney in the
interim capacity under five forty six, she cannot fire someone
who is picked by the Court. And why is that
Because under constitutional law, the Supreme Court has held in
(05:16):
multiple cases that the power to remove follows the power
to appoint for these inferior offices, which US attorneys are,
unless Congress has specified otherwise. Now, under that rule, the
Court has appointed, so only the Court can remove. But
that runs up against another constitutional law principle about separation
(05:37):
of powers. So the Office of Legal Counsel has long
held that the president and only the president, can fire
a court appointed interim US attorney. And we saw this
happen in the first Trump administration when President Trump fired
Jeff Berman, and there was a bit of a skerfuffle
about it because initially it seemed as if Attorney General
bar was pushing him out, and finally it kind of
(05:59):
came down and the President got involved and Jeff Berman left,
So here.
Speaker 1 (06:04):
The president could fire Grace with no problem.
Speaker 3 (06:07):
That's right, And I think you could say that happened arguably.
I mean after Attorney General Bondi's ex post. I mean,
we're running government through ex posts. But after Attorney General
Pam Bondi's ex post, which doesn't talk about the president's
authority at all, Todd Blanche, who's the Deputy Attorney General,
says that pursue into presidential authority. They're firing Grace as
(06:31):
the court appointed a US attorney, and I think that's
probably enough. I mean, you could argue about the wording.
I mean, interestingly, I was fired by President Trump from
a part time position on January twenty first, and the
email that I received says, on behalf of President Donald J. Trump,
I was terminated for my position, So maybe you could
(06:52):
argue it wasn't truly the president firing. But I think
that most would think, at least functionally, the president has
fired Grace from the interim position.
Speaker 1 (07:00):
The Trump administration did is withdrew her appointment to be
the US Attorney for New Jersey, so they allowed her
to resign as interim US Attorney, then appointed her as
first Assistant US Attorney, So that automatically means she's in
the role of acting US attorney for another two hundred
and ten days.
Speaker 3 (07:21):
That's right. So there are these three pools or categories
I talked about, and the first pool under the Vacancy's
Act is the first assistant to the position is the
default acting official. There's no further action that has to
be taken by the president. So once she's slotted into
that first assistant position, she then becomes the acting US Attorney.
Speaker 1 (07:42):
At the end of her two hundred ten days. Can
the Trump administration reappoint her?
Speaker 3 (07:49):
No, Well, it's contested. Under five forty six. The administration
and previous administrations have done successive one hundred and twenty
day appointment. So in the District of DC, we had
ed Martin. Ed Martin was not picked. They then picked
a different person for another one hundred and twenty day service.
Jamie kiro So, I think, although Congress did not intend
(08:13):
it when they put back these time limits in two
thousand and seven into section five forty six, I think
you could probably do a successive one to twenty day appointment,
but under the Vacancies Act you can't. The language there
is clear that you can't just reappoint, right, you can't
just keep doing new two hundred and ten day acting officials.
And there's even a penalty provision in the Vacancies Act.
(08:35):
If you violate the time limits, certain actions can be
voided by the court, So that would give like a
boon to criminal defendants if she's served past the two
hundred ten days. Let me just say two things about
the two hundred ten days and how long she can serve.
Is that if there's a nomination pending, not of her right,
because she can't both be the first assistant acting and
the nominee. But if there's a nomination pending of someone else,
(08:58):
she can continue to or during the pendency of that nomination,
plus another two hundred and ten days if that nomination
is returned, and she can do it a second time. Right,
If there's a second nomination, she can serve through the
pendency of that second nominations and a final two hundred
and ten days at the end. The other thing I
would say is that everyone is assuming that she only
(09:18):
has two hundred and ten days to serve because they're
dating the vacancy from the end of the interim service.
But I do think there's an argument, likely not as strong,
that the vacancy actually dates from the start of the administration,
from when we kind of consider the departure of the
last Senate confirmed person, and under the Vacancy's Act, you
would have three hundred days from January twentieth, and so
(09:43):
that's like another thing about the time limits of her service.
Speaker 1 (09:46):
It seems pretty obvious that the Trump administration wants her
in this position. Is there anything else they can do
so that she can be nominated again to be US Attorney?
Speaker 3 (09:56):
So she can't both be the acting US Attorney and
the nominee. But I think we might look to the
Mark Esper situation in the first term of President Trump.
So Mark Esper had been confirmed to be one of
the service secretaries of the Defense Department. There was a
whole thing about who is going to be the next
Secretary of Defense. He became the acting Secretary of Defense.
(10:21):
President Trump decides, actually he wants Esbert to become the
next secretary, but he can't both be the acting and
the nominee for the Secretary of Defense position. So what
happened is the White House coordinated with the Senate so
that Mark Esper continue to serve as acting. Then they
submitted the nomination to the Senate. Mark Esper had to
(10:43):
step down being acting. Another acting came into the role
for a few days, they had coordinated with the Senate,
so the confirmation process took only a few days as
a formal matter, from the date of the official submission
to the actual confirmation. And so I wonder, I know
nothing about the machinations in the White House, but I wonder,
(11:03):
if they really want are in and their sufficient support
in the Senate, could they coordinate with Senate leaders so
that she steps down for a few days when the
Senate is ready to vote on a nomination. They then
formally submit a nomination again, and there's just a pause
of several days of her serving as the acting US Attorney.
Speaker 1 (11:27):
But there's this centurial Senate custom called the blue slip,
and both New Jersey Democratic senators are against her nominations,
so they won't advance the blue slip.
Speaker 3 (11:38):
Right, Clearly, Mark Esper had a lot more support, and
not just among Republicans. Second, would this be an opportunity
to make changes to the blue slip process when it
comes to the US Attorney position?
Speaker 1 (11:53):
Coming up next? Disarray in New Jersey's federal criminal courts.
I'm June Grosso and you're listening to Bloomberg. Federal criminal
cases in New Jersey have been thrown into turmoil by
the controversy over whether Alina Habba, the acting US Attorney,
was legally appointed. Proceedings in federal criminal court have basically
(12:15):
been frozen as the controversy plays out. In the first
such case, a man's schedule to be tried on August
fourth on drug trafficking and firearms related charges is fighting
his prosecution on the grounds that Habba is no longer
an authorized US attorney and that prosecutors can't move forward
with the case without a validly appointed official. The Chief
(12:38):
Judge of the Third Circuit Court of Appeals has already
reassigned that case from a New Jersey judge to the
chief judge for the Middle District of Pennsylvania. It's surely
not the last such motion from a defendant facing federal
charges in New Jersey. I've been talking to Stamford law
professor and Joseph O'Connell and the defendant. One's first argument
(13:01):
is that Habbah's reappointment violates the Federal Vacancy's Reform Act
because it prohibits people whose nominations have been submitted to
the Senate from serving in an acting capacity for the
same office, regardless of a subsequent withdrawal of the nomination.
Speaker 4 (13:21):
So the first claim is a statutory claim, and it's
about whether she can serve as the acting official under
the Federal Vacancy's Reform Act. And under the Federal Vacancy's
Reformat which is an incredibly complicated statute, it says that
someone cannot serve as an acting if quote, the President
submits a nomination of such person to the Senate for
(13:43):
appointment to such office end quote. So the argument that's
being made is that although the nomination was withdrawn at
some point, the President did in fact submit the nomination,
and under the language of the Vacancies Act, she cannot
be the acting US Attorney. Now, I think it's possible,
(14:04):
and the government's going to argue that that language can
be read another way. I mean, the verb on submission
is in present tense, right, the President submits a nomination,
so I think that can alternatively be read to say
that the nomination is pending. And so the withdrawal of
her nomination actually does permit her to be the acting
(14:26):
because she is no longer the nominee. But in the
chaotic net of events, this is going to have to
get litigated because both readings are plausible. I think the
government's reading is a bit better, but the other reading
is not ruled out. So that's the statutory claim that.
Speaker 1 (14:45):
Hasn't been litigated before that issue.
Speaker 4 (14:48):
I cannot think of an example where the President has
had to withdraw a nominations in order to allow someone
to be the acting under the Federal day can sees
re format I will say that in kind of lure
of the Vacancies Act, we think, well, so long as
a nomination is pending, in many circumstances, you can have
(15:12):
an acting official.
Speaker 1 (15:14):
The second argument is that Hobba's reappointment violates twenty eight Usc.
Section five forty six D, saying that once an interim
US attorney statutory term expires without Senate confirmation, the exclusive
authority to appoint an interim us attorney shifts to the
district court, and that the Attorney General's dismissal of Grace
(15:37):
and reinstatement of Habba constitutes unlawful executive interference.
Speaker 4 (15:44):
Yeah, so I can read this both as a statutory
claim and a constitutional claim. I think a statutory claim
is pretty hard because the language of five forty six
says that the district court you can appoint someone, not
that they have to appoint someone, and so it allows
the option of district court appointment, which under the appointments clause,
(16:08):
the Congress can choose a court of law as one
of the alternatives for selection of temporary officials for these
lower levels inferior offices. I do think that there's maybe
a linked constitutional claim, and that's the idea that once
the district court does exercise that power, so the power
is optional. But here they did exercise it. They chose misgrace,
(16:32):
and you could make the constitutional argument that once she's chosen,
the only way to remove her is by the person
who picked her, which is the court. This is the
idea that the power to remove follows the power to appoint. Now,
I do think there's an Office of Legal Counsel opinion
here that raises separation of powers issues, and OLLC has
(16:54):
appined claimed but the president can remove a district court appointment,
and I think that's probably right. I do think there
may be yet another legal issue incorporated, and that's whether,
given that we have Section five forty six, whether the
White House can even turn to the federal vacancy's reformat
(17:16):
This is an issue in President Trump's first term over
about who was the proper acting or temporary head of
the Consumer Financial Protection Bureau. We had Beander English kind
of came in under Dodd Frank's provision, a specific provision
about the CSPB.
Speaker 2 (17:33):
But then we had Nick.
Speaker 4 (17:34):
Mulbany, who came in under the Vacancies Act. They both
turned up to work the Monday after Thanksgiving and one
of the issues was, well, if there's a specific succession provision,
can you have the general Vacancies Act that's available? And
I think that can get litigated as well. I do
think that both are available, but it's tricky because the
(17:58):
Vacancy's Act says that it's cool. The exclusive means for
temporarily authorizing and acting official to perform an assumptions and
duties of at a covered office by the Vacancies Act.
But it also permits quote a statutory provision expressly end
quote to provide for an alternative. And so the question
is how do you read that exclusive language? And generally
(18:22):
the courts, not in the US Attorney context but in
other contexts have said, well, sort of in calling the
Vacancies Act the exclusive means, that's true unless there's another
apple gooble statute, the ideas that Congress has recognized that
there will be cases where the Vacancy's Reform Act is
actually non exclusive. So what does that mean that you
(18:43):
could actually have both? But I think that could also
play out as a claim. And all of this is
creating chaos and it's going to slow down the activity
of the U. S. Attorney's Office in New Jersey. I mean,
right now, it's essentially frozen.
Speaker 1 (18:59):
This case was originally assigned, of course, to a judge
in New Jersey, but the Chief Judge of the Third
Circuit Court of Appeals has reassigned the case to a
judge in Pennsylvania. In fact, the chief Judge for the
Middle District of Pennsylvania, and the one sentence order said
the trial is being moved in the public interest. Does
(19:20):
that indicate that the Third Circuit's chief judge thinks there's
a problem here too.
Speaker 4 (19:25):
Unlike when litigant speak a stay or pilmarian junction or
tro and the court has to assess the likelihood of
the merit, I don't think that's quite the same here.
The way I'm reading this is that this is not
a frivolous argument, and they want to figure it out
(19:46):
before they have any issues with sort of conflict or
perceptions of bias, because after all, it was the District
Court of New Jersey who chose msgrace under five forty sixty.
But I'm not reading into that action that they think
that this litigation is going to succeed, just that that
(20:07):
there are arguable claims and even if it's not going
to succeed, right, I actually think it's an uphill battle.
I'm not saying it won't succeed. I just think it's
an uphill battle against the government on these arguments. It's
going to slow step down, and it's going to change workload.
If all of that work in New Jersey then has
(20:28):
to be heard by district court judges in other districts,
it's just a mess. Even assuming the government is likely
to win in the end, it's still creating an incredible
amount of chaos. These various actions by the Trump administration.
Speaker 1 (20:43):
Did something similar happen with John Sarcone, who was the
interim US Attorney for the Albany based Northern District of
New York.
Speaker 3 (20:53):
It had some similarity, so he had been picked to
be the interim US attorney. I will say both Tony
and Haba. Seems like they were picked by the president
to be the interim US Attorney. And one interesting wrinkle
is Section five forty six actually says the Attorney General
is supposed to pick, not the president. I think, given
cabinet department control by the White House, I think it's fine.
(21:16):
But it's an interesting little wrinkle that criminal defendants might
be able to go after. But yeah, so he was
picked as interim US Attorney and they are the District
Court didn't pick him, but didn't pick anyone else. So
the Northern of New York just didn't exercise their statutory
authority to name an interim the US Attorney. And he
got himself named as special attorney to the Attorney General.
(21:40):
And then somehow, as I'm understanding the news reporting, got
that position to be named as the first assistant position,
and so again kind of by default, he becomes the
acting US Attorney. Now there, I do think there is
a question like, is this like the ken Kuchinelli situation.
Did we just create a new first assistant position in
(22:04):
the Northern District of New York? How did the succession
order get changed? I'd like to know a lot more
about what went down in the Northern District of New York.
I will say, in both these cases and in other cases,
it's a little weird to have a court role in
appointing US attorneys. Now I think it's fine. We have
(22:24):
this case called Morrison versus Olsen, where the Supreme Court
upheld with only Justice Scalia dissenting the appointment of an
independent council by a court panel. But it does raise
certain separation of powers concerns, and actually Justice Thomas, in
his descent in the Braidwood case this past term, has
(22:45):
a footnote saying that he thinks court appointed inferior executive
officers are unconstitutional, so that there should be sort of
no role for the Court in this process.
Speaker 1 (22:56):
What's the downside for the Trump administration with this maneuvering.
Speaker 4 (23:00):
I do think that these moves by the Trump administration
are legal, even if there are plausible arguments on the
other side. But the chaotic way it's being carried out
is shining public attention to the administration's choices for these positions,
to these temporary picks who normally don't get much attention
(23:24):
at all. So even if they're upheld as a legal matter,
there's now so much more oversight and worry, and they're
going to be consequences for the Trump administration later on.
Speaker 1 (23:37):
And I have to say, this is such a confusing
legal area.
Speaker 3 (23:42):
There's a great story. So in twenty seventeen, the Supreme
Court heard a case about the Federal Vacancy's Reform Act,
and it was actually about who could both be the
acting and the nominee and an oral argument, Justice Kagan
asks the lawyer who wants there to be a Vacancy's
Act violation found. She says, why don't you just go
out to the public and say the Vacancies Act has
(24:04):
been violated? And the lawyer looks at her and says,
because then I would have to explain the Vacancies Act.
And the courtroom burst into laughter. And there's something to that.
It's an incredibly complex statute.
Speaker 1 (24:18):
Well, you certainly know every section and sub section of it.
Thanks so much.
Speaker 2 (24:22):
An.
Speaker 1 (24:23):
That's Stanford Law School professor and Joseph O'Connell coming up
next on the Bloomberg Law Show. A mass exodus from
the US Attorney's Office in Los Angeles. I'm June Grosso
and you're listening to Bloomberg. There's been a mass exodus
from the Los Angeles US Attorney's Office in the three
(24:44):
plus months that Bill Aselli has been running the office.
May Espoto Bloomberg Law LA Courts correspondent has written about
his tenure, and she joins me now start by telling
us how many prosecutors and from what levels have left
the office since he took the helm.
Speaker 2 (25:04):
So since the beginning of the year the number that
our sources have reported to us is eighty eighty people
have left the office, which is about a third of
the legal staff. And they've been leaving from many different
levels of the office. They include the criminal chief, the
head of public corruption, the head of immigration enforcement, which
(25:27):
is especially noteworthy given that in June there were major
anti deportation protests in Los Angeles and a major immigration crackdown.
People who wouldn't have expected to leave the office and
have been part of it across many different presidential administrations.
Saying that this is too much you and.
Speaker 1 (25:44):
Your colleague Ben Penn spoke to more than thirty current
and former employees at the office and other lawyers who
interact with them. Is part of the problem that Assie
has a strident way of communicating.
Speaker 2 (26:00):
That's a good way of putting it, Yes, Ben and
I spoke with more than thirty people. They described him
as having a strident a communication style. They described him yelling.
So four of the current and former federal prosecutors who
spoke with Ben told him that as Day shouted blank
(26:20):
the Justice Manual at a team of his attorneys that
was pursuing a protest related indictment. You can fill in
the blank with whatever word of your choice, but it
was a colorful one. And that happened, according to these sources,
during a break from a presentation to a grand jury.
And what they told us is that a grand juror
actually overheard the exchange.
Speaker 1 (26:42):
The old saying is that a prosecutor can get a
grand jury to indict a ham sandwich. But has the
office been having problems getting grand jurors to return indictments?
Speaker 2 (26:54):
Right? That is something that La Times actually reported on
a few days before we did. We're seeing this kind
of surgeon grand jury denials, which is a bit rare
because they have a much lower bar of proof to
return indictments than a trial jury would need to convict.
And so a couple of the lawyers that Ben spoke
(27:17):
with said that if Sale is instructing prosecutors to take
these cases from an LA grand jury to an Orange
County grand jury that is in a more republican area
compared to blue Los Angeles.
Speaker 1 (27:35):
When he first started, what kinds of cases was he
concentrating on.
Speaker 2 (27:40):
Well, through it all, he's been emphasizing immigration enforcement. So
he has ramped up immigration enforcement in the Central District
of California in a way that our sources told us
not even his predecessor under the prior Trump administration did.
He's also been shifting away, reportedly from these corporate crime investigations.
(28:07):
And as we got into June and as Los Angeles
became this national story around immigration enforcement, these protest cases
started emerging, and not only did he, according to our sources,
push to make sure that they were prosecuted, he was
also posting the faces of people who had been arrested
(28:30):
in connection with the protest And a lot of the
tension that we reported on within the office is stemming
from his handling of these protest cases that are very
salient to Trump's space.
Speaker 1 (28:43):
Asli was a prosecutor before, it's not that he doesn't
have experience here.
Speaker 2 (28:49):
He worked in Los Angeles and riverside for the Central
District of California, and he left that job to take
a stint as a lawmaker in Sacramento. A state lawmaker,
he was known for getting into some yelling fights on
(29:10):
the floor. Up there.
Speaker 1 (29:12):
There was a case against an LA resident for distributing
face shields to protesters. Explain how he went up to
main Justice to get that through.
Speaker 2 (29:25):
So this is a resident named Alejandro Oriana, and he
was charged for distributing face shields to protesters. But sources
told Ben that A. Sailey had to go to the
top of the Justice Department to salvage the case because
layer after layer of the DOJ recommended against the charge.
(29:48):
The charge required consultation with the National Security Division in
Washington before it could go to a grand jury. The
head of NSC recommended against bringing the charge to a
grand jury. Then he went to the Deputy Attorney General's
office and the dad's office did give him the green light.
Speaker 1 (30:06):
Your story reveals several instances where he refused to follow recommendations,
including in a case involving a Walmart employee.
Speaker 2 (30:17):
Right he went over the office supervisor's advice, according to
our sources, not to charge this twenty year old Walmart
employee for assaulting and immigration officer. At that point, video
of the arrest was going viral suggesting that the Border
Patrol agents were the ones using physical force against the
(30:38):
Walmart employee, who was a US citizen, and an FBI
agent said there was not enough evidence, according to our sources,
and declined to sign a complaint. Within a day, another
agent signed off on a different charge, but the social
media post from a saie asserting the employee would be
(30:59):
charged with punching an agent is still on x.
Speaker 1 (31:02):
Also, I remember this case where there was an excessive force,
a felony excessive force conviction against an LA County Sheriff's
Department deputy, and he reached a plea deal with him
after he'd already been convicted.
Speaker 2 (31:20):
Right, So that case is one I've been in the
courtroom for a few times. This is deputy named Discovered Kirk,
and he was convicted by a jury of felony excessive
force for slamming a black woman to the ground in
a parking lot. And at first the office tried to
(31:43):
push his sentencing to August, which is after his interim
period would expire, and the judge declined to do so
and after that, the prosecutors asked the federal judge to
approve this post trial plea agreement that they were aiming
to use to reduce his conviction from a felony to
(32:05):
a misdemeanor and release him on probation. Ultimately, Kirk was
sentenced to four months and Kirk is appealing, but that
caused significant drama within the Los Angeles legal community. This
post child plea agreement is something that we don't see
very often at all.
Speaker 1 (32:26):
President Trump has never formally nominated him to the position.
Speaker 2 (32:32):
Correct, he will be named acting tomorrow, is what the
DJ has confirmed with US. Tomorrow being Wednesday, So.
Speaker 1 (32:41):
That'll give him another two hundred and ten days in office.
And you reported that he's never acknowledged the term interim
in his title.
Speaker 2 (32:50):
Correct. A couple of our sources said that he will
insist that he should be referred to as the US
Attorney no interim.
Speaker 1 (33:00):
Well, now he'll receive a new acting appointment. And this
follows the same playbook the administration used Tuesday for Nevada's
top prosecutor. The maneuver under the vacancy's reformac to keep
the appointee for two hundred and ten days. It's the
fourth time this month that the Executive branch has moved
to retain a controversial chief prosecutor without the judiciary's approval.
(33:24):
Thanks so much, Maya. That's Bloomberg Law LA Courts correspondent
Maya Spodo, and that's it for this edition of The
Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law Podcast. You can find
them on Apple Podcasts, Spotify, and at www dot bloomberg
dot com, slash podcast Slash Law, and remember to tune
(33:45):
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
You may be familiar with Elena Haba from her vigorous
defense of President Donald Trump in three civil lawsuits in
New York which Trump lost, including a defamation suit brought
by writer Egene Carroll.
Speaker 2 (00:23):
This is wrong, but we are in the state of
New York.
Speaker 1 (00:25):
We are in a New York Jerry, and that is
why we are seeing these witch hunts, these hoaxes, as
he calls them, and this is another one of them.
Speaker 2 (00:32):
Be brought in New York.
Speaker 1 (00:35):
I was yelled at, and I've had a judge who
is unhinged slamming a table.
Speaker 2 (00:40):
Let me be very clear.
Speaker 3 (00:41):
I don't tolerate that in my life.
Speaker 2 (00:43):
I'm not going to tolerate it here.
Speaker 1 (00:45):
What we aren't witnessing today is the blatant and unapologetic
weaponization of the criminal justice system. Trump appointed Haba, who's
never worked as a prosecutor, as acting US Attorney for
in March, but both the state's Democratic senators opposed her nomination,
(01:05):
and she became the second Trump US attorney nominee to
fail to receive Senate confirmation. When Habba's one hundred twenty
day interim term expired. Federal judges in the state chose
her top assistant, Desiree Grace, to succeed her, but hours later,
Attorney General Pam Bondi fired Grace. Habba resigned, and Bondi
(01:28):
then named her to be the chief Deputy in the
U s Attorney's Office, meaning she'll automatically inherit the title
of acting US Attorney for New Jersey. The procedural maneuvering
opens the door to legal challenges from defendants, and this week,
a defendant facing an August fourth trial on drug trafficking
and firearms related charges files such a challenge, asking that
(01:52):
his case be dismissed because Haba is no longer an
authorized US attorney. More such challenges are sure to be filed.
My guest is Stanford law professor and Joseph O'Connell, and
will you start by explaining the law around interim US
attorney appointments.
Speaker 3 (02:10):
Sure, so, normally each district has a US attorney who's
nominated by the President and confirmed by the Senate, but
there are often incredible delays in that process. So Congress
has enacted two statutes that provide for temporary service of
US Attorney's wall, the traditional appointments process churns, so the
(02:34):
first way to get a temporary US attorney is through
twenty eight USC. Five point forty six, and that allows
the Attorney General to pick what is called an interim
US attorney and that person can serve for one hundred
and twenty days, and then at the expiration of that
(02:55):
one twenty day period, the district court in that district
may doesn't have to May pick an interim US attorney
who can serve until someone is confirmed to the position.
There's also another statute that covers more than just US attorneys,
so five forty six just covers US attorneys. There's something
(03:15):
called the Federal Vacancy's Reform Act of nineteen ninety eight,
which is the latest in a long history of vacancies acts.
We've had them since the late eighteenth century. And the
Vacancy's Act allows acting US attorneys and also acting leaders
in a bunch of other positions, and they are there
are also time limits. There's no role for the district court.
(03:39):
And I would say maybe two of the biggest differences
between the five forty six statute just for US attorneys
and the Federal Vacancies Act of nineteen ninety eight are
the followings. So first, under five forty six, anyone can
be picked as the interim US Attorney by the Attorney
General and then by the District Court. The person doesn't
(04:00):
have to already be within the Department of Justice. That's
not true for the Federal Vacancy's Reform Act. For the
Federal Vacancy's Reform Act, there are three categories where people
can be drawn from and they all have to be
already within the government. And the second difference is that
under five p. Forty six you can both be the
interim and the nominee for the position, and under the
(04:23):
Vacancies Act, in very few circumstances you can be. But
in the circumstance in New Jersey, she couldn't both be
the acting US Attorney and the nominee.
Speaker 1 (04:35):
So the one hundred and twenty days was running out
and New Jersey federal judges chose Habbah's hand picked first assistant,
Desiree Grace, to replace her, but within hours the Attorney
General fired Grace. Is the ag allowed to fire Grace
once the judges have appointed her.
Speaker 3 (04:55):
No, so Attorney General Bondi could fire her from being
first assistant. That's within her powers. But although the Attorney
General is supposed to pick the US attorney in the
interim capacity under five forty six, she cannot fire someone
who is picked by the Court. And why is that
Because under constitutional law, the Supreme Court has held in
(05:16):
multiple cases that the power to remove follows the power
to appoint for these inferior offices, which US attorneys are,
unless Congress has specified otherwise. Now, under that rule, the
Court has appointed, so only the Court can remove. But
that runs up against another constitutional law principle about separation
(05:37):
of powers. So the Office of Legal Counsel has long
held that the president and only the president, can fire
a court appointed interim US attorney. And we saw this
happen in the first Trump administration when President Trump fired
Jeff Berman, and there was a bit of a skerfuffle
about it because initially it seemed as if Attorney General
bar was pushing him out, and finally it kind of
(05:59):
came down and the President got involved and Jeff Berman left,
So here.
Speaker 1 (06:04):
The president could fire Grace with no problem.
Speaker 3 (06:07):
That's right, And I think you could say that happened arguably.
I mean after Attorney General Bondi's ex post. I mean,
we're running government through ex posts. But after Attorney General
Pam Bondi's ex post, which doesn't talk about the president's
authority at all, Todd Blanche, who's the Deputy Attorney General,
says that pursue into presidential authority. They're firing Grace as
(06:31):
the court appointed a US attorney, and I think that's
probably enough. I mean, you could argue about the wording.
I mean, interestingly, I was fired by President Trump from
a part time position on January twenty first, and the
email that I received says, on behalf of President Donald J. Trump,
I was terminated for my position, So maybe you could
(06:52):
argue it wasn't truly the president firing. But I think
that most would think, at least functionally, the president has
fired Grace from the interim position.
Speaker 1 (07:00):
The Trump administration did is withdrew her appointment to be
the US Attorney for New Jersey, so they allowed her
to resign as interim US Attorney, then appointed her as
first Assistant US Attorney, So that automatically means she's in
the role of acting US attorney for another two hundred
and ten days.
Speaker 3 (07:21):
That's right. So there are these three pools or categories
I talked about, and the first pool under the Vacancy's
Act is the first assistant to the position is the
default acting official. There's no further action that has to
be taken by the president. So once she's slotted into
that first assistant position, she then becomes the acting US Attorney.
Speaker 1 (07:42):
At the end of her two hundred ten days. Can
the Trump administration reappoint her?
Speaker 3 (07:49):
No, Well, it's contested. Under five forty six. The administration
and previous administrations have done successive one hundred and twenty
day appointment. So in the District of DC, we had
ed Martin. Ed Martin was not picked. They then picked
a different person for another one hundred and twenty day service.
Jamie kiro So, I think, although Congress did not intend
(08:13):
it when they put back these time limits in two
thousand and seven into section five forty six, I think
you could probably do a successive one to twenty day appointment,
but under the Vacancies Act you can't. The language there
is clear that you can't just reappoint, right, you can't
just keep doing new two hundred and ten day acting officials.
And there's even a penalty provision in the Vacancies Act.
(08:35):
If you violate the time limits, certain actions can be
voided by the court, So that would give like a
boon to criminal defendants if she's served past the two
hundred ten days. Let me just say two things about
the two hundred ten days and how long she can serve.
Is that if there's a nomination pending, not of her right,
because she can't both be the first assistant acting and
the nominee. But if there's a nomination pending of someone else,
(08:58):
she can continue to or during the pendency of that nomination,
plus another two hundred and ten days if that nomination
is returned, and she can do it a second time. Right,
If there's a second nomination, she can serve through the
pendency of that second nominations and a final two hundred
and ten days at the end. The other thing I
would say is that everyone is assuming that she only
(09:18):
has two hundred and ten days to serve because they're
dating the vacancy from the end of the interim service.
But I do think there's an argument, likely not as strong,
that the vacancy actually dates from the start of the administration,
from when we kind of consider the departure of the
last Senate confirmed person, and under the Vacancy's Act, you
would have three hundred days from January twentieth, and so
(09:43):
that's like another thing about the time limits of her service.
Speaker 1 (09:46):
It seems pretty obvious that the Trump administration wants her
in this position. Is there anything else they can do
so that she can be nominated again to be US Attorney?
Speaker 3 (09:56):
So she can't both be the acting US Attorney and
the nominee. But I think we might look to the
Mark Esper situation in the first term of President Trump.
So Mark Esper had been confirmed to be one of
the service secretaries of the Defense Department. There was a
whole thing about who is going to be the next
Secretary of Defense. He became the acting Secretary of Defense.
(10:21):
President Trump decides, actually he wants Esbert to become the
next secretary, but he can't both be the acting and
the nominee for the Secretary of Defense position. So what
happened is the White House coordinated with the Senate so
that Mark Esper continue to serve as acting. Then they
submitted the nomination to the Senate. Mark Esper had to
(10:43):
step down being acting. Another acting came into the role
for a few days, they had coordinated with the Senate,
so the confirmation process took only a few days as
a formal matter, from the date of the official submission
to the actual confirmation. And so I wonder, I know
nothing about the machinations in the White House, but I wonder,
(11:03):
if they really want are in and their sufficient support
in the Senate, could they coordinate with Senate leaders so
that she steps down for a few days when the
Senate is ready to vote on a nomination. They then
formally submit a nomination again, and there's just a pause
of several days of her serving as the acting US Attorney.
Speaker 1 (11:27):
But there's this centurial Senate custom called the blue slip,
and both New Jersey Democratic senators are against her nominations,
so they won't advance the blue slip.
Speaker 3 (11:38):
Right, Clearly, Mark Esper had a lot more support, and
not just among Republicans. Second, would this be an opportunity
to make changes to the blue slip process when it
comes to the US Attorney position?
Speaker 1 (11:53):
Coming up next? Disarray in New Jersey's federal criminal courts.
I'm June Grosso and you're listening to Bloomberg. Federal criminal
cases in New Jersey have been thrown into turmoil by
the controversy over whether Alina Habba, the acting US Attorney,
was legally appointed. Proceedings in federal criminal court have basically
(12:15):
been frozen as the controversy plays out. In the first
such case, a man's schedule to be tried on August
fourth on drug trafficking and firearms related charges is fighting
his prosecution on the grounds that Habba is no longer
an authorized US attorney and that prosecutors can't move forward
with the case without a validly appointed official. The Chief
(12:38):
Judge of the Third Circuit Court of Appeals has already
reassigned that case from a New Jersey judge to the
chief judge for the Middle District of Pennsylvania. It's surely
not the last such motion from a defendant facing federal
charges in New Jersey. I've been talking to Stamford law
professor and Joseph O'Connell and the defendant. One's first argument
(13:01):
is that Habbah's reappointment violates the Federal Vacancy's Reform Act
because it prohibits people whose nominations have been submitted to
the Senate from serving in an acting capacity for the
same office, regardless of a subsequent withdrawal of the nomination.
Speaker 4 (13:21):
So the first claim is a statutory claim, and it's
about whether she can serve as the acting official under
the Federal Vacancy's Reform Act. And under the Federal Vacancy's
Reformat which is an incredibly complicated statute, it says that
someone cannot serve as an acting if quote, the President
submits a nomination of such person to the Senate for
(13:43):
appointment to such office end quote. So the argument that's
being made is that although the nomination was withdrawn at
some point, the President did in fact submit the nomination,
and under the language of the Vacancies Act, she cannot
be the acting US Attorney. Now, I think it's possible,
(14:04):
and the government's going to argue that that language can
be read another way. I mean, the verb on submission
is in present tense, right, the President submits a nomination,
so I think that can alternatively be read to say
that the nomination is pending. And so the withdrawal of
her nomination actually does permit her to be the acting
(14:26):
because she is no longer the nominee. But in the
chaotic net of events, this is going to have to
get litigated because both readings are plausible. I think the
government's reading is a bit better, but the other reading
is not ruled out. So that's the statutory claim that.
Speaker 1 (14:45):
Hasn't been litigated before that issue.
Speaker 4 (14:48):
I cannot think of an example where the President has
had to withdraw a nominations in order to allow someone
to be the acting under the Federal day can sees
re format I will say that in kind of lure
of the Vacancies Act, we think, well, so long as
a nomination is pending, in many circumstances, you can have
(15:12):
an acting official.
Speaker 1 (15:14):
The second argument is that Hobba's reappointment violates twenty eight Usc.
Section five forty six D, saying that once an interim
US attorney statutory term expires without Senate confirmation, the exclusive
authority to appoint an interim us attorney shifts to the
district court, and that the Attorney General's dismissal of Grace
(15:37):
and reinstatement of Habba constitutes unlawful executive interference.
Speaker 4 (15:44):
Yeah, so I can read this both as a statutory
claim and a constitutional claim. I think a statutory claim
is pretty hard because the language of five forty six
says that the district court you can appoint someone, not
that they have to appoint someone, and so it allows
the option of district court appointment, which under the appointments clause,
(16:08):
the Congress can choose a court of law as one
of the alternatives for selection of temporary officials for these
lower levels inferior offices. I do think that there's maybe
a linked constitutional claim, and that's the idea that once
the district court does exercise that power, so the power
is optional. But here they did exercise it. They chose misgrace,
(16:32):
and you could make the constitutional argument that once she's chosen,
the only way to remove her is by the person
who picked her, which is the court. This is the
idea that the power to remove follows the power to appoint. Now,
I do think there's an Office of Legal Counsel opinion
here that raises separation of powers issues, and OLLC has
(16:54):
appined claimed but the president can remove a district court appointment,
and I think that's probably right. I do think there
may be yet another legal issue incorporated, and that's whether,
given that we have Section five forty six, whether the
White House can even turn to the federal vacancy's reformat
(17:16):
This is an issue in President Trump's first term over
about who was the proper acting or temporary head of
the Consumer Financial Protection Bureau. We had Beander English kind
of came in under Dodd Frank's provision, a specific provision
about the CSPB.
Speaker 2 (17:33):
But then we had Nick.
Speaker 4 (17:34):
Mulbany, who came in under the Vacancies Act. They both
turned up to work the Monday after Thanksgiving and one
of the issues was, well, if there's a specific succession provision,
can you have the general Vacancies Act that's available? And
I think that can get litigated as well. I do
think that both are available, but it's tricky because the
(17:58):
Vacancy's Act says that it's cool. The exclusive means for
temporarily authorizing and acting official to perform an assumptions and
duties of at a covered office by the Vacancies Act.
But it also permits quote a statutory provision expressly end
quote to provide for an alternative. And so the question
is how do you read that exclusive language? And generally
(18:22):
the courts, not in the US Attorney context but in
other contexts have said, well, sort of in calling the
Vacancies Act the exclusive means, that's true unless there's another
apple gooble statute, the ideas that Congress has recognized that
there will be cases where the Vacancy's Reform Act is
actually non exclusive. So what does that mean that you
(18:43):
could actually have both? But I think that could also
play out as a claim. And all of this is
creating chaos and it's going to slow down the activity
of the U. S. Attorney's Office in New Jersey. I mean,
right now, it's essentially frozen.
Speaker 1 (18:59):
This case was originally assigned, of course, to a judge
in New Jersey, but the Chief Judge of the Third
Circuit Court of Appeals has reassigned the case to a
judge in Pennsylvania. In fact, the chief Judge for the
Middle District of Pennsylvania, and the one sentence order said
the trial is being moved in the public interest. Does
(19:20):
that indicate that the Third Circuit's chief judge thinks there's
a problem here too.
Speaker 4 (19:25):
Unlike when litigant speak a stay or pilmarian junction or
tro and the court has to assess the likelihood of
the merit, I don't think that's quite the same here.
The way I'm reading this is that this is not
a frivolous argument, and they want to figure it out
(19:46):
before they have any issues with sort of conflict or
perceptions of bias, because after all, it was the District
Court of New Jersey who chose msgrace under five forty sixty.
But I'm not reading into that action that they think
that this litigation is going to succeed, just that that
(20:07):
there are arguable claims and even if it's not going
to succeed, right, I actually think it's an uphill battle.
I'm not saying it won't succeed. I just think it's
an uphill battle against the government on these arguments. It's
going to slow step down, and it's going to change workload.
If all of that work in New Jersey then has
(20:28):
to be heard by district court judges in other districts,
it's just a mess. Even assuming the government is likely
to win in the end, it's still creating an incredible
amount of chaos. These various actions by the Trump administration.
Speaker 1 (20:43):
Did something similar happen with John Sarcone, who was the
interim US Attorney for the Albany based Northern District of
New York.
Speaker 3 (20:53):
It had some similarity, so he had been picked to
be the interim US attorney. I will say both Tony
and Haba. Seems like they were picked by the president
to be the interim US Attorney. And one interesting wrinkle
is Section five forty six actually says the Attorney General
is supposed to pick, not the president. I think, given
cabinet department control by the White House, I think it's fine.
(21:16):
But it's an interesting little wrinkle that criminal defendants might
be able to go after. But yeah, so he was
picked as interim US Attorney and they are the District
Court didn't pick him, but didn't pick anyone else. So
the Northern of New York just didn't exercise their statutory
authority to name an interim the US Attorney. And he
got himself named as special attorney to the Attorney General.
(21:40):
And then somehow, as I'm understanding the news reporting, got
that position to be named as the first assistant position,
and so again kind of by default, he becomes the
acting US Attorney. Now there, I do think there is
a question like, is this like the ken Kuchinelli situation.
Did we just create a new first assistant position in
(22:04):
the Northern District of New York? How did the succession
order get changed? I'd like to know a lot more
about what went down in the Northern District of New York.
I will say, in both these cases and in other cases,
it's a little weird to have a court role in
appointing US attorneys. Now I think it's fine. We have
(22:24):
this case called Morrison versus Olsen, where the Supreme Court
upheld with only Justice Scalia dissenting the appointment of an
independent council by a court panel. But it does raise
certain separation of powers concerns, and actually Justice Thomas, in
his descent in the Braidwood case this past term, has
(22:45):
a footnote saying that he thinks court appointed inferior executive
officers are unconstitutional, so that there should be sort of
no role for the Court in this process.
Speaker 1 (22:56):
What's the downside for the Trump administration with this maneuvering.
Speaker 4 (23:00):
I do think that these moves by the Trump administration
are legal, even if there are plausible arguments on the
other side. But the chaotic way it's being carried out
is shining public attention to the administration's choices for these positions,
to these temporary picks who normally don't get much attention
(23:24):
at all. So even if they're upheld as a legal matter,
there's now so much more oversight and worry, and they're
going to be consequences for the Trump administration later on.
Speaker 1 (23:37):
And I have to say, this is such a confusing
legal area.
Speaker 3 (23:42):
There's a great story. So in twenty seventeen, the Supreme
Court heard a case about the Federal Vacancy's Reform Act,
and it was actually about who could both be the
acting and the nominee and an oral argument, Justice Kagan
asks the lawyer who wants there to be a Vacancy's
Act violation found. She says, why don't you just go
out to the public and say the Vacancies Act has
(24:04):
been violated? And the lawyer looks at her and says,
because then I would have to explain the Vacancies Act.
And the courtroom burst into laughter. And there's something to that.
It's an incredibly complex statute.
Speaker 1 (24:18):
Well, you certainly know every section and sub section of it.
Thanks so much.
Speaker 2 (24:22):
An.
Speaker 1 (24:23):
That's Stanford Law School professor and Joseph O'Connell coming up
next on the Bloomberg Law Show. A mass exodus from
the US Attorney's Office in Los Angeles. I'm June Grosso
and you're listening to Bloomberg. There's been a mass exodus
from the Los Angeles US Attorney's Office in the three
(24:44):
plus months that Bill Aselli has been running the office.
May Espoto Bloomberg Law LA Courts correspondent has written about
his tenure, and she joins me now start by telling
us how many prosecutors and from what levels have left
the office since he took the helm.
Speaker 2 (25:04):
So since the beginning of the year the number that
our sources have reported to us is eighty eighty people
have left the office, which is about a third of
the legal staff. And they've been leaving from many different
levels of the office. They include the criminal chief, the
head of public corruption, the head of immigration enforcement, which
(25:27):
is especially noteworthy given that in June there were major
anti deportation protests in Los Angeles and a major immigration crackdown.
People who wouldn't have expected to leave the office and
have been part of it across many different presidential administrations.
Saying that this is too much you and.
Speaker 1 (25:44):
Your colleague Ben Penn spoke to more than thirty current
and former employees at the office and other lawyers who
interact with them. Is part of the problem that Assie
has a strident way of communicating.
Speaker 2 (26:00):
That's a good way of putting it, Yes, Ben and
I spoke with more than thirty people. They described him
as having a strident a communication style. They described him yelling.
So four of the current and former federal prosecutors who
spoke with Ben told him that as Day shouted blank
(26:20):
the Justice Manual at a team of his attorneys that
was pursuing a protest related indictment. You can fill in
the blank with whatever word of your choice, but it
was a colorful one. And that happened, according to these sources,
during a break from a presentation to a grand jury.
And what they told us is that a grand juror
actually overheard the exchange.
Speaker 1 (26:42):
The old saying is that a prosecutor can get a
grand jury to indict a ham sandwich. But has the
office been having problems getting grand jurors to return indictments?
Speaker 2 (26:54):
Right? That is something that La Times actually reported on
a few days before we did. We're seeing this kind
of surgeon grand jury denials, which is a bit rare
because they have a much lower bar of proof to
return indictments than a trial jury would need to convict.
And so a couple of the lawyers that Ben spoke
(27:17):
with said that if Sale is instructing prosecutors to take
these cases from an LA grand jury to an Orange
County grand jury that is in a more republican area
compared to blue Los Angeles.
Speaker 1 (27:35):
When he first started, what kinds of cases was he
concentrating on.
Speaker 2 (27:40):
Well, through it all, he's been emphasizing immigration enforcement. So
he has ramped up immigration enforcement in the Central District
of California in a way that our sources told us
not even his predecessor under the prior Trump administration did.
He's also been shifting away, reportedly from these corporate crime investigations.
(28:07):
And as we got into June and as Los Angeles
became this national story around immigration enforcement, these protest cases
started emerging, and not only did he, according to our sources,
push to make sure that they were prosecuted, he was
also posting the faces of people who had been arrested
(28:30):
in connection with the protest And a lot of the
tension that we reported on within the office is stemming
from his handling of these protest cases that are very
salient to Trump's space.
Speaker 1 (28:43):
Asli was a prosecutor before, it's not that he doesn't
have experience here.
Speaker 2 (28:49):
He worked in Los Angeles and riverside for the Central
District of California, and he left that job to take
a stint as a lawmaker in Sacramento. A state lawmaker,
he was known for getting into some yelling fights on
(29:10):
the floor. Up there.
Speaker 1 (29:12):
There was a case against an LA resident for distributing
face shields to protesters. Explain how he went up to
main Justice to get that through.
Speaker 2 (29:25):
So this is a resident named Alejandro Oriana, and he
was charged for distributing face shields to protesters. But sources
told Ben that A. Sailey had to go to the
top of the Justice Department to salvage the case because
layer after layer of the DOJ recommended against the charge.
(29:48):
The charge required consultation with the National Security Division in
Washington before it could go to a grand jury. The
head of NSC recommended against bringing the charge to a
grand jury. Then he went to the Deputy Attorney General's
office and the dad's office did give him the green light.
Speaker 1 (30:06):
Your story reveals several instances where he refused to follow recommendations,
including in a case involving a Walmart employee.
Speaker 2 (30:17):
Right he went over the office supervisor's advice, according to
our sources, not to charge this twenty year old Walmart
employee for assaulting and immigration officer. At that point, video
of the arrest was going viral suggesting that the Border
Patrol agents were the ones using physical force against the
(30:38):
Walmart employee, who was a US citizen, and an FBI
agent said there was not enough evidence, according to our sources,
and declined to sign a complaint. Within a day, another
agent signed off on a different charge, but the social
media post from a saie asserting the employee would be
(30:59):
charged with punching an agent is still on x.
Speaker 1 (31:02):
Also, I remember this case where there was an excessive force,
a felony excessive force conviction against an LA County Sheriff's
Department deputy, and he reached a plea deal with him
after he'd already been convicted.
Speaker 2 (31:20):
Right, So that case is one I've been in the
courtroom for a few times. This is deputy named Discovered Kirk,
and he was convicted by a jury of felony excessive
force for slamming a black woman to the ground in
a parking lot. And at first the office tried to
(31:43):
push his sentencing to August, which is after his interim
period would expire, and the judge declined to do so
and after that, the prosecutors asked the federal judge to
approve this post trial plea agreement that they were aiming
to use to reduce his conviction from a felony to
(32:05):
a misdemeanor and release him on probation. Ultimately, Kirk was
sentenced to four months and Kirk is appealing, but that
caused significant drama within the Los Angeles legal community. This
post child plea agreement is something that we don't see
very often at all.
Speaker 1 (32:26):
President Trump has never formally nominated him to the position.
Speaker 2 (32:32):
Correct, he will be named acting tomorrow, is what the
DJ has confirmed with US. Tomorrow being Wednesday, So.
Speaker 1 (32:41):
That'll give him another two hundred and ten days in office.
And you reported that he's never acknowledged the term interim
in his title.
Speaker 2 (32:50):
Correct. A couple of our sources said that he will
insist that he should be referred to as the US
Attorney no interim.
Speaker 1 (33:00):
Well, now he'll receive a new acting appointment. And this
follows the same playbook the administration used Tuesday for Nevada's
top prosecutor. The maneuver under the vacancy's reformac to keep
the appointee for two hundred and ten days. It's the
fourth time this month that the Executive branch has moved
to retain a controversial chief prosecutor without the judiciary's approval.
(33:24):
Thanks so much, Maya. That's Bloomberg Law LA Courts correspondent
Maya Spodo, and that's it for this edition of The
Bloomberg Law Show. Remember you can always get the latest
legal news on our Bloomberg Law Podcast. You can find
them on Apple Podcasts, Spotify, and at www dot bloomberg
dot com, slash podcast Slash Law, and remember to tune
(33:45):
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
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