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

June Grasso talks to legal experts about the top law stories of the week.

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Episode Transcript

Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.

Speaker 2 (00:09):
A lot of people are asking me about Bardons. Obviously,
this is no time to be talking about Bardons.

Speaker 3 (00:14):
President Trump hasn't ruled out a pardon for Glaine Maxwell,
who's serving a twenty year sentence for conspiring with Jeffrey
Epstein to sexually abuse minors, but Maxwell is also exhausting
her legal options. This week, she asked the Supreme Court
to take up her appeal of her federal sex trafficking conviction.

(00:35):
Her appeal is based on a non prosecution agreement that
Epstein struck with federal prosecutors in Miami in two thousand
and seven. Maxwell argues that agreement should have barred her
prosecution in New York fourteen years later. The Supreme Court
says the justices will review Maxwell's case along with others.

(00:56):
At their first private conference after summer break on September
twenty ninth. My guest is former federal prosecutor Robert Mintz,
a partner McCarter and English. Bob tell us about this
broad prosecution agreement that Epstein got in two thousand and seven.

Speaker 2 (01:13):
The document that at the heart of the Galain Maxwell
Appeals to the Supreme Court is a non prosecution agreement
that was signed in two thousand and seven with the
US Attorney in Southern Florida involving Jeffrey Epstein. He was
facing both federal and potential state charges. The deal that

(01:34):
he ultimately struck allowed him to plead guilty to two
Florida state charges, and in exchange for that, the Department
of Justice agreed not to bring any federal charges against him.
But the critical language in the agreement said that the
United States also agrees that it will not institute any
criminal charges against any potential co conspirators of Epstein. And

(01:59):
that is the life language that Maxwell lawyers have lacked
onto to argue that her subsequent sex trafsking charges in
New York were actually barred by that non prosecution agreement.

Speaker 3 (02:12):
How unusual is it to have a non prosecution agreement
made by one US attorney bind other US attorneys in
different districts.

Speaker 2 (02:22):
That would be highly unusual. As a federal prosecutor, I
had been involved in hundreds of plea agreements, and the
standard language in all these plea agreements says that that
agreement is limited to the district. That is prosecuting you
or potentially prosecuting you in that case, and that it
expressly does not bind any other district in the country.

(02:45):
So to have language as broad as that which says
that the US Attorney in the southern districts of Florida
can bind every other judicial district in the United States
is something that would be highly unusual. No less, the
language that was in that agreement is on its face,
very broad, and that is at the heart of the

(03:06):
Maxwell appeal before the Supreme Court.

Speaker 3 (03:09):
What about the fact that in Jeffrey Epstein's non prosecution agreement,
the US Attorney is also promising not to prosecute anyone else.
Does that happen?

Speaker 2 (03:21):
Typically, what a plea rievement will say is that in
exchange for a plead or a particular crime, the US
Attorney's office will not prosecute that individual for any other
crimes related to that criminal activity. It doesn't typically say
anything about not bringing charges against any other individual. So

(03:43):
in this case, that language is incredibly broad because it
talks about not bringing any other federal charges against any
unspecified co conspirators. It doesn't even list who those individuals
may be, So it makes that language incredibly broad. And
that's why when that case was first appeal to the
Second Circuit Court of Appeals, the Second Circuit did not

(04:06):
agree that that plea agreement barred the prosecution in New
York that was ultimately brought against Gallaine Maxwell.

Speaker 3 (04:13):
That Epstein non prosecution agreement has been widely criticized. In fact,
the Justice Department said in twenty twenty that then US
Attorney for the South District of Florida, alex Acosta, used
poor judgment in handling the case, and the Second Circuit
reviewed the NPA before upholding her conviction.

Speaker 2 (04:35):
The central question raised by Maxwell's appeal to the Supreme
Court is whether a promise on behalf of the United
States that is made by one US attorney in one
district combined federal prosecutors in other districts. But it really
is more complex than even that, because here it involved
not a situation where the individual who pled guilty in

(04:56):
Florida is being prosecuted by another US attorney's office, and
in another part of the country, we're talking about another
person who was not even a party to that plea
agreement in Florida. Arguing that the plea agreement with Jeffrey
Epstein somehow barred a prosecution of Ghlaine Maxwell in New
York many years later, So it would be an incredibly

(05:18):
broad reading of that language. And in fact, the Second
Circuit Court of Appeals looked at the Plea agreement and
said that on its face, while it's possible that the
United States could conceivably refer to the entire federal government,
when they look at the context and the entirety of
that non prosecution agreement, it makes clear that when they

(05:40):
refer to the government or to the United States, they're
only referring to the US Attorney's office in the Southern
District of Florida. And therefore that language, as Glaine Maxwell'
attorneys are arguing, is really being taken out of context
because it really involved only the Southern District of Florida.
But once again, there's really two questions that are being

(06:01):
raised here. One is whether it could apply to other
US attorney's offices as against the individual who's pleading guilty
in Florida. But also here you're talking about another individual,
not even a party to the Florida agreement, who's trying
to use it as a bart of prosecution in another district.

Speaker 3 (06:17):
The Justice Department file paper is asking the Supreme Court
not to take Maxwell's case.

Speaker 2 (06:24):
Yeah, the Justice Department is opposing Maxwell's petition and essentially
arguing that it's clear in the context of that non
prosecution agreement that it was only referring to the Southern
District of Florida and was not attempting to bind other
judicial districts around the country.

Speaker 3 (06:42):
Glain Maxwell's attorneys are saying that there's a split in
the circuits, and that is something that the Supreme Court
often considers when taking a case. But they received thousands
of petitions every year and they grant review in fewer
than one hundred, So the odds of the Supreme Court
granting review here are pretty slim.

Speaker 2 (07:05):
Well, that's exactly right. It's very rare for the Supreme
Court to take these appeals. They do receive thousands of petitions,
it takes four justices to grant review, and it seems,
in my opinion, unlikely they're going to take this because
while there may be a split in the circuits around
the country, this is not an issue that comes up

(07:26):
on a regular basis, and I think in this case,
the Supreme Court is likely just to leave the second
Circuit decision in place and not take it up.

Speaker 3 (07:36):
This case is unusual in a lot of different ways,
one being that her attorney not only appeal to the
Supreme Court but also appeal to President Trump, saying, quote,
President Trump built his legacy in part on the power
of a deal, and surely he would agree that when
the United States gives its word, it must stand by it.

Speaker 2 (07:58):
Yeah. So what we're seeing here really is the court
filing in the form of this petition to the United
States Supreme Court that on his face, is fairly typical.
They're raising a legal issue. They're arguing that there is
a split in the federal circuits, which is something that
the Supreme Court considers when it decides whether or not
to take a case, and they're trying to argue that

(08:19):
the question of whether one US attorney's office can in
fact bind the entire United States is something that's important
enough that the Supreme Court ought.

Speaker 4 (08:27):
To take it up.

Speaker 2 (08:28):
On the other hand, you cannot ignore the fact that
there is a political backdrop to this appeal, in that
there's been tremendous backlash against the Department of Justice and
some of President Trump's supporters regarding the decision naturally additional
information related to the Jeffrey Epstein prosecution, and all of
that is getting swept up in this Supreme Court appeal,

(08:51):
which is why we're seeing her lawyer appeal not only
to the Supreme Court but expressly appealing to President Trump.
In the reply brief that was just recently filed with
the Supreme Court, her lawyer specifically referenced not only the
United States Supreme Court where the brief was filed, but
also Mans and President Trump and said, we are appealing

(09:13):
not only to the Supreme Court, but to the President
himself to recognize how profoundly unjust it is to scapegoat
Delane Maxwell for Epstein's crimes, especially when the government promised
he would not be prosecuted. So this is a quite
direct appeal not only to the Court but also to
President Trump in the hope that maybe he will pardon

(09:35):
her or reduce her sentence, because they know that it's
unlike the Supreme Court is going to take this appeal.

Speaker 3 (09:42):
The Supreme Court filing doesn't refer to the let's say
unusual out of court developments like her meeting for two
days last week with the Deputy Attorney General and the
House Oversight Committee subpoena in her to testify. Her attorney
had a list of conditions for her testimony, including a

(10:02):
grant of formal immunity the committee's questions in advance, and
the testimony could only take place after the resolution of
her Supreme Court petition and a Habeast petition that hasn't
even been filed yet, and if the conditions aren't met,
Maxwell would plead the fifth. Are these conditions within the

(10:22):
bounds of what a defense attorney would normally ask for
a client who's still appealing a conviction.

Speaker 2 (10:29):
Yeah, these are not really unusual requests given her circumstance,
But there also requests that the House Oversight Committee has
already determined they would not grant. What the defense lawyer
here is really trying to do is to protect his
client who is actively seeking post conviction relief, both in
the pending petition before the United States Supreme Court and

(10:51):
in a habeas petition they intend to file, and he
is arguing that her testimony before the committee could compromise
her constitutional rights, prejudice, or legal claims, and could potentially
take a future jury pool if the Supreme Court were
to take the case and overturn the lower course decision
and remand the case for another trial. So those requests

(11:12):
are really not unusual, but it was also highly unlikely
that they were going to be granted by the committee.

Speaker 3 (11:18):
Also, waiting for the resolution of the Supreme Court petition
and the filing and resolution of a habeas petition effectively
puts off her testimony for an undetermined amount of time,
and Maxwell will be serving that time at a minimum
security prison camp in Texas, where she was transferred this
week without any explanation from the Federal Bureau of Prisons.

(11:42):
Thanks for the conversation, Bob. That's Robert Mince of Macarter
and English. Coming up next, the Justice Department escalates its
fight with the federal judiciary. I'm June Grosso and you're
listening to Bloomberg. James Boseburg, the chief Judge of the
un US District Court for the District of Columbia, has

(12:03):
been at the center of the Trump administration's efforts to
deport alleged Venezuelan gang members to l Salvador using an
eighteenth century wartime law, the Alien Enemies Act. He's also
been at the center of the administration's attacks on the
federal judiciary. President Trump has called Boseburg a radical left

(12:23):
lunatic of a judge, a troublemaker and agitator, even calling
for his impeachment. That led to a rare public rebuke
from Chief Justice John Roberts in March, and Attorney General
Pam Bondi has repeatedly criticized Boseburg.

Speaker 1 (12:40):
This judge has no right to ask those questions. You
have one unelected federal judge trying to control foreign policies,
trying to control the Alien Enemies Act, which they have
no business presiding over. This judge had no right to
do that. They're meddling in foreign affairs, They're meddling in

(13:02):
our government. And the question should be why is a
judge trying to protect terrorists who have invaded our country
over American citizens, and then, of course Boseburg trying to
control our foreign policy. These judges are out of control.
We are going to fight back and we are going
to win.

Speaker 3 (13:22):
And the Justice Department is fighting back by filing an
ethics complaint accusing Judge Boseburg of misconduct for a comment
he allegedly made at a private meeting of judges. My
guest is constitutional law expert David super, a professor at
Georgetown Law David why is the administration focusing so much

(13:42):
on Judge Boseburg?

Speaker 4 (13:45):
Cases are assigned to district judges randomly. Judge Boseberg have
the misfortune of drawing the first case involving the Trump
administration's bizarre application of the Alien Enemies Act in a
non wartime situation, and he did what any competent judge
would do, which is declared illegal.

Speaker 3 (14:06):
The complaint focuses on a March session of the Judicial
Conference of the United States, a panel of judges led
by Chief Justice John Roberts. The Justice Department accused Boseburg
of raising quote concerns that the administration would disregard rulings
of federal courts, leading to a constitutional crisis, and said

(14:27):
his comments violated a section of the Code of Conduct
for federal judges, which says that they should not make
any public comment on the merits of a matter pending
or impending in any court. If he did, in fact
say this, is it at a bounds for a judge
at a meeting that's supposed to be private to say
something like that.

Speaker 4 (14:48):
No, of course not. This complaint doesn't pass the last test.
It's not a public statement. It's a statement with only
judges present. I would love to attend meetings to his
judicial conference, but I'm never invited. I'm sure you would too,
it's a private meeting. By this reasoning someone should bring
a complaint against Justice Alito or indicating that he thought

(15:10):
Rovy Waite should be overruled and circulating his draft opinion
in Bobbs, which later became public. Judge Bozburg is not
responsible for other people leaking memos about things he said
in private meetings among judges any more than Justice Alito
would be responsible for the leak of his draft opinion
that he shared with other justices.

Speaker 3 (15:31):
In the complaint, the Justice Department also says that Judge
Boseburg had no basis for saying that because the Trump
administration has always complied with court orders, but the administration
violated Boseberg's verbal order in this very case.

Speaker 4 (15:46):
Judge Bosberg's role on the judicial conferences as a representative
of district judges in the District of Columbia, he is
responsible for reporting what judges on his court are concerned,
and it would be at their election of his duty
if he didn't report concerns that they had. Judges on

(16:07):
his court had found the administration to be out of
compliance with a number of court orders. By administration officials,
certainly including the Vice president, arguably including the president, had
mused about whether they would honor court orders on various topics,
even Supreme Court orders, certainly orders of district courts, and

(16:31):
the question of how to deal with the administration violating
court orders had already been up and down to the
Supreme Court by that point. Obviously it was something they
were concerned about. He was not, as we've been told,
expressing his own views, but rather the views of other
judges on his bench. I'm sure at other times the

(16:53):
chief Judge of the District of Columbia may have reported
that they feel inundated with bentonl cases, where they feel
inundated with crystal meth cases. This is a place where
judges talk about the challenges of maintaining the judiciary. He
was doing exactly what he was supposed to be doing.

Speaker 3 (17:12):
Is it concerning that apparently a memo of the meeting
was leaked to the conservative website The Federalist.

Speaker 4 (17:20):
Well, the Judicial Conference is representing judges and business about it.
So memos of what happened at this meeting do get
circulated to judges. President Trump has made a point of
appointing members of the Federalist Society to the Judiciary. So
many Federalist Society members received this memo, and one of

(17:41):
them apparently chose to leak it to the Federalist.

Speaker 3 (17:44):
And this comment that Boseberg allegedly made is presented in
isolation in the complaint. You don't know what conversations preceded
it and what conversations followed it. There's no context it.

Speaker 4 (18:00):
Is, and they describe his comments as being uncalled for,
but they don't give us any context to suggest that
they weren't. And again, Judge Bosberg's role there was to
bring to the judicial conference concerns by judges on his court,
and judges reacting negatively to administration officials and Republican senators

(18:23):
suggesting that they disregard court orders would be an obvious
thing to discuss. He doesn't indicate what the point of
the agenda was, what prompted this, or what anyone else
said afterwards. Moreover, the Code of Judicial Conduct prohibits comments
on the merits of the case. This is not a

(18:43):
merits issue. This is an issue about what does the
court do when it has decided the merits and one
of the parties doesn't comply.

Speaker 3 (18:52):
The Justice Department also complains about his handling of the
case involving the alleged Venezuelan gang members, saying he rushed
the government through complex litigation, sometimes giving the Trump administration
less than forty eight hours to respond.

Speaker 4 (19:08):
Well, the rushing was by the administration. The administration could
have agreed to suspend flights until this matter was litigated,
and the parties could have submitted their papers in due time.
The administration was in physical control of all of these people.
It had no need to send them to Alvalvadore. It

(19:29):
chose to do it in a great hurry, and that
led to a quick response from Judge Boseburg. Many judges
would not have given the administration any operatity to respond
at all when enjoining a crisis that was entirely of
that party's making. Judge Boseburg bent over backwards to be
considerate of the administration and to accommodate the schedule, which

(19:52):
they insisted was very urgent, even though they never explained why.

Speaker 3 (19:57):
If you have a problem with the judge handling your case,
does a litigan file a misconduct complaint or wait for
the appeal.

Speaker 4 (20:06):
If what the judge does is sufficiently egregious, you can
file a misconduct point it's not out now then appropriate.
But what judge bosover here did doesn't mean any of
the requirements of an improper act. It wasn't public, it
wasn't on the merits, and wasn't prejudicial. So the normal

(20:27):
procedure would be either to appeal or in some instances,
to move for the judge to be recused. But the
standard even for recusal and for appeal is much much
higher than this, and the standard for judicial misconduct is
higher still.

Speaker 3 (20:43):
You said, doesn't pass the left test? What do you
expect to happen here?

Speaker 4 (20:47):
In a normal world, the Chief Judge of the DC
Circuit would dismiss this outright, because this comes from the
Justice Department and from an administration that is been exceedingly
vindictive and is cross lines that none of its predecessors
have in criticizing sitting judges. The chief Judge may refer

(21:10):
it to a panel, but those judges would then dismiss it.

Speaker 3 (21:13):
We've talked before about this. This is the latest in
a string of confrontations of the Trump administration with the
federal courts. They filed a misconduct complaint in February against
another DC federal judge, Anna Reyes, accusing her of hostile
and egregious misconduct for her sharp questioning of government lawyers
in the case on the Pentagon's attempts to ban transgender

(21:35):
people from military service. And last month they sued every
judge in Maryland over a standing order that blocked the
immediate deportation of migrants, challenging their removal for two days.
Is there a strategy.

Speaker 4 (21:48):
Here well, certainly, the strategies to intimidate federal judges, the
public criticisms of them, which have led reportedly to spikes
and death threats, is part of this. The suggestion that
they don't have to follow them, the characterization of them
as radical leftists. Some of the judges they've called radical
leftists were appointed by Ronald Reagan. But no mind though,

(22:11):
this is all part of a broader strategy to delegitimate
the courts, to have people not believe that the courts
can determine the law, and to have people do entirely
what the government says. That's the past of the dictatorship.

Speaker 3 (22:25):
How unusual is it for the Justice Department to file
a complaint against a federal judge In the past, under
other presidents, have justice departments taken this course.

Speaker 4 (22:37):
Almost never, and a good example of that is the
behavior of Judge Cannon in one of President Trump's criminal cases.
A number of her rulings were very strange, sometimes self
initiated rulings in favor of mister Trump, and the Justice Department,
though it had plenty of grounds, didn't even move to

(22:59):
recuse her less file and judicial misconduct complaint. The ordinary
views of the Justice Department has a strong interest in
public respect for the judiciary and doesn't want to undermine it.
This administration obviously feels differently.

Speaker 3 (23:12):
And tell us a little about Judge Boseberg's reputation.

Speaker 4 (23:16):
Judge Boseburg's an extremely thorough, extremely smart judge. He basically
gives you what you get. If you give him a
serious argument, he'll either ruin your favor or give you
a careful, anapolitical reason why he won't. If you give
him a silly argument, he will say so and not
dignify it with a lot of extra words. He's very

(23:36):
hard working, very attentive to the law, He's ruled in
the Trump administration's favor on a number of matters, including
involving the Alien Enemies Act, because he felt the law
was in their favor. He's not a partisan.

Speaker 3 (23:50):
And by the way, the DC Appellate Court has not
yet addressed the complaint against Judge Ray As for her
sharp questioning of government lawyers, I.

Speaker 4 (24:00):
Will point out that if the standard was that lawyers
shouldn't be sharply questioned, there are only about two judges
I ever practiced in front of that I couldn't have
filed misconduct complaints against the judge actually drew the most
when I was a practice was JOHNS. Bullham, And I
don't believe he ever asked me a question that wasn't sharp.
I don't think he ever asked me, how are you counselor?
I think he starred with his urb questern then never finished.

(24:22):
I want a bunch of cases in front of him.
But everything, a lot of his questions was sharp.

Speaker 3 (24:27):
Well, you have to have a tough skin if you're
going to be a litigator. Always a pleasure, David. That's
Professor David super of Georgetown Law. Coming up next, challenges
to Elena Hobba's authority over the US Attorney's office in
New Jersey leads to chaos in the federal criminal courts there.
I'm June Grosso. When you're listening to Bloomberg, you may

(24:48):
be familiar with Alena Habba 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. This is wrong, but we are in the
state of New York. We are in a New York jury, and.

Speaker 1 (25:05):
That is why we are seeing these witch.

Speaker 3 (25:07):
Hunts, these hoaxes, as he calls.

Speaker 2 (25:09):
Them, and this is another one of them. Don't get
it twisted.

Speaker 3 (25:13):
We are seeing a violation of our justice system. I
was yelled at, and I've had a judge who's unhinged,
slimming a table.

Speaker 1 (25:21):
Let me be very clear. I don't tolerate that in
my life.

Speaker 2 (25:24):
I'm not going to tolerate it here.

Speaker 3 (25:25):
Trump appointed Haba, who's never worked as a prosecutor, as
interim US Attorney for New Jersey in March, but both
the state's Democratic senators opposed her nomination and the state's
judges refused to appoint her as the US Attorney when
her one hundred and twenty day interim term ran out. Now,
the Trump administration's procedural maneuvering to keep her in charge

(25:49):
of that office has led to chaos in New Jersey's
federal criminal courts, basically paralyzing criminal cases. Judges are pausing
proceedings except for bail hearings because of challenges by defendants
who argue that Haba doesn't legally hold the job. My
guest is Stanford Law professor and Joseph O'Connell, and will

(26:11):
you start by explaining the law around interim US attorney appointments?

Speaker 5 (26:17):
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

(26:41):
first way to get a temporary US attorney is through
twenty eight Usc. Five 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 the expiration of that

(27:01):
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

(27:21):
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.

Speaker 3 (27:45):
So the one hundred and twenty days was running out
and New Jersey federal judges chose Habba'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 5 (28:05):
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. She cannot fire someone who is picked by
the court. And why is that because under constitutional law,
the Supreme Court has held in multiple cases that the

(28:26):
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 of powers. So the Office of
Legal Counsel has long held that the president and only

(28:49):
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 scrif full about it because initially it
seemed as if Attorney General Barr was pushing him out,
and finally the president got involved and Jeff Berman.

Speaker 3 (29:08):
Left, So here the president could fire Grace with no problem.

Speaker 5 (29:12):
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

(29:36):
the court appointed 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. I'm 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 argue

(29:57):
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 3 (30:04):
So the Trump administration then with Drew Hobba's appointment to
be the US Attorney for New Jersey, 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 5 (30:25):
That's right. So there are these three pools or categories,
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 3 (30:45):
At the end of her two hundred and ten days.
Can the Trump administration reappoint her.

Speaker 5 (30:50):
No, Well, it's contested under five p. Forty six. The
administration and previous administrations have done successive one hundred and
twenty day appointments. 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. Jimmy piro So, I think, although Congress did

(31:14):
not intend 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

(31:35):
the Vacancies Act. 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
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

(31:57):
pending of someone else, she can continue to serve 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.

Speaker 3 (32:15):
So that could actually end up being a lot of time,
especially with the hold on US Attorney nominees in the
Senate since May. And is there anything else that Trump
administration can do to nominate her again to be US Attorney.

Speaker 5 (32:31):
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.

(32:55):
President Trump decides, actually he wants Espert 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

(33:17):
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,
if they really want her in and their sufficient support

(33:40):
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 3 (34:00):
But there's this century old Senate custom called the blue slip,
and both New Jersey Democratic senators are against her nominations,
so they won't advance the blue slip right.

Speaker 5 (34:12):
Clearly, Mark Esper had a lot more support, and not
just among Republicans.

Speaker 3 (34:17):
As far as the standstill in federal criminal cases in
New Jersey, the first defendant who's fighting his prosecution on
the grounds that Haba is no longer an authorized US
attorney was to be tried on August fourth on drug
trafficking and firearms related charges, and the chief Judge of

(34:38):
the Third Circuit has reassigned the case to a judge
in Pennsylvania. Does that indicate that the Third Circuit's chief
judge thinks there's a problem here too, Unlike.

Speaker 6 (34:49):
When litigant speak a stay or Lamaran junction or ro
and the court has to assess the likelihood of the merit.
I don't think that's quite this thing here. The way
I'm reading this is that this is not a frivolous argument,
and they want to figure it out before they have
any issues with sort of conflict or perceptions of bias,

(35:13):
because after all, it was the District Court of New
Jersey who chose ms grace. I'm not reading into that
action that they think that this litigation is going to succeed,
just that that 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

(35:35):
just think it's an uphill battle against the government on
these arguments. All of this is creating chaos in New Jersey.
I mean right now, it's essentially frozen, it's going to
slow step down, and it's going to change workload. If
all of that were in New Jersey then has to
be heard by district court judges in other districts. It's

(35:56):
just a mess.

Speaker 3 (35:57):
The administration is using a similar playbook for US attorney's
offices in Los Angeles, Las Vegas and earlier this month
in Albody, New York. What's the downside to this maneuvering.

Speaker 6 (36:10):
I do think that these moves by the Trump administrations
are legal, even if there are possible arguments on the
other side. But the chaotic way it's being carried out
is shining public attention to the administration's choices, to these
temporary picks who normally don't get much attention at all.

(36:32):
So even if they're upheld as a legal matter. There's
now so much more oversight, and they're going to be
consequences for the Trump administration later on.

Speaker 3 (36:43):
And I have to say, this is such a confusing
legal area.

Speaker 5 (36:48):
There's a grave 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
asked the lawyer, why don't you just go out to
the public and say the Vacancies Act has been violated?
And the lawyer looks at her and says, because then

(37:09):
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 statue.

Speaker 3 (37:18):
But you certainly know it's ins and outs. Thanks so much,
And that's Stanford Law professor and Joseph O'Connell, 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

(37:38):
Slash Law, and remember to tune into The Bloomberg Law Show,
every weeknight at ten pm Wall Street Time. I'm June
Grosso and you're listening to Bloomberg