Third Circuit Denies Petition for Rehearing En Banc of Alina Habba Disqualification as U.S. Attorney

Could this case end up in the Supreme Court?

Back in December, the U.S. Court of Appeals for the Third Circuit affirmed a district court order concluding that Alina Habba was not lawfully acting as the U.S. Attorney for the District of New Jersey.

Yesterday, the Third Circuit denied a petition for rehearing en banc. Of the twelve judges eligible to participate in the en banc vote, three noted their dissent from the order (Judges Phipps, Matey, and Mascott), one of which (Mascott) "will file a separate dissent sur rehearing on a later date."

The question now is whether the Administration will seek to bring this case to the Supreme Court.

My co-blogger Paul Cassell offered commentary on the Third Circuit's "curious" initial decision here.

Comments

[jb]

I was surprised to learn that Paul Clement was blogging on the Volokh Conspiracy, but seems to be a typo since the linked entry is by Paul Cassell.

P.S. Having Paul Clement as a guest blogger would be fantastic!

[Tallman]

The more interesting question is: what is the appropriate remedy given the substantial public interests also involved. IIRC, in one of these cases, the judge dismissed the case under circumstances where the SoL had expired.

[John F. Carr]

Because she resigned the only issue remaining to be resolved is the validity of her actions while acting as US Attorney.

[loki13]

I would agree.

That said, in fairness I believe that the DOJ did state that there was no mootness because Habba wanted to go back into the position, and would be reappointed if they won the appeal.

I express no opinion as to the legal merits of such a declaration.

[windycityattorney]

So the DOJ loses again on this issue of trying to install their preferred picks as US Attys - clearly attempting to sidestep advice and consent (of the Senate).

Of all the various separation of powers issues going on - this seems kinda straightforward to me. There are statutes in place (vacancies reform act) there are constitutional provisions in place - - at what point does DOJ push too far? Or have they already tested the patience of the federal bench? The Halligan thing in Virginia fizzled out when one of the fed judges went scorched earth after the DOJ's brief challenging the ruling took a nasty perhaps even unprofessional tone.

But I believe there were at least 3 separate appointments ruled invalid now. How many times does DOJ have to lose in different districts before they stop making the same losing argument? Or repeating the same failed attempts? I don't know what a possible remedy is - other than DOJ losing more credibility before the federal bench? Is there any credibility left to lose?

I get the argument that they can keep appealing and attempt to run out clocks but assuming DOJ ultimately loses on the law; a void appointment would potentially have retroactive effects back to the date the appointment became invalid. Inviting quite a mess of litigation to clean it all up. So, that leaves the question of why? Why the self inflicted wounds. Prove some large point?

[loki13]

"But I believe there were at least 3 separate appointments ruled invalid now. "

The Trump Fake USA Tour has made five (6) stops so far-
Chattah
Habba
Halligan
Sarcone
Essayli
Ellison

And no, there isn't much credibility left to lose. Well ... at this point, most courts are treating the DOJ as "just another litigant." I suppose they can start applying "the presumption of irregularity and lying liars," which ... the probably should.

[windycityattorney]

Thanks for the updated list. I guess I could have googled that prior to posting.

I do suppose losing the presumption of regularity would fall generally under 'losing all credibility with the federal bench.' And while the mess of cleaning up after these particular individuals will resolve itself in time... the loss of credibility could linger.

Judges sit for life and their memories are long.

Given all the other issues going on at DOJ - seems counter productive at best. But hey. Pam Bondi and Todd Blanche know best. (heavy sarcasm)

[Tallman]

Arguably, b/c the Democrats are using the advice and consent clause to prevent the duly elected(!) President from performing his duties. That is, there is no specific issue with Ms. Habba; they're just refusing to confirm anyone. #Our Democracy

[loki13]

Um, that's total BS.

First, there are real issues with Habba. She isn't qualified to be a USA.

Second, it's not the Senate's fault. For example, in the ED Va., Siebert was a hardcore conservative. He was incredibly qualified. He was recommended by Youngkin (the Republican governor) and had the backing of the Senate and the judiciary. He was advanced and was expected to get the full Senate backing.

But because he had integrity and didn't think that there was a case against Comes and Jamey, he was forced out and Halligan was put in.

The issues Trump has aren't with putting in reliable conservatives. It's when he wants to put in unqualified loyalists. The Senate is supposed to act as a check on that- it's in the Federalist (you can read it).

And we see the issues play out over and over again as the DOJ has lost its credibility with the federal judiciary.

This isn't a Senate issue; it's a Trump issue.

What, should Garland just have been appointed "interim" supreme court justice since the Senate prevented the President from performing his duties? This is not a monarchy, and Trump doesn't get to place his cronies into the USA positions unchecked.

[windycityattorney]

Plus, in New Jersey, the judges tried to put in the original 1st assistant per the statute and in response the DOJ fired her. They could have re-assigned her or done something less cruel. Just to name Habba to first assistant in contravention of the statute.

Its bizarre. I don't know how long that original first asst worked for the feds but straight up firing her to score some larger political point or whatever the plan was is pretty ridiculous to me. It just comes off as petty and childish.

[SRG2]

Arguably, b/c the Founding Fathers saw fit to put in an advice and consent clause, the Democrats were upholding constitutional principles and those arguing against what the Democrats did are opposed to the Constitution.

[Michael Resanovic]

Or is it Trump that is trying to prevent the... wait for it... duly elected Senate(!) from performing its duties?

[David Nieporent]

a void appointment would potentially have retroactive effects back to the date the appointment became invalid.

Remember that in most cases the USAO's actions are done by an AUSA, not the USA him- or herself. So ruling such an appointment invalid would not have a great deal of effect. It's such a big deal in the Comey case because they couldn't find any real prosecutor to handle the case and so Halligan flew solo, and the statute of limitations expired.

[loki13]

wrong thread

[SRG2]

Yup

[SRG2]

Oddly, this may all be laid at Thomas's feet. In an SC case - I forget which - he irrelevantly wrote something questioning the legality of Jack Smith's appointment. Judge Cannon took the hint - and I wouldn't have been surprised if Thomas or a cut-out had informed her of what he'd said - and kicked Smith out. That may have given the Democrats the idea of using the same tactic.

[David Nieporent]

"The Democrats" aren't using any such tactic. Individual defendants are.

[SRG2]

Fair enough - my point was more about the originator of the tactic.

[JoeFromtheBronx]

Even many Trump supporters find this embarrassing, at best, but you take the bitter with the sweet when supporting Trump 2.0.

[Darth Buckeye]

On to Johnny and the Supremes.