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.