YES!! COURT GIVES GLORIOUS 130-PAGE SPANKING TO THE ADMINISTRATION!
(Thanks to follower Barb Cohan-Saavedra for bringing this to my attention!)
You may not have heard of Raheel Naviwala, nor Daniel Torres, but you’ll *love* the big spanking that District Court Judge Matthew Brann, of the Middle District of Pennsylvania, just gave the administration on their behalf in this 130-page opinion (included for Notes from the Front members).
And you’ve *definitely* heard of whose departure precipitated this smack-down: once-upon-a-time Assistant U.S. Attorney Alina Habba.
As you may recall, this administration in general, and Pam Bondi in particula… strike that… also this administration in particular… is fond of appointing people to positions that *require* the advice and consent of Congress. Not “Run it by Congress.” Not “Send Congress a text message letting them know you’ve done it.” And definitely NOT “Getting Congressional consent is optional.”
The advice and CONSENT of Congress.
It’s right in the Constitution. And as if a finer point needed to be put on it, it’s *also* codified in Federal law in the United States Attorney statute, 28 U.S.C. §541.104 which says, and I quote, “The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.”
Pretty darn clear, eh?
Of course, it’s *so* clear that the only inference which can be drawn by this administration’s repeated violation of it is that it is a willful violation.
Hanlon’s razor says “Never attribute to malice that which is adequately explained by stupidity.”
Mitchell’s corollary to Hanlon’s razor is “Repeated acts originally attributed to stupidity, once pointed out, can be attributed to malice.”
Back to Habba’s departure triggering this: you see, after the Court ruled that anything that Habba had done was essentially void, because she had been appointed illegally, she resigned.
And Bondi *immediately* illegally appointed three new Assistant U.S. Attorneys, without the advice, let alone the consent, of Congress.
Here’s a taste of the case and the opinion; as you read through this don’t be confused by who are the “defendants”. This is an appeal of criminal prosecutions against Naviwala and Torres – they are saying that their criminal cases should be thrown out because Habba brought the prosecutions and she had no authority to do so because she was illegally appointed.
“The Government explicitly concedes that “[t]he Rube Goldberg-style delegation mechanism employed” here is not necessary to keep the office running. At the time of oral argument, at least three undisputedly legal methods were immediately available to fill the United States Attorney’s position and resolve this controversy. First and second, two paths under the Federal Vacancies Reform Act permit the President to designate an individual with specific qualifications to perform the United States Attorney’s functions and duties as long as time remains… And third, the Judges of the District of New Jersey may still appoint a United States Attorney to serve indefinitely until a nominee is confirmed… An appointment under any of these provisions would give the Government the power to move prosecutions ahead and ratify past actions that have not yet been invalidated. Additionally, the President could at any time fill the office by nominating someone to be confirmed by the Senate. The Government acknowledges that these are viable methods.
With all these options remaining, why does the fate of thousands of criminal prosecutions in this District potentially rest on the legitimacy of an unprecedented and byzantine leadership structure? The Government tells us: the President doesn’t like that he cannot simply appoint whomever he wants.”
Well, as you might imagine, Judge Brann is having none of that.
“I am not fooled by the Government’s superficial arguments. The triumvirate is not exercising a distinct delegation of the Attorney General’s authority to oversee litigation. That assertion is nothing more than a rhetorical smokescreen, invented to serve this litigation, and carrying absolutely no functional effect.”
And:
“Recognizing the novelty of these legal questions, I believe that a stay of this decision is appropriate to ensure a speedy appeal. However, my reasoning makes clear that a stay cannot validate an unlawful appointment. If the Government chooses to leave the triumvirate in place, it does so at its own risk.”
“At its own risk.”
BOOM!
Notes from the Front members: The 130-page opinion is in your inbox.
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https://annepmitchell.substack.com/p/yes-court-gives-glorious-130-page
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