by
SAUL
LOEB/AFP
via
Getty
Images)
Alina
Habba’s
tenure
as
the
not-really-U.S.
Attorney
for
the
District
of
New
Jersey
reached
another
predictable
milestone
today
as
Judge
Matthew
Brann
disqualified
Habba
from
a
criminal
prosecution
on
the
grounds
that
she
doesn’t
actually
have
the
job
in
any
legal
sense.
Brann,
the
chief
judge
of
the
Middle
District
of
Pennsylvania,
heard
the
case
by
designation
since
all
the
judges
from
the
New
Jersey
District
already
chose
a
different
U.S.
Attorney.
Over
the
course
of
a
77-page
opinion,
the
judge
explained
that
Habba,
Trump’s
favorite
parking
garage
lawyer,
was
never
actually
the
U.S.
Attorney
in
the
first
place
and
has
been
unlawfully
squatting
in
the
office
since
July
1.
The
precise
date
that
Habba
transformed
into
a
proverbial
pumpkin
is
convoluted,
but
somewhere
between
the
beginning
and
end
of
July,
Habba’s
interim
appointment
came
to
an
end
while
her
formal
nomination
stalled
in
the
Senate.
Believing
the
conclusion
of
her
appointment
to
end
toward
the
end
of
July,
and
with
no
replacement
legally
appointed,
the
judges
of
the
district
of
New
Jersey
appointed
Desiree
Grace,
who
happened
to
be
Habba’s
assistant
at
the
time.
The
Trump
administration
initiated
a
series
of
Rube
Goldberg
staffing
gimmicks
in
a
bid
to
return
Habba
to
the
job.
Attorney
General
Pam
Bondi
promptly
fired
Grace
in
order
to
keep
Habba
in
the
job
despite
the
fact
that
this
(a)
had
zilch
to
do
with
Grace’s
legal
appointment
and
(b)
wouldn’t
return
Habba
to
the
job
even
if
it
did.
Since
Trump
had
nominated
Habba
for
the
permanent
job,
she
was
ineligible
under
the
Federal
Vacancies
Reform
Act
to
serve
as
Acting
U.S.
Attorney,
so
they
pulled
her
nomination.
But
only
after
naming
her
as
her
own
assistant
so
she
would
ascend
to
her
own
job
when
she
resigned
it
before
it
technically
expired,
meaning
there
would
be
no
vacancy
for
Grace
to
fill.
And,
for
good
measure,
Trump
purported
to
fire
Grace
again
—
this
time
from
the
U.S.
Attorney
appointment
that
the
administration
claims
never
even
happened.
Make
sense?
Untangling
the
factual
record,
Brann
did
find
one
error
on
the
part
of
the
Jersey
judges:
they
let
Habba
hang
around
illegally
for
too
long.
My
analysis
generally
proceeds
in
chronological
order.
First,
I
consider
whether
Ms.
Habba’s
tenure
as
Interim
United
States
Attorney
pursuant
to
28
U.S.C.
§
546,
which
began
on
March
28,
2025,
lawfully
continued
until
July
24,
2025,
when
she
purported
to
resign,
and
conclude
that
it
did
not.
As
I
interpret
the
law,
her
interim
appointment
ended
on
July
1,
2025—120
days
after
Attorney
General
Bondi
invoked
her
power
under
section
546(a)
by
appointing
Mr.
Giordano
Interim
United
States
Attorney
on
March
3,
2025.
Thus,
Ms.
Habba
was
not
lawfully
acting
as
the
United
States
Attorney
in
any
capacity
from
July
1,
2025
until
at
least
July
24,
2025.
Judge
Brann
—
who
despite
being
an
Obama
nominee
is
a
Republican
with
ties
to
the
Federalist
Society
and
the
NRA
—
delivered
an
ode
of
originalist
jurisprudence,
guiding
the
reader
through
the
“American
revolutionary
generation’s”
understanding
of
the
Appointments
Clause
and
their
concern
that
a
corrupt
idiot
might
use
the
White
House
to
give
patronage
jobs
to
unqualified
hacks.
A
prescient
bunch.
That
said,
Brann
doesn’t
end
up
ruling
on
constitutional
grounds
because
the
statutory
arguments
resolved
everything.
Continuing
by
noting
that
her
backdoor
effort
to
take
the
job
as
her
own
assistant
made
no
sense.
Running
through
the
Republican
judicial
greatest
hits,
Brann
takes
a
meticulously
textualist
stab
at
the
relevant
statutes
and
decided:
The
Government
protests
that
the
appointment
referred
to
in
section
546(c)’s
“chapeau”—“a
person
appointed”—should
carry
through
to
the
“appointment”
referred
to
section
546(c)(2).
But
that
reading
strains
the
text
for
three
reasons.
First,
it
transforms
the
indefinite
article
in
the
chapeau
into
a
definite
article
or
pronoun
that
is
unstated
in
section
546(c)(2),
rewriting
the
unmodified
term
“appointment”
as
“her
appointment”
or
“that
appointment.”
Second,
both
the
chapeau
and
subsection
(c)(2)
describe
an
appointment
“under
this
section.”
If
subsection
(c)(2)’s
bar
is
limited
to
the
appointment
described
in
(c),
then
restating
“under
this
section”
is
redundant
because
that
is
the
only
type
of
appointment
to
which
it
could
apply.
But
courts
should
give
“‘every
clause
and
word
of
a
statute’
.
.
.
meaning.”
Giving
meaning
to
the
second
use
of
“under
this
section”
indicates
that
that
subsection
(c)(2)
refers
more
broadly
to
any
appointment
“under
this
section.”
And
third,
the
chapeau
clearly
does
not
modify
the
other
barring
provision
in
section
546(c)(1),
which
is
indisputably
benchmarked
to
an
event
unrelated
to
any
specific
person’s
interim
appointment:
Senate
confirmation
of
the
President’s
nominee.
Had
Congress
wanted
the
120
day
clock
to
run
on
a
per-appointee
basis,
it
could
easily
have
written
the
statute
to
place
the
bar
of
subsection
(c)(2)
first
and
written
it
as
“the
expiration
of
120
days
after
her
appointment.”
Congress’s
choice
not
to
so
define
the
appointment
in
subsection
(c)(2)
is
meaningful,
and
the
Court
will
not
redraft
the
text.
As
to
the
theory
that
the
administration
could
just
appoint
Habba
as
an
assistant
to
succeed
to
the
job,
Brann
invokes
the
canons
of
construction
to
point
out
that
this
reading
would
“render
the
limits
in
subsections
(a)(2)
and
(a)(3)
surplusage
in
the
vast
majority
of
cases.”
The
government
tried
arguing,
“well,
what
if
Habba
is
just
a
special
prosecutor
with
the
powers
of
the
U.S.
Attorney”
and
Judge
Brann
strained
a
muscle
to
avoid
writing
“are
you
fucking
kidding
me
with
this
right
now?”
Alas,
the
ruling
was
a
Pyrrhic
victory
for
the
criminal
defendants.
Despite
determining
that
Habba
was
illegally
cosplaying
as
U.S.
Attorney
when
she
signed
the
indictment,
Brann
ruled
that
this
doesn’t
require
dismissing
the
charges
because
it’s
a
harmless
technical
deficiency
and
any
government
lawyer
willing
to
vouch
for
the
authenticity
of
the
document
will
do.
But
Habba
is
disqualified
from
the
case
and
any
attorney
prosecuting
the
case
under
her
direction
will
be
similarly
disqualified.
Thankfully,
she
can
still
go
on
Newsmax
to
complain
about
how
these
woke
Federalist
Society
judges
are
out
to
get
her.
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Patrice is
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Law
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Like
A
Lawyer.
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