Bulwark Takes - Alina Habba's Appointment Ruled Unlawful (w/ Leah Litman)

Episode Date: December 2, 2025

Andrew Egger is joined by law professor and constitutional law expert Leah Litman to discuss why the court rejected Habba’s appointment, how it fits into Trump’s larger strategy to pack DOJ offices with loyalists, and what it could mean if the cases reach the Supreme Court. Exclusive $35 off Carver Mat at https://on.auraframes.com/BULWARKTAKES. Promo Code BULWARKTAKES

Hey, guys. It's Andrew Eger with the bulwark. Donald Trump has been trying a bunch of different kind of novel, wacky techniques and procedures to get the personnel that he wants, prosecuting the cases that he wants to see prosecuted at a bunch of different federal offices around the country. He's been running into a lot of different trouble with these appointments, particularly in the last few weeks. Just a couple weeks ago, we saw Lindsey Halligan in the East District of Virginia get thrown out with the judge saying that her appointment to that post was on an interim basis was not lawful. We now have new news just today up in New Jersey, where another one of Donald Trump's pretty loyalist appointments, Alina Haba, who he tried to get installed there on an interim basis and then keep around past the terms of her tenure. an appeals court ruled just today in agreement with what a lower court had said before, that her appointment, her continuing appointment there is not lawful. So bumping into a lot of trouble here.

Here to talk over all of this with me is University of Michigan law professor Leah Lippman. Leah, thanks for coming on to talk about this today. Thanks for having me. I guess it would not really be accurate to describe this as a surprise. We were sort of expecting that this is the way that this appellate court would rule on on the Alina Haba case, they seem like they have been kind of out over their skis on this one for a while. But what struck you as interesting just off the top in what the appeals court had to say today? Yeah. So one is just kind of a, why are we even here? And a second was the

substance of the opinion. So on the why are we even here, I think it's important to step back and just acknowledge, you know, the reason why the president is trying all of these kind of squirly methods of appointing people is he wants people to exercise power that no legitimate federal official would. Like, there's a reason why people who are confirmed by the Senate or career civil servants in these prosecutor's offices are unwilling to bring the charges that Alina Haba has or that Lindsay Halligan has. And, like, that's why we're here. I think it's just like an important background note to keep in mind. And then second is this opinion is highly technical and really in the weeds. And it uses a method of interpretation, textualism that I think

is designed to cater to or appeal to the Republican appointees on the Supreme Court because I think the administration is likely to try to challenge this ruling, potentially the Halligan one as well in that court where they've had more success than they have in the lower federal courts. But here, this Third Circuit opinion, as well as frankly the opinion in the Halligan case are really written in a register that adopts the Republican appointees, like preferred method of interpretation, cites many of their decisions, you know, that they wrote as justices or that they wrote when they were serving in the Department of Justice. So it's an opinion that knows its audience.

Yeah, yeah. So just to back up a little bit about how we got to this point. Alina Haba, Trump wants her to be the U.S. attorney for New Jersey. Obviously, that is a Senate confirmed position. She has run into some trouble because neither of the Democratic senators from New Jersey want to confirm her to that post. So there is, you know, a big open question as to whether she would be able to kind of according to the normal norms of the Senate that would kind of be a non-starter. So what Trump initially tried to do was, was first of all, he appointed her in sort of an interim way and correct me if I'm getting any of these things technically incorrect. In an interim way with basically a 120-day clock.

And then when that clock ran out, it was supposed to redound to a different group, to basically the judges in that district themselves to either keep her on or to pick somebody else. And they opted to pick somebody else for pretty obvious reasons because they, like all of us, sort of judged Alina Haba to be basically a political hitman in that role as acting a U.S. attorney there. Already a few months ago, you know, there was going to be a problem here because the Justice Department tried very hard. And it's weird because this was all sort of like pre-Lenzie Halligan. You mentioned her a bit ago. This was kind of like the maiden voyage of this strategy or whatever. The Justice Department tried to move heaven and earth, right, to keep her on. They fired the person from the office entirely who those judges had opted to make the new acting U.S. attorney there.

and then tried to kind of shoehorn Haba back in. That all fell apart very quickly, right? I mean, it's like, again, like this is just a confirmation at the appellate level of this, of this lower court's decision. So what's going on right now, like in that U.S. Attorney's Office in New Jersey? I mean, like, I'm sure things are just sort of insane at just sort of a baseline. But like what is like sort of normal procedure look like when there's no clear. sense of who is going to come out on top as far as who's running the place is concerned? I mean, there is no normal procedure. And I think this is why, you know, it is kind of a fool's

errand for courts to be applying, you know, the so-called presumption of regularity to things that the Trump administration is doing when they have literal offices, you know, U.S. attorney's offices that are in charge of literally prosecuting people. And you don't know who is running those offices. Like, you do literally not know who's in charge, who has a legal authority to actually make these decisions. So what actually is going on? I mean, on some level, who knows? And, you know, at least in these cases, there are multiple people from the U.S. attorney's office on different criminal law documents from indictments or briefs. And so what that means is, you know, Alina Haba might be disqualified from participating in these cases, but at least

in those cases where other people who are part of that attorney's office are willing to sign the legal document or, you know, help the criminal case forward, those cases aren't going to disappear entirely, unlike a case where only Alina Haba was willing to, you know, seek an indictment or only Alina Haba was willing to file a brief. So on some level, like, the chaos here is maybe a little bit less than it is in the Eastern District of Virginia, you know, where Lindsay Halligan is doing some things all on her own. And she wasn't lawfully appointed, at least here in this particular case, you are dealing with an indictment where other people from this U.S. Attorney's Office appeared. And because they have legal authority, you know, to exercise the powers of the U.S. Attorney Office,

it doesn't kind of nullify absolutely everything Alina Haba has her name on. Yeah. Let's let me drill down a little bit on, on that because obviously the, the, the even more sort of newsy and remarkable, you know, kind of legal spotlight has been. then on, as you say, the Eastern District of Virginia in recent weeks with those indictments against Letitia James and against James Comey, which were just thrown out for the exact reason that you described, because Lindsay Halligan, the interim U.S. attorney, or so-called interim U.S. attorney there, so appointed by Donald Trump, had been the only signatory to those indictments, and her appointment was thrown out again by a judge. Can you talk me through, like, does this news that we have today, this appellate ruling about Haba, does this have an impact on how the legal

stuff is likely to play out going forward for Halligan? Are they similar? Are they different? What's going on there? They are formally different in that the attorney general invoked different sources of authority, so different statutes, to try to appoint Haba as like a special attorney, you know, then she invoked when she was appointing Halligan, a special attorney. And so, you know, it doesn't completely resolve whether, you know, the alternative methods that the Attorney General invoked to try to give these people authority would be permissible in Halligan's case. However, the reasoning in this opinion quite clearly suggests that what A.G. Bondi did with Halligan is also illegitimate because the gist of the court's reasoning is basically that the methods that the AG and the president used were really efforts to evade the very, statutory limitations on who they can appoint to these positions, specifically U.S. attorneys. And that's also what Bondi and the president were trying to do when they attempted to ratify

Halligan's appointment and name her a special attorney rather than an interim U.S. attorney. They were trying to get around the various statutes that Congress wrote that limited the president's ability to make people U.S. attorneys, acting U.S. attorneys or interim U.S. after the Senate has effectively, you know, rejected their nomination and the courts of that district did as well. Borg takes a sponsor by Aura Frames. This holiday season, I have a lot more gifts on my list than good ideas. If you're looking for something with a real personal touch, I have it on good authority that Aura Frames will crush it. The producer who wrote this ad attest that the Aura Frames he gave his family were a hit last year.

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to get $35 off ORA's best-selling Carver Matt Frames, named number one by wirecutter. Use promo code bulwark takes at checkout. That's A-U-R-A-Frames.com promo code bulwark takes. This deal is exclusive to listeners and frames sell out very fast. So order yours now to get in time for the holidays. Support the show by mentioning us at checkout. Terms and conditions apply. It has seemed to me, and again, I'm very much just a layman here, but just in following along with these cases, in reporting on these cases, I mean, at these lower court levels, some of these things have been pretty open and shut, right?

I mean, these are pretty transparent attempts to short circuit these statutes to basically, you know, take back the power from, say, a district court or, sorry, an assortment of district judges who have, according to these various statutes, the ability once that 120-day clock has run out to then, then it redounds to them to pick who's going to be the acting attorney going forward until the Senate manages to confirm somebody. If this does end up going to the Supreme Court and it does, you know, there's every indication that the White House wants to push it all the way there, you could see a world, at least it seems to me, in which they are assessing sort of a different thing. They're not assessing like, is the White House trying to get around

these laws? Well, yes, obviously. They might be assessing are these laws constitutional in the first place, right? And that is one one area in which we have seen the Supreme Court. court give this president quite a bit of latitude in terms of, you know, just asserting broader and broader executive powers. And you could see, you know, the White House making the argument, look, it shouldn't be up to these judges to pick my U.S. attorneys. It should be up to me to pick my U.S. attorneys. So you mentioned that this particular opinion today was written sort of in a hopefully Supreme Court, like pleasing way, but not to make you get out your crystal ball or anything. But how do you anticipate this particular Supreme Court sort of wading through some

of these arguments if it does, in fact, get up to that level? Sure. So it's a little bit difficult to game this out, in part because I think the only justice that has really written anything that tips their hand, even in the slightest, is Justice Thomas. And Justice Thomas has suggested that maybe laws that restrict, you know, who the president can appoint to these positions or restrict the president's authority in these respects might be unconstitutional. And so he's someone that we have some indication about where they might lean, but we don't have a lot of indication about where the other justices might be. And you're right that on some level, these statutes and the limitations they place on the attorney general and the president's ability to appoint people as prosecutors and to allow courts to select, you know, who actually exercises executive authority. They do seem to bump up against this unitary executive theory that the Supreme Court has. has really fixated on. And under that theory, the president exercises all of the executive power and therefore has to have near plenary authority over individuals within the executive branch.

The problem I think with applying that theory here is these individuals were just talking about interim U.S. attorneys. So there are individuals who are just supposed to be exercising this authority for a limited time period. And so as far as, you know, a limitations, on the president's authority, they shouldn't be so significant as to implicate, you know, even the court's capacious understanding of the unitary executive theory. And also, there's just a long history of these statutes actually limiting, you know, who can serve in these positions. And the Supreme Court has applied this statute. You know, this Third Circuit opinion cites, you know, an opinion that I believe was written by Justice Gorsuch in National Labor Relations.

Board versus Southwest General. And in that case, you don't have Justice Gorsuch indicating constitutional problems with a statute where Congress selects, you know, who is going to succeed to these offices. And so in that respect, you know, I would hope that there aren't five justices who all of a sudden want to go whole hog on the idea that Congress can place no limitations whatsoever on anyone, assuming any office within the executive branch, But we know at least one justice seems to be somewhat open to the idea. I mean, it really does seem like the White House has, in some respects, painted itself into a corner here where you could imagine a world where they went about this a little bit differently. They tried to, you know, rustle up some more lawyers and maybe in the mold of Bill Barr, you know, like the kinds of people who who tended to come through for Trump when he really needed them to last term with a few famous exceptions like when he tried to steal the president.

election. But, you know, guys who are sort of like sympathetic to his project, but who are not these sort of like utter hacks, right? I mean, just sort of these out and out sort of loyalists and attack dogs and these sorts of things. Because, you know, now that he has gone this route, now that he has gone so far to try to make the office in New Jersey run through Alina Haba or tried to make the office in the Eastern District of Virginia run through Lindsay Halligan, I mean, he's kind of like burned his boats when it comes to, you know, getting anybody to getting the Senate to help him get anybody through, getting, you know, these sort of channels of judges to help anybody through. So there really is a lot riding on this for Donald Trump as far as getting sort of

his like criminal justice retribution project, even off the starting blocks here. I mean, it's true, but this is also so much a self-inflicted wound. I mean, look at the people that he was able to get the Senate to confirm. Pete Heggseth. Amil Beauvais, to a lot of lifetime tenured position. RFK. I mean, my goodness, right, if you can get 50 votes and the vice president to sign off on those appointments, you can probably get all kinds of weirdos, right, into the U.S. Attorney's Office. You just picked, again, Lindsay Halligan, a former insurance lawyer, was zero prosecutorial experience. I mean, come on. And Alina Haba, you know, who was a TV personality, not a lawyer, really. And so, you know, it's really a self-inflicted wound on some level,

you know, also partially in Bondi's, you know, failure to kind of anticipate how some of these challenges would play out and a failure to kind of like cover her tracks and other respects by invoking other sources of authority to try to make some of these appointments. Yeah. Is the next stop for this stuff, the Supreme Court? I mean, is that basically the next thing we ought to be looking out for? Are there more sort of intermediary stuff? maybe for the Halligan case that will be still coming through. What's the kind of timetable that we should have our eye on for this stuff? Yeah.

So in the HABA case, the next stop is the Supreme Court. And, you know, the administration has, you know, 90 days to kind of make a decision about whether they want to go up to the Supreme Court. It's possible they will try to prompt the issue, right? Even further or more quickly by seeking a stay on the shadow docket. The Halligan case formally has to go to the Fourth Circuit before it goes up to the Supreme Court. But again, that court could act quite quickly on an emergency request for a stay.

And so these cases could get up to the Supreme Court in short order. All right. Well, we will keep watching all of it. I'm sure we'll be right back here for more developments as they trickle out, as they pour out, as they gush out, whatever is going to happen with these developments going forward. Leah Lippman, thank you for coming on to talk through some of this stuff with me. Thanks to you all out there for watching, for listening along in your cars, at your computers, on your TV and your kitchen. And however you do it, we appreciate you enjoying our content. Hope you head over to the bulwark.com to read the stuff we write.

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