LEILA FADEL, HOST:
For more on the appeals court ruling, we're joined by former federal prosecutor Elie Honig. He's also a legal analyst for CNN and the author of the book "When You Come At The King: Inside DOJ's Pursuit Of The President, From Nixon To Trump." Elie, good morning and welcome back to the program.
ELIE HONIG: Morning, Leila. Always happy to be with you.
FADEL: So as we just heard, there are lots of questions after this ruling. First off, what happens to Habba's cases?
HONIG: Good question. For now, the cases, the dozens or even hundreds that have been indicted during Habba's term in charge of the U.S. attorney's office in New Jersey, they do remain intact. One of the options that the court of appeals could've gone with is to say Habba is disqualified and all the indictments are thrown out. The court did not quite go that far. However, they said she is disqualified, but they said we do not need to dismiss those cases.
And interestingly, the court of appeals actually doesn't specify in its order why it doesn't take that extra step. I think, based on my experience, I could tell you we generally don't like to give alleged criminal defendants a windfall. We don't like to say, OK, all these people charged with guns and drugs and robbery, you get to go free because there was a technical error that had nothing to do with your actual guilt or innocence.
The other reason I think that this court did not dismiss all of those cases is there was a fallback. In New Jersey now, it turns out Alina Habba was not acting properly as U.S. attorney. But there was always some other proper AUSA - assistant U.S. attorney - prosecutor on the papers. That's in contrast to the Lindsey Halligan issue in the Eastern District of Virginia, in the Jim Comey and Letitia James cases where she was the only signatory. So when a court found she was acting improperly, there was no one left, hence the dismissal of the Comey and James indictments. A little bit of a difference there.
FADEL: OK, so the decision was unanimous from judges appointed by...
HONIG: Yes.
FADEL: ...President George W. Bush and Obama. Was there a particular passage of the decision that stuck out to you?
HONIG: Yeah, there were a couple. So, yeah, there were two Bush judges here and one Obama appointee, so not some sort of political screed either way. There's one passage where the judges go out of their way to talk about the importance of the U.S. attorney's offices. You know, so much of our focus when we talk about the Justice Department is on the bosses in D.C., the attorney general and the solicitor general. But I know from my own experience having served in one of the U.S. attorneys' offices in New York, that's where the real action is. That's where 99% of the prosecutions are. And the court goes out of its way to say these offices are vital, and the head of them, the U.S. attorney, is supposed to be appointed in accordance with certain specific rules.
There's another passage where I think the judges sort of pointedly note that the administration basically just panicked here, that they put in Habba. They didn't have a plan. When it turned out that her appointment probably violated the law, they started scrambling around looking for backdoors around this. And the court just said, that doesn't work. You only get to appoint - the president, under law, only gets to appoint a temporary replacement once for 120 days. That was done with Habba. After that, you don't get to serially reappoint the same person for 120 days, then another 120 days. Otherwise, the president could just keep doing that without ever having to go to the Senate for confirmation.
FADEL: Are there larger implications to the decision in this case here? I mean, it's very similar to the one in the Eastern District of Virginia, where Lindsey Halligan...
HONIG: Yeah.
FADEL: ...Was also disqualified. So do you expect this to be an example of how other courts will rule in other states where the Trump administration has tried to do the same thing?
HONIG: So this issue about the proper or improper, as it turns out, appointment of temporary U.S. attorneys...
FADEL: Yeah.
HONIG: ...Has arisen in four federal districts.
FADEL: OK.
HONIG: There's New Jersey and the Eastern District of Virginia, also the Central District of California, which is where Los Angeles is, and the District of Nevada. All four of those district court trial-level judges have said these appointments were improper for roughly the same reasons. Now, yesterday's opinion was the first one we got from a federal court of appeals. This one's the third circuit, which covers Pennsylvania, New Jersey and Delaware. So it's the highest-up decision we've seen yet, but again, reaching the same conclusion.
So we've now seen seven federal judges, four at the trial court level, three at the court of appeals level, all reached the same conclusion. But yes, all four of those U.S. attorneys' offices are in some degree of chaos and flux. Who exactly is in charge? What's the chain of command? Are the cases that those person supervised and signed in jeopardy? And I think we will continue to see this case work its way through the other circuit courts of appeals and potentially land at the U.S. Supreme Court.
FADEL: So you expect the administration to appeal?
HONIG: I would think so. I mean, this administration, and not unlike any other administration, has appealed all of its substantial losses. This is a major loss. We know the administration has a lot of stock in Alina Habba and feels loyal to her. So don't be surprised if today or tomorrow you see a motion for the Supreme Court to take a look.
FADEL: Elie Honig is a former federal prosecutor and a legal analyst for CNN. Thank you for your time.
HONIG: Thanks, Leila.
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