How was your long holiday weekend? Nice? A good time to chill with friends and family, right?
Well, what if the day before your four-day vacation kicked off, you found out that you and your boss are on the hook for close to $1 million in sanctions? And what if, when you came back after that long weekend, you learned that you’re not legally eligible to be in the job that you’ve known you weren’t legally eligible to be in for months?
That’s what happened to Alina Habba.
Alina Habba speaks to the press at the White House on March 24.
President Donald Trump tapped Habba as the acting U.S. attorney for New Jersey, knowing full well that the former parking lot lawyer was not going to be confirmed by the Senate despite having been one of Trump’s dozens of personal attorneys.
Habba had the distinction of being the first—but by no means the last—Trump nominee to be ruled ineligible to serve in her job by a lower court. And now she also has the distinction of being the first Trump nominee to have a federal appellate court basically say, “Did the lower court stutter?”
A three-judge panel of the Third Circuit Court of Appeals showed no love for the government’s argument that, if Trump wants Habba to be a U.S attorney, then he gets to make her a U.S. attorney, laws be damned.
Writing for the panel in affirming the lower court’s ruling, Judge D. Michael Fisher, a George W. Bush appointee, was a veritable master of understatement.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” he ruled.
Habba really should have seen the writing on the wall after the appellate oral arguments in the case, which did not go well.
The federal courts should not have to painstakingly explain to Habba, Trump, and Attorney General Pam Bondi—all of whom bear equal responsibility for this mess—that, yes, the Federal Vacancies Reform Act is a law that they must follow. But it did anyway:
Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely. This view is so broad that it bypasses the constitutional PAS [appointment and confirmation] process entirely. It also essentially eliminates the requirements of the FVRA and the U.S. Attorney-specific statute.
Bondi learned last week that her One Weird Trick to propping up failed appointees is also not going to be a solution here. Bondi tried to save Lindsey Halligan—who stumbled into serving as acting U.S. attorney for the Eastern District of Virginia because of her willingness to do sham prosecutions for Trump—by backdating an appointment naming her as a special counsel instead.
Attorney General Pam Bondi
That resulted not just in Halligan being told she was illegally in her job but also in the tossing out of her two—and only—criminal cases.
So Habba’s out of a government job. At least she can take her incredible talents and high success rate back to the private sector where she … whoops. The private sector is where she was just found by a different federal court to still owe nearly $1 million in sanctions for Trump’s unhinged RICO lawsuit against Hillary Clinton and more than two dozen others.
Suffice it to say that the lower court called it a “completely frivolous” lawsuit and did not buy the argument that Clinton conspired with former FBI Director James Comey to direct a Trump prosecution, among a host of other nonsense.
In affirming the lower court, the 11th Circuit Court of Appeals agreed that Trump’s attorneys—looking at you, Habba—filed frivolous pleadings and that the court “did not clearly err in finding that Trump’s attorneys filed the amended complaint in bad faith.”
A cartoon by Clay Bennett.
“Trump’s attorneys give us no reason to conclude the district court clearly erred in that finding,” it found.
So neither Trump nor Habba is out from under the nearly $1 million worth of sanctions imposed by the lower court, meaning they have to pay attorney fees to all of the defendants. And fun fact: the largest chunk goes to Clinton, at close to $172,000.
Since Habba represented him in her personal capacity in that lawsuit, she’s on the hook along with Trump, who brought the lawsuit in his personal capacity. Trump might somehow find a way to make an immunity argument that Supreme Court Chief Justice John Roberts might buy, but it’s not likely to be extended to Habba.
Better get back to being a parking lot lawyer, Alina. You’ll need to stack some cash to pay off that fine—and you know full well that Trump isn’t going to help.
