In this episode of Unwritten Law, hosts Mark Chenoweth and John Vecchione unpack a 77-page district-court opinion from New Jersey that halted prosecutions because the U.S. Attorney was improperly installed under the Federal Vacancies Reform Act.

They walk through the 120-day interim limit, the “PAS officer” and 90-day service requirements, and the debate over whether a U.S. Attorney is a principal or inferior officer under the Appointments Clause—including the thorny question of courts appointing executive officials.

The discussion covers why the indictments weren’t tossed, what an appeal to the Third Circuit could look like, how Senate confirmation gridlock fuels these fights, and the broader stakes for separation of powers, prosecutorial accountability, and constitutional governance.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

Welcome to Unwritten Law. Mark Chenoweth here with John Vecchione. And John, we’ve got an interesting case out of the United States District Court for the District of New Jersey, United States of America v. Julien Giraud Jr. And the court has decided that the U.S. Attorney of New Jersey cannot prosecute the defendants in this case. What is this all about?

John Vecchione: The punitive U.S. Attorney of New Jersey, who is the famous Alina Habba, and Alina Habba has been an acting U.S. Attorney. And the fact pattern in this case, the timing pattern the judge goes through, is such a Rube Goldberg of time and appointing and then firing. But one of the interesting things in this, the defendants in criminal actions have said that the criminal actions are no good because the indictments came from Habba when she was not empowered to do them.

And all of them brouhaha is being sort of dusted up because of the Vacancies Act. And the Vacancies Act, as the judge describes, which I actually did not know some of the stuff he put in here about the Vacancies Act, but there has been a long 200-year fight between the Congress and the president on appointments and advice and consent. Right?

Mark Chenoweth: Right.

John Vecchione: So, he goes through that the president is trying to appoint without advice and consent, and they’re trying to makes sure they get advice and consent. So, all of these laws have been put in this way, which I knew vaguely but he kind of goes through it. And the real issue is whether or not she could be appointed as either acting or special, because they tried to make her a special appointment of the Attorney General Bondi.

But what’s interesting in this case to me is her original appointment was not a matter of public record. What the judge says is that she was appointed and nobody knew about it until this case of when she was and what had happened for some reason. Particularly, you’ve got Bondi, you’ve got Habba, they’re kind of famous. You’d think they would want to make a public statement about it, but it only came through here.

And the real nub of this is there’s a couple of things going on. Statutorily, of course, the Vacancies Act says a number of things that I don’t want to get into, but constitutionally courts are allowed to appoint sub-officers, inferior officers, under certain circumstances under the Constitution. And Congress, when it uses that power, has to be very clear. That’s kind of what the background says. But on the other hand, the president is supposed to run the executive office. So, this is the fight that’s going on.

Mark Chenoweth: Yeah. You mentioned that there was kind of a Rube Goldberg here, but you didn’t really go back and forth with what it is. So, what exactly happened? We know that at some point Alina Habba was serving as White House counselor to President Trump, and he appointed her as the interim U.S. Attorney in New Jersey. And there’s a deadline for that, right?

John Vecchione: One hundred twenty days.

Mark Chenoweth: One hundred twenty days that she can serve in that capacity. So, that 120 days expired, and then what could happen, and what has happened in a lot of district courts around the country, way more than I realized was happening, is that the district judges can appoint that interim person as the permanent U.S. Attorney, or at least serving until the president appoints someone else and the Senate confirms someone else.

And as John alluded to it, under the Constitution under the Appointments Clause, some appointments haver to happen by the president, but for inferior officers, the Congress can have appointments done by heads of departments, by the courts of law. And so, here it would be the courts of law that would be appointing the U.S. Attorney.

Now, there’s a couple of things in there that jump out at me, John, and the first one is, is a U.S. Attorney not a principal officer? This is somebody that is presidentially appointed and Senate confirmed most of the time.

John Vecchione: Until this came up, I had never thought otherwise, but it appears that there’s some statutory dispute about it.

Mark Chenoweth: There is some dispute about it, and it’s sort of mystifying to me 

John Vecchione: Did it come as a surprise to you?

Mark Chenoweth: It did to me because I can’t think of anybody else who is presidentially appointed and Senate confirmed who wouldn’t be a principal officer. I mean, these are typically cabinet-level folks, and maybe, I don’t know 

John Vecchione: They’re not cabinet-level.

Mark Chenoweth: Head of agencies, though.

John Vecchione: Yeah, exactly. But I guess because they can be appointed by the head of the Justice Department that makes it. For us, they have so much power and so much independence that it struck us both as odd.

Mark Chenoweth: It did. And Robert Jackson, the former Attorney General, also former Supreme Court Justice, talked about the role of the persecutors being the most fierce in power in the federal government and one of the reasons that there’s a duty on the prosecutor to do justice and not just get a prosecution. There’s a tension there in how aggressive the prosecutor can be and still deliver justice.

So, I’ve always thought of that as a principal officer. So, if they are principal officers, then the courts of law couldn’t appoint them under the Appointments Clause. So, there’s potential problem one.

But problem two, John, and I haven’t seen a lot of talk about this, what’s this business of appointing someone in a different branch of government? That just seems like a blatant violation of the separation of powers.

John Vecchione: Well, it’s in the Constitution. Right?

Mark Chenoweth: But is it?

John Vecchione: So, the vice president is in the Constitution, and he does a lot of things that we would not think he would be allowed. Why does the executive vice president preside over the Senate?

Mark Chenoweth: Because it’s in the Constitution, is your point.

John Vecchione: Because it’s in the Constitution. So, it is not completely an Aristotelian system. They put things in there, and this is going to be really interesting in this case, because this judge, I might add, is from Pennsylvania. None of the New Jersey judges who were appointed could be in it. So, he sits by designation.

Mark Chenoweth: Yeah. Because they all had a conflict because they’d done the appointment.

John Vecchione: And he’s the Chief Judge I think of maybe the Western District.

Mark Chenoweth: Middle District.

John Vecchione: Middle District of Pennsylvania. And he’s a federal sided guy in this.

Mark Chenoweth: Is he though? Because I heard that, but he was appointed by Obama. It’s Matthew Brann, the Chief Judge for the Middle District of Pennsylvania.

John Vecchione: I think it was one of those deals because Pennsylvania has a republican and a democrat and they made some deals.

Mark Chenoweth: Okay.

John Vecchione: So, I’m not saying he’s Scalia, but the reason that he decided she can’t be there I think comes in the middle of this opinion and has to do with the fact that what Congress was trying to get at is you have to use somebody who has been presidentially appointed, Senate confirmed. We call them PAS officers. Either you have to use a PAS officer, or somebody who 

Mark Chenoweth: For a vacancy.

John Vecchione: For a vacancy, or somebody who has been in that department for more than 90 days. And so, the reason he says that she can’t do it is because they’re trying to get around Senate confirmation and they’re trying to get around using the normal chain of command, which is what Congress didn’t want.

And I point you to page 38 because I really think this is the nub of it. Because we’ve been worried about separation of powers here with the courts, as you just said, but what he says is statutory context also supports the reading that the executive may not appoint a first assistant after the vacancy, and that meaning the vacancy under the Vacancy Act, and have that person begin performing the functions and duties of the vacant officer under subsection A1. Applying the government’s reading would render the limits in subsection A2 and A3 surplus in the vast majority of the cases. That means having a PAS or having someone who had been there for 90 days.

Those provisions set a very high bar for the president’s options for a non-first assistant acting official. Either a person who has already been confirmed by the Senate to another person, or a person who worked in the relevant agency for at least 90 days before the vacancy, and was paid at a GS15 level. But if the president may simply name anyone as the first assistant at any time and thereby vest them with acting powers, these limitations on acting service are rendered entirely irrelevant. So, what he’s saying under this statue, the president retains the ability to trump the courts appointed, but his pool of who he can pick is not unlimited.

Mark Chenoweth: And Habba wouldn’t be viable because she was not presidentially appointed and Senate confirmed, so she doesn’t meet the PAS standard, and she hadn’t been in the department for 90 days.

John Vecchione: Correct.

Mark Chenoweth: Because she had been there for 120 days I thought?

John Vecchione: But as a special appointment.

Mark Chenoweth: I see.

John Vecchione: So, those don’t count is what he’s saying, as far as I can tell.

Mark Chenoweth: Okay.

John Vecchione: And I don’t know if that’s correct or not, but it’s not crazy when he’s trying to understand what the Congress is getting at.

Mark Chenoweth: Yeah. But I don’t think that answers, for me at least, the constitutional question whether we want judges or whether under the Constitution judges can do appointments in the executive branch. Because imagine it the other way around. Imagine that let’s say Attorney General Bondi were appointing the law clerks to Chief Justice Roberts.

John Vecchione: Right.

Mark Chenoweth: I think he probably wouldn’t think that’s a great idea.

John Vecchione: That’s true.

Mark Chenoweth: Right? But under that same appointments clause, law clerks are certainly inferior. Maybe they’re not officers at all, but maybe they’d say they’re employees 

John Vecchione: Not of the executive branch.

Mark Chenoweth: So, pick somebody else. Say the marshal of the court or somebody who is an inferior officer.

John Vecchione: Okay.

Mark Chenoweth: If Attorney General Bondi were picking that person rather than the chief justice, I think he would have a problem with that, and rightfully so.

John Vecchione: He would, but the president can’t point to the Constitution that says these inferior officers can, in certain circumstance, be appointed by the courts. I think the real question is if it says that the president can do it and the courts can do it, you have an argument that the executive should trump. But here, if I’m reading this right, they’re not saying he doesn’t trump it. They’re saying that if he picks from the wrong pool, he’s not allowed to do that.

And that is another constitutional issue which is can the Congress limit the people that the president is going to appoint to these offices? Is that allowed? And I don’t think that’s been determined, but that’s what’s really going on here. Because they are not taking away his power of appoint. They’re just saying, “If you’re going to do it, here’s your pool.”

Mark Chenoweth: Right. Which does get back to advice and consent.

John Vecchione: Right.

Mark Chenoweth: Because clearly for these positions where Senate confirmation is required, it would completely undo that requirement, and that’s what Judge Brann is saying, if you could easily just circumvent it. Right?

John Vecchione: And another thing we did learn, because I didn’t know it was this widespread either, is that the courts are doing this. And in other districts, the Trump administration and the courts are getting along.

Mark Chenoweth: Including the Eastern district of Virginia, where we’re sitting.

John Vecchione: Correct. What basically the courts are saying, “How about this guy? Because you’re not doing it, and we need  ” or the Senate isn’t confirming.

Mark Chenoweth: I was going to say, it’s not just the president.

John Vecchione: Right, exactly.

Mark Chenoweth: Some of this is just the Senate not getting around to it.

John Vecchione: “So, they’re not doing this, so we need a U.S. attorney here. Can we do this guy?” And almost everywhere it appears that the administration and the courts are working the way I think they’re supposed to.

Mark Chenoweth: Yeah.

John Vecchione: But Alina Habba has been going around New Jersey saying that she’s going to use this to advance the Trump agenda. She’s actually said that she’s going after the enemies of the administration.

Mark Chenoweth: You don’t think the judges like that very much.

John Vecchione: I think that may have gone 

Mark Chenoweth: It might have been a strategic error.

John Vecchione: A strategic error, yes. So, this one is really going to be interesting for all these reasons that we’ve just discussed. You do have the constitutional statement, you do have the executive department, you have the Vacancies Act, which is hard to understand. It really is. And this guy goes through the exact wording they use and the order and all this.

Mark Chenoweth: And there is a back history to all those words I’m sure.

John Vecchione: Exactly.

Mark Chenoweth: And it’s not this back history. It’s something else. So, then it’s how does that apply to this situation?

John Vecchione: But here’s the thing I want to know. He holds the Senate. All he needs to do is get her confirmed. Now, I don’t know who the holdouts are, and I know that there’s delays in getting confirmations, but 

Mark Chenoweth: Yeah, that’s it. I haven’t heard any hold  I mean, maybe there are with Alina Habba, but really there are still dozens and dozens, maybe hundreds, of appointees that haven’t been confirmed.

John Vecchione: And Schumer is saying no to everybody.

Mark Chenoweth: Right.

John Vecchione: That is correct. And that is bad, but 

Mark Chenoweth: But the Senate is also saying, “We’re not taking a recess in August so that you can recess appoint all these people,” which they could have done.

John Vecchione: Right. That is true. But I think that either way when you control the Senate, and this is important to the president, he could just say to Thune, “Get her through,” and they would stop  or they don’t have the votes. Maybe she’s a Matt Gaetz for all I know, but I don’t 

Mark Chenoweth: Right. We haven’t heard that.

John Vecchione: And I certainly don’t  whatever I might think of Attorney Habba, I don’t think there’s a 

Mark Chenoweth: Well, and they got Jeanine Pirro through.

John Vecchione: Right, exactly. Who is actually getting some good reviews from the folks there.

Mark Chenoweth: She is.

John Vecchione: But she couldn’t indict the ham sandwich thrower. But anyway, I do think that this is going to be interesting because of what you said; our mindset, certainly on separation of powers, is that you can’t do this. But I think that statement about inferior officers in the courts is like the vice president; it’s a wrench thrown into the otherwise Aristotelian setup.

Mark Chenoweth: Well, see I’m going to disagree with you there because I don’t think that the language is specific enough. It says that Congress can have all of these appointments occur, but it doesn’t say that they can occur across the boundaries of the branches. So, in other words, that appointments clause is trying to serve the function of all branches.

So, can the courts of law appoint inferior officers within the judicial branch? Well, sure. They can’t appoint the people the president needs to appoint like district judges, but they can appoint magistrates and that kind of thing. And similarly, Congress can appoint inferior officers within the legislative branch, and the heads of departments can appoint people in the executive branch. But there’s nothing that says that that goes across branches.

John Vecchione: Wait a minute. So, the history and tradition is out the window? Because they’ve been doing this since the first year of the Congress.

Mark Chenoweth: They’ve been doing it a long time. I can see that point.

John Vecchione: If you’re going to see a fight, you fight Barrett and Gorsuch and Thomas on history and tradition. This is going to be a big history and tradition one because they’ve been doing this forever.

Mark Chenoweth: They have. It’s been a mistake from the get-go. Well, it hadn’t come to a head maybe for the first 200 years.

But here’s the other thing. There was something you said a minute ago that got me thinking. The judges are saying, “Well, we have to have a U.S. attorney. It’s so important that we have a U.S. attorney in this position.” Well, why is that, John? It’s because it’s a principal officer. That’s why. You have to have a principal officer reviewing all of these indictments and making all these decisions because they’re extremely important, and you can’t have just a subordinate person doing it.

So, guess what? If it’s a principal officer, then the judges can’t do the appointment because the appointments clause is only for the inferior officers.

John Vecchione: I do have another interesting thing, and why I think Judge Brann is not off the reservation is he went out of his way to say that doesn’t dismiss the indictments.

Mark Chenoweth: He did say that, yeah. He’s not going there.

John Vecchione: He’s not letting all the horses out of the barn door while this gets figured out, let’s put it that way.

Mark Chenoweth: Yeah. I think the thing that I would say, if I’m right about the constitutional piece here, then looking at what the president did with that gloss, the White House had to do something. DOJ had to do something. They don’t want this person in there who the judge has appointed. I think for me there’s no question that the president can remove that person, because we’ve talked about that before in other episodes.

John Vecchione: No one disagrees.

Mark Chenoweth: Yeah. So, then the question is well, now who is going to serve? I supposed you could say well, the judges have to appoint somebody else, and they could keep appointing, and the president can keep removing until they find someone who is mutually agreeable.

John Vecchione: Or you could put in a PAS person.

Mark Chenoweth: You could put in a PAS person, right. Or they could put in a PAS person. That might be harder for them.

John Vecchione: Or he could do what he did in these other ones.

Mark Chenoweth: Why does the president, by the way, have to put in a PAS person but the judges don’t? Are the judges limited in who they can pick? Can they only pick that first assistant?

John Vecchione: No.

Mark Chenoweth: That seems odd to me.

John Vecchione: I think the thing there is the Congress doesn’t think it’s going to be a crony of the president.

Mark Chenoweth: But it could be a crony of the judges. And maybe crony is the wrong term.

John Vecchione: Well, I know. Exactly. It’s obviously going to be someone who 

Mark Chenoweth: It is New Jersey.

John Vecchione: Yes, that is true. I was thinking that in the back of my head and I didn’t say it.

Mark Chenoweth: Well, you’ve got people up there, John. I don’t.

John Vecchione: That’s true. So, the other thing that I think is bothersome to me is he’s got plenty of New Jersey lawyers who are pro-Trump, and he could do what he’s doing in the other places here, but he really wants Alina Habba, which means to me it’s a political thing. You’ve got the Senate. Make it a priority and just do it, and then no one can say boo.

And the delay is important, but this isn’t happening across the country. What’s really remarkable for our purposes is it isn’t happening everywhere. Usually courts, even when they’re not majority republican controlled or anything, they’re saying, “Look, we need this, you need this. How about this guy?” and everyone is going along with it. So, this is the sticking point.

Mark Chenoweth: This is the stand out. And I think the Northern District of New York maybe there was an issue as well. So, there have been a couple places where it hasn’t gone smoothly.

John Vecchione: It’s true. And it’s odd that the Northern District of New York, which I don’t know if you’ve ever been there, but they are extremely fond of the president in the Northern District of New York. And you can’t go through the drive thru without the Trump signs, and every dairy farm and the rest of it.

Mark Chenoweth: This isn’t Long Island.

John Vecchione: No. But even there  but anyway, it’s not Greenwich Village, let’s put it that way.

Mark Chenoweth: Okay.

John Vecchione: I’ll tell you this. I’m going to make a prediction right here on this show. I think they will get her confirmed and moot this out before it goes to the Supreme Court. That’s my thought.

Mark Chenoweth: What about before it goes to the third circuit? Because they’re going to appeal this to the third circuit, right?

John Vecchione: Yes.

Mark Chenoweth: They’re not going to just let this stand.

John Vecchione: Correct. I don’t know if it’ll be done that quickly, but I have a feeling that they won’t have to press it because I think something will  there are so many ways to fix this besides appealing and going up. I think they’ll fix it.

Mark Chenoweth: And you don’t think the president wants a ruling on whether or not the judges can do this? Because this would be an opportunity to consolidate some executive power if he’s right. If the interpretation I was putting forward were accepted, then he would be happy about that. Right?

John Vecchione: Yeah. I agree with that. I think we got now the federal reserve case, we have a couple  maybe it does. I don’t know.

Mark Chenoweth: Maybe you don’t push all of the buttons at the same time.

John Vecchione: I just have a feeling that the Senate will get around to it if it becomes that big of a deal.

Mark Chenoweth: Maybe the Senate doesn’t want to see a decision on the case.

John Vecchione: Right.

Mark Chenoweth: That could be. I don’t know if we said this before, John, the 77-page opinion, this was thorough if nothing else. It looked at all the angles, right?

John Vecchione: Right, exactly. And as I said, the fact pattern here is very complicated.

Mark Chenoweth: And the reason we haven’t talked more about Julien Giraud Jr. is because it’s sort of irrelevant what the underlying criminal charges were here, isn’t it?

John Vecchione: Correct.

Mark Chenoweth: This is just an issue about a U.S. Attorney.

John Vecchione: There’s another one, a guy named Cesar Huberta Pena, and they both have the same thing, but neither of their indictments are being dismissed. So, they’ve teed this up for our show, but they really haven’t gotten anything out of it.

It’s an interesting case. I do think that we’re going to hear more maybe from the third circuit, maybe from the Senate, but I don’t think this is the last word on this topic. But it is the last word for now on Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 22 minutes