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PaperclipPerfector  3mo ago (text post)   23806 thread views

Culture War Roundup for the week of November 24, 2025

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It did ultimately lead to the clusterfuck that's happening now, though. If Bondi could have appointed a special counsel to investigate Trump's enemies, she likely would have done so. But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence. There is effectively no one in charge of four offices at this point, though I can imagine that the career supervisors there will keep things running in the meantime, at least as far as routine matters are concerned.

There is effectively no one in charge of four offices at this point

Aren't courts supposed to appoint US attorneys if the AG's choices can't secure Senate confirmation?

There is a real question about separation of powers where the court appoints an executive officer.

There's a real question about separation of powers if a President tries to appoint principal officers without the consent of the Senate.

Or if there's no one to actually run the US Attorney's office.

There's no way around the dysfunction. Congress tried to craft a compromise (muddle) solution.

https://reason.com/volokh/2025/07/26/appointment-of-interim-u-s-attorneys/

That is a shockingly bad post by Calabresi. The Constitution explicitly allows Congress to delegate the appointment of inferior officers to the Courts. Calabresi's response is that they can't have meant it because the Constitution sets up a unitary executive, and the clause allowing Congress to delegate appointment of inferior officers to the Courts can only apply to Court clerks and suchlike. [I am not a historian and don't know the reason for the clause, but my guess is that the framers expected the local district judge to be the highest federal official in the sticks, and therefore best-placed to make local interim appointments before a message could get to Washington]

But the only reason why you might think the Constitution sets up a unitary executive is the text of the Constitution and, critically, the Appointments Clause. You can't just say "if I ignore this sub-clause, the vibes of the rest of the text imply X. Because X, this sub-clause should be ignored."

I'm not sure appeals to original intent help here - the framers would have been horrified at the idea of a corps of full-time professional civilian Federal prosecutors, because they didn't want the Federal government to be creating enough civilian criminal law to support one. You should look at the words they wrote, not the vibes here. And the words are clear.

That is just wrong on many points.

First, unitary executive isn’t based solely (or primarily) on the appointments clause but on the theory that the constitution says the executive power is vested in the president.

This was then further explained in the federalist papers.

Second, textualism in constitutional Interpretation is quite dangerous given that (1) constitutions tend to be less built out compared to legislation and (2) they assume fluency with the political backdrop of the late 1700s.

While the text is obviously important, it is necessary to interpret in light of the broader context. The constitution was clearly setting up a system of divided government contrary to the experience under your country’s rule.

Each branch has some power but the idea is that other branches could check them given the divided power.

Inferior officers are of course necessary to carry out the power vested in each branch. So why after setting up a tripartite form of government, would the constitution allow for example courts to appoint all of the inferior officers of the executive? Or, if we are to believe your theory, the constitution permits Congress to vest appointing inferior officers of both the executive and the judicial in say the the head of HHS. So despite making the executive power vested in the president and the judicial power in the courts, the head of HHS is the person who actually gets to choose who the core people in those regimes are therefore making the president and judges basically subsidiary to the head of HHS.

That’s clearly absurd and inconsistent with the context. The more natural therefore construction is that Congress can choose how inferior officers are picked by the president within the executive, or the judges within Art III, or department heads within their department. That is, it’s implied even if it stated.

I don't buy that argument. The statutory text makes clear that after the 120 day term expires (c2), then (d) the district court appoints until the vacancy is filled. What would the point of an expiration be if the AG just gets to repeatedly re-fill it? The entire (c)(2) provision would be surplussage.

That said, maybe the Supreme Court looks at 28USC§546 and decides the way Prof Calabresi argues here. I just don't see it.

  1. The statutory text you cite is likely unconstitutional as Prof Calabresi argues since the power to appoint executive officers is vested solely within the president or department heads. Therefore a textual analysis is arguably besides the point.

  2. The provision you mention under (d) is a may; not a shall. So it doesn’t seem like the power is wrested from the executive.

Calabresi is making the argument that the same person can be given connective 120 day appointments. But it’s even a stronger argument that different persons can be given consecutive 120 day terms (ie the president or AG doesn’t lose the power to make the appointment).

Otherwise, you permit a small minority in the senate to give unfettered executive power to a judge allowing him to appoint an AUSA within his district. That doesn’t make sense in light of our checks and balances.

Therefore at minimum a constitutional avoidance reading should apply to state that the executive can appoint a second person to the office. He did so here.

Even if it is unconstitutional, the proposed interpretation is not the only way a court would cure the infirmity. That's conclusory at best.

For example, a court could consider just severing (d) and otherwise asserting that beyond that time, only an appointment with the consent of the Senate can exercise that office.

Otherwise, you permit a small minority in the senate to give unfettered executive power to a judge allowing him to appoint an AUSA within his district.

A majority of the Senate believes in the blue slip process.

That in turn means they are not in favor of confirming Halligan and Habba.

That’s fallacious. The senate supports blue slip and thinks that is worth. That is a different question compared to whether the senate is or is not favoring of confirming Halligan or Habba.

And if you severe (d), there really isn’t a strong argument that the office remains vacant. Maybe you can’t reappoint the same person but nothing in the text suggests the president cannot appoint someone.

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For all those words, the niggling constitutional problem that the good professor doesn't address is the fact that such an interpretation would render the Appointments Clause meaningless, as the president could effectively avoid Senate confirmation permanently by just renewing the appointments every 120 days. But there's a larger practical problem; if court appointments are unconstitutional, as he says they are, then any US Attorney who has been so appointed does not have the authority of the office. At present, this is the vast majority of US Attorneys in the country. If the Supreme Court rules as the good professor wants them to, do you think that being forced to vacate nearly every Federal indictment since this summer (and a lot of rulings on cases that were indicted before them) is a good tradeoff to confirm the authority of fucking Lindsey Halligan?

It is a vexing problem. But rendering something arguably deadwood appears better than just creating out of whole cloth a power that doesn’t exist.

Of course, there is nuance to this debate. Trump is of course happy to bring his AUSA up for a vote. Probably would pass given R majority. The key missing point is that the Dems are blocking due to Senate custom.

So what you want is a situation where the power of executive is removed from the president and granted to a judge in a situation where a minority of Senators block advice and consent. That makes less than zero sense in the context of Art II, Art III, and the nature of advice and consent.

So I think you have it pretty much backwards. Yes there is a risk on a president abusing the provision, but there is also a risk of a minority in the senate abusing the provision if your read is correct. It seems like the right way to think of this is if the president is willing to put forth a candidate but the senate refuses to vote, then the president can make that person an interim AUSA. If the Senate votes and refuses consent, then the president has to start again.

This avoids the pitfall you are worried about without upending the entire constitutional order and again policing bad actors in the senate.

And this is about more than the authority of a single AUSA. This is a question of who controls the executive.

Finally, do you have a citation for most indictments being brought by court appointed AUSAs?

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In theory, yes. In theory, there's also someone already in the office who would automatically become Acting US Attorney in the event of a vacancy without an appointment. In practice, both of these are the same person—a career prosecutor who anticipates outlasting the current administration and would prefer to prosecute boring criminal cases rather than participate in Trump's revenge tour. So what happens is the Administration appeals the court ruling and fires whoever the court appoints, or tries to use some backdoor shenanigans to appoint their preferred candidate to a position where she'd automatically take over as US Attorney upon her own disqualification, creating confusing arguments where one holds multiple titles at once. At least this is how it's playing out in New Jersey. I'd offer a more detailed explanation but I'm not entirely sure I understand Pam Bondi's reasoning so I'll hold off.

The upshot here, though, is that the Trump Administration is going to continue to insist that Halligan is the US Attorney for the EDV, despite a court ruling saying she isn't. Imagine if you got an email from your company saying that your boss was no longer employed there, but he continued to show up and was assigning your team work that would cost the company a lot of money. When you email top leadership they tell you he doesn't work there anymore, but when you email his immediate supervisor you're told that he does and just continue the way things have always been. How much work do you think gets done in that situation? How long can the company continue to operate amid the uncertainty? How efficient will any work be? Now assume that this guy is also entirely unqualified for the job and was hired for the position because he was his boss's college roommate and he occasionally makes bizarre decisions that no one in the company can justify. You have absolutely no idea what's going on. What do you think morale is like? This is basically what's going on in New Jersey right now, where the entire office isn't doing anything because nobody knows who has the authority to do anything.

Imagine if you got an email from your company saying that your boss was no longer employed there

Getting an email from some judge saying that your boss is no longer employed at your company would be quite unusual though; "your company" in this case is the executive branch (c'est Trump!), no?

Within Rov's analogy, "your company" is the US gov as a whole (with Trump being the "immediate supervisor").

And it was a really shitty analogy. Besides there not really being a company structured like the federal government, in this case there was a department lead that said “you are still employed” and a junior person in a different department said “nope you are fired.”

Now maybe Rov made an innocent mistake but I think he is trying to stack the deck because of his political leaning.

Companies that are structured as distinct and separate branches with no overall leader would be... quite unusual. I can't think of any, and if I could I would think it would be extremely unusual for a minor minion of one of the branches to be able to overrule the leader of a different "coequal" one. (and @pusher_robot, I'm pretty sure the DoJ already has their own HR?)

A better analogy then would be that the SVP of your division says your boss is still employed, but a SVP of a different division which contains HR says he's not

As I point out above, it is a district judge. So it isn’t like an SVP but bottom of the chain employee of a different division.

In the analogy we are using, it is the HR manager with the delegated authority to make that call unless and until overruled by a higher-up. The analogy fails here because the federal judiciary enjoys a level of respect that HR (or even corporate in-house legal) does not - a federal district judge is a lot higher up the food chain than a first-line HR manager even if they have fewer subordinates.

Like any other litigant, the government is required to obey the orders of a court with jurisdiction unless and until they are stayed or overturned. And this is a case where jurisdiction is clear - it is a district judge exercising jurisdiction over his own courtroom. This doesn't mean he is right - that is a question for the appeals court.

I think your view of judicial supremacy is very challenging one that goes back to the founding. It isn’t even necessarily wrong but a challenging question.

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But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence.

Could you please explain this?

I think the OP does a pretty good job of explaining Trump's interpretation of the law and why the court didn't buy it. As for the second part, there are four US Attorney's offices operating without a US Attorney for the time being. While the district courts can appoint a US Attorney, I don't know how long this will take, and I don't know what's going to happen if they appoint someone the administration doesn't approve of. Right now it's currently a matter of dispute who is, in fact, the US Attorney, if anyone even holds the position at all, and Federal prosecutions there have accordingly ground to a halt.

Judge Cannon ruled that Jack Smith had no statutory power to bring the classified documents case. Thus, Bondi couldn’t just spawn a Special Counsel to manage the lawsuits Trump wanted. She had to slot them into an existing office.

In this case, Siebert was the lawfully appointed U.S. Attorney for Virginia. But he wouldn’t sign the indictment. Bondi fired and replaced him with Halligan, who did. Since that skipped the confirmation process, though, it ran into the same problem which got Smith.

Thanks!

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