Anne Joseph O’Connell

Bloomberg Law: NJ Federal Criminal Courts Frozen - Bloomberg Host June Grasso speaks with prominent attorneys and legal scholars, analyzing major legal issues and cases in the news.

I did another podcast on the NJ US attorney mess. It is for a more general audience than some of my posts here. www.bloomberg.com/news/audio/2...

Pardon my French, but the situation in NJ is a clusterfuck.

Here’s the letter from the office of the public defender to Chief Judge Brann.

I’d like to point out the official channels through which the NJ attorneys and judges communicate.

Unlike Trump, Bondi, Blanche, Habba, who do so via X.

Brief in opposition to the motion to dismiss on the basis that Habba is unlawfully serving as “acting” U.S. attorney.

Status conference at 3.

The office of the public defender also filed a letter on its own behalf (see next post).

I was thinking questions in the next survey of federal employees to create some sort of alternative score of agencies...

But there are not many pictures inside… Would be cool to see a superlative list for agencies by year: most ambitious, teacher’s pet, most likely to succeed.

In case you want to hear me, rather than read me. And the aim was to speaker to a broader audience than lawyers who know 3345(a) v. 3345(b) of the Vacancies Act. We had to record twice, thanks to the chaotic, fast moving events.

Recorded a podcast today (had to record twice, due to fast moving events) with Jack Goldsmith, link soon. I wonder if next move will follow Mark Esper in Trump 1.0. WH waited to submit nomination so it was pending only a few days (needed a new acting but short). That requires the Senate to go along.

I think you can read the statute either way. But yes, Steve has a point, as he always does.

Yesterday being key — Oosh!

In cynic mode, he nominates her again, in coordination with Senate leader. Nomination goes in, she steps down as acting, Senate confirms within a few days. They did this with Mark Esper in first term, someone else became acting DOD secretary but only for a few days.

Wonder if they will try the DOD Mark Esper move. Submit the nomination again right before a vote so you need another acting only for a few days.

After Kennedy v. Braidwood Management, the HHS Secretary "could refuse to adopt the [U.S. Preventive Services] Task Force’s recommendations, fire its members, and appoint new members with questionable qualifications," Professor Anne O’Connell of @stanfordlaw.bsky.social observes. buff.ly/4Tw4Tw2

I have been thinking about this: Blanche says pursuant to presidential authority Grace was fired, not by presidential direction. Reminds me of the kerfuffle over whether Berman was fired by Barr or Trump in term 1. What a mess.

Expert Officers Under Political Supervision | The Regulatory Review The Supreme Court validates political control over public health decisions.

My summary & brief commentary on SCT Braidwood decision. CA5 v. Supremes was lose-lose choice for public health. Under CA5: PSTF members had to be Senate confirmed. Under Supremes: PSTF can be picked by HHS Sec only because Sec can fire them & overturn ratings. www.theregreview.org/2025/07/24/o...

I agree.

5. If we see court-appointed US atty in NJ who doesn't get fired, a defendant could challenge that person, positing court-appts of inferior executive officers violate separation of powers. Thomas says this in his Braidwood dissent: I think Thomas is wrong, but I could see Roberts Court accepting it.

You can read "vacancy" either way but I would go with the exit of last Senate-confirmed US attorney. That would take out folks who joined under Trump 2.0. The issue also determines how long an acting can serve--when does the clock start from? 300 days from January 20 or 210 days from end of 546?

If it's a 3345(a)(3) acting chosen by President, there might be a claim on whether she has the mandatory 90 days in the year before the vacancy. It will come down to whether the vacancy dates from the departure of the last confirmed US attorney or from the end of the 120 days.

4. If the Administration uses Vacancies Act instead for *acting* as opposed to *interim* US attorney, maybe there's a claim on whether a first assistant, under 3345(a)(1) (default acting), can be named after the vacancy. I think yes (& all Presidents have done this) but text isn't crystal clear.

Alito in 1986 OLC opinion said you couldn't have successive appointments. But in a 2007 hearing, there are reports of successive appointments. The text does seem to permit it. But Congress presumably didn't want successive appointments when it added the time limits back in during the Bush43 years.

I think in both suits, Administration would win under the Roberts Court (President needs to be able to fire because of separation of powers).

3. If the Administration names someone under 546, for another 120-day term, defendant could raise a statutory claim that 546 bars successive appointments.

2. Even if Grace did not sue and stepped back, could a defendant sue the replacement, claiming Grace's firing by the Administration violated the Constitution's "power to remove follows the power to appoint rule" for inferior officers (unless Congress says otherwise)?

It has been the honor of a lifetime to represent the United States and to serve the people of New Jersey for the last nine years. | Desiree Grace It has been the honor of a lifetime to represent the United States and to serve the people of New Jersey for the last nine years. There’s no better place to work. There’s no mission more important. ...

A short thread on possible litigation over the NJ US attorney mess.

1. Could we have Grace v. WH Replacement? An echo of the English v. Mulvaney CFPB lawsuit in Trump 1.0, though the legal issue was different.

That would require Grace to sue. She is holding herself out as the interim US attorney:

Fair enough. But Blanche knew enough of the law to say the right words. Bondi's message was convoluted (and wrong).

Yes, she said she was removing her from the first assistant role. And the interim US attorney role does not depend on her even being at DOJ (it does for acting US attorneys under the Vacancies Act). Governing through X -- oosh!

Under the direction, to me, counts as presidential removal. Sergio Gor emailed me -- on behalf of DJT -- to fire me (from a small part-time appointment. :) bsky.app/profile/ajos...

We have the presidential removal. So who thinks Habba will be named to a second 120-day term? And who thinks they will turn to the Vacancies Act and name someone else (they cannot name her so long as she is nominated)?

I think they initially forgot to cross their t's and dot their i's so to speak.

that's right, I saw a later report where Blanche is quoted as saying she was fired by direction of the president.

That's right. But it would be a SOP problem if he couldn't under this Court's SOP jurisprudence.