Trump’s Quest For Political Retribution Is Impeding The Justice Department

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Hey there, it's the NPR Politics Podcast. I'm Tamara Keith.
I cover the White House. I'm Carrie Johnson.
I cover the Justice Department. And I'm Mara Lyason, Senior National Political Correspondent.

And today on the show, President Trump's quest for retribution has brought major changes to the Justice Department.

Carrie, you have been following this closely and from the very beginning, but before we get to those bigger themes, I want to start with the latest news, which is that a federal appeals court has ruled that U.S.

Attorney in New Jersey, Alina Haba, was not legally appointed to her position. So what does that mean? Well, remember, Alina Haba is a very close associate of President Trump.

She actually served as one of his personal lawyers in the past, and he very much wanted to install her as the U.S. Attorney in New Jersey, the top federal prosecutor in the state.

But today, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that she was unlawfully placed in that job.
And as a result, she is not able to supervise cases there.

Now, this is a pretty big deal because U.S. attorneys have huge responsibilities.
They decide what to prosecute and what not to prosecute and what kinds of charges to bring.

And they supervise all kinds of important civil rights and criminal and national security cases. In the short term, it's not clear what is going to happen to Alina Haba.

She may want to stay in the U.S. Attorney's office in some capacity, and the White House may want to keep her there.

No word yet on changes to her status. Well, Kerry, in order to be legally appointed, what does that mean? The Senate has to confirm you, or a bunch of judges have to confirm you?

What does she need that she didn't have? The president has a lot of power to pick who sits in these jobs.

In the normal practice, a president would nominate a person like this, and the Senate would review the person's background and then vote to confirm a U.S. attorney.
That hasn't happened in this case.

And in the absence of a Senate confirmation vote, the president also has some other strategies.

The White House can put somebody in that job for up to 120 days to kind of serve as an acting or an interim person.

But the way Alina Haba was installed, in particular, this appeals court panel said, went against all existing authority the president has. And as a result, it disqualified her.

Not legally appointed to her position is a phrase we have heard before recently. Kerry, can you talk about how this fits into a pattern for the Trump administration? Absolutely.

Just last week, a federal judge in the Eastern District of Virginia ruled that Lindsay Halligan, another person with no prior prosecutorial experience, but who had worked as a personal lawyer to President Trump, that she was unlawfully appointed to her job.

And because Lindsay Halligan was the only person apparently in the grand jury and the only person apparently to sign indictments of prominent Trump critics like the former FBI director Jim Comey and New York's Attorney General Tish James, that those two prosecutions had to be dismissed, at least for now.

And that is a huge consequence.

Moving forward, Tam, there are also legal challenges to U.S. attorneys appointed by Trump in places like Nevada, Southern California, and Northern New York.

So this is a big problem across the country.

And as the judges noted today in the Alina Haba decision, it leads to a lot of uncertainty and instability, both for the legal systems in those places, as well as the civil servants who are working under the U.S.

Attorney and the Justice Department. Kerry, Comey and James were certainly on President Trump's enemies list, if there is one.
Where do these cases go from here?

Well, remember, in part, they were disfavored by the president because they had investigated Donald Trump.

Trump still blames Jim Comey for the whole Russia investigation that started during Trump's first term in the White House.

And Tish James actually brought a civil fraud action against Donald Trump and his company over real estate valuations. James won that case in court, although the financial penalty has been thrown out.

And as a result, Trump desperately wanted to see them face the other end of justice.

And he basically basically forced out a career prosecutor in Virginia who thought there wasn't enough evidence to go that far and bring these indictments against Comey and James.

We haven't heard yet from the Justice Department about the next steps. The Attorney General Pambondi has said they do want to appeal, but we haven't seen a notice of appeal yet.

It's also possible that they could try to get a new prosecutor to try to bring these indictments, but there's a catch here, which is that the statute of limitations on Jim Comey's testimony to Congress basically expired and so it's an open question as to whether prosecutors can take a second bite of that apple moreover because these cases were dismissed on the basis of Halligan's disqualification judges never actually heard significant arguments that these defendants made that they were targeted as vindictive or selective prosecution, targeted because Donald Trump wanted people to go after them.

Those could be live issues that would return again if new indictments are brought against these defendants.

Essentially, a theme seems to be developing in this Trump administration and this version of the Justice Department, which is that the president's enemies are being punished and his friends and allies are getting preferential treatment.

You know, that's a point that's been made by a number of former Justice Department officials from Republican and Democratic administrations, from retired judges at the federal and state level, they have a lot of concern about the rule of law and the weakening of the rule of law this year.

And fundamental to that whole idea is the idea that no matter who you are, that you get the same treatment.

And there's a lot of concern that in the Trump Justice Department and then in the Trump White House, some people are getting better treatment than others if they're a favorite of the president

Maura, why should someone sitting at home care about this? Well, there are many people sitting at home who don't care about this. They're not paying attention.

The ins and outs of how the justice system works is not something that most people think about. They're thinking about the price of groceries.

However, to the extent that we have polling on this, majorities of Americans do say that President Trump is rewarding his friends and punishing his enemies.

He has made it really clear that he wants the Justice Department to be his kind of retribution machine.

While I don't think that it's top of mind for voters in the midterms, the economy will be the number one issue.

I do think it feeds into the argument that Democrats are trying to make, which is that Donald Trump is not for you. He doesn't want to help you.
He just wants to hurt his enemies and help his friends.

All right, we're going to take a quick break, and we will have more on that in a moment.

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And we're back, and we've been talking about a partisan shift at the Justice Department and how it's impeded the agency's ability to function.

And Carrie, I want to get back to what we were talking about in the first half of the pod, which is sort of the idea that putting loyalists in place instead of professionals may have consequences.

Yeah, there's been a real brain drain at the DOJ.

Thousands of people have left, either because they didn't want to be around anymore and follow marching orders from the Attorney General and the President, or because they were forced out or fired because they had worked on cases or matters the president didn't like, like the January 6th Capitol riot cases, for instance.

And as a result, some veterans of DOJ suggest that this Justice Department is both kind of thinly staffed and also less careful than it used to be.

They've been pointing out mistakes and typos and important filings and letters. And judges have noticed, too, judges appointed by both Democratic and Republican presidents.

And Carrie, explain what the Justice Department lawyers used to have as a kind of automatic privilege that a lot of judges are saying they're no longer going to give them.

Yeah, you know, DOJ lawyers had something of a superpower when they went into court, and that thing was called the presumption of regularity.

It meant that judges basically gave DOJ attorneys the benefit of the doubt. They respected DOJ attorneys and their recitation of the facts, and they thought they would make solid arguments.

And as a result, judges were somewhat deferential to the positions DOJ took and, you know, their description of events.

And some of that has been basically blown up this year in just a matter of 10 or 11 months. We've heard from judges in D.C.

and all over the country that they feel that they can't trust this Justice Department in some cases to be a neutral arbiter, especially in cases involving immigration and other major priorities of this White House.

Kerry, another area where we have seen partisan political players at the Justice Department create challenges for the president's agenda relates to Texas and that state's redistricting effort.

Can you explain what happened there? Yes, Texas was trying to do new maps to potentially give Republicans in that state as many as five additional seats. And plaintiffs challenged those maps.

And the Justice Department Civil Rights Division had sent a letter basically advising or offering some guidance to to state lawmakers in Texas, and that DOJ letter became a major part of the legal proceedings in that case.

It was really remarkable because a judge appointed by the Trump administration said it's challenging to unpack that DOJ letter because it contains so many factual, legal, and typographical errors.

The judge went on to say that even lawyers employed by the Attorney General in the state of Texas, who are basically allies of the Trump administration, that they had criticized the DOJ letter as legally unsound, baseless, erroneous, ham-fisted, NMS.

And even worse, because this letter talked about racial matters having to do with the way some Black and Latino voters were packed into certain districts, that that actually created more legal problems for these maps and Republicans in Texas.

Basically, the judges who were hearing this case gave it, you know, a more eagle eye because of the invocation of race by the Justice Department.

These judges said, in their opinion, that if DOJ had simply said, listen, we want to help out Republicans in this state, that they wouldn't have dug even deeper because, you know, politics and partisanship are considered kind of part of the analysis now.

And the Supreme Court has ruled that you can't really challenge partisan gerrymanders in the same way anymore.

I mean, that's remarkable because that letter was sort of the pretext for the state legislature to redraw the maps. Mara, give us the political context here.

Well, the political context is that Donald Trump asked Texas to find five extra seats that Republicans could win because he doesn't want to lose the House, and other red states have followed suit, and then they've been taken to court.

And the next step is the Supreme Court is going to weigh in on this.

And I guess my question for Kerry is: even though Donald Trump seems to be losing a lot in lower courts and in appeals courts, are we just waiting for the Supreme Court, which has a conservative majority, 6-3, three of the conservatives were appointed by Trump, are we just waiting for them to sanction this and say that Donald Trump can, as he says he can, do whatever he wants?

Well, what's happened right now is that Justice Sam Alito has hit pause on that lower court ruling while the Supreme Court considers what to do and reads briefs from both sides in this case.

This Supreme Court has been very skeptical of the Voting Rights Act, to say the least, and has been really...

fairly hands-off when it comes to efforts

to eviscerate the Voting Rights Act. And so it's not clear to me what these justices are going to do in the short term.

It is true that this Supreme Court has not always sided with the Trump administration this year.

I'm thinking, in particular, of their directive that the administration had to find some way to facilitate to get the migrant Kilmer Abrego Garcia back to the U.S. out of that Seacot prison.

But in large part, the Supreme Court so far has sided with the Trump administration on a temporary basis on major things, things like firing federal workers whole scale, dismantling entire federal agencies.

And it's an open question, of course, not only how they're going to handle this Texas manner, but also maybe even bigger challenges to executive power like that tariff argument we talked about not too long ago.

And when you just mentioned the Voting Rights Act, let's just remind people, if the remainder of the Voting Rights Act is overturned, that will potentially allow Republicans to draw new maps, not having to worry about racial gerrymanders anymore, that could get them over a dozen more seats.

So in terms of the redistricting battle, Republicans have an advantage. They've got more seats now in Texas if that map is eventually approved by the highest court.

And if the Voting Rights Act goes away, they could get even more.

So I would say the political effect is that Donald Trump's wish to get more seats drawn in a mid-cycle redistricting, which is very unusual. It's another norm that he's blown through.

That will give Republicans a pretty big advantage in the midterms. Or it could not.
All right, we're going to have to leave it there for today. I'm Tamar Keith.
I cover the White House.

I'm Carrie Johnson. I cover the Justice Department.
And I'm Mara Lyasson, Senior National Political Correspondent. And thank you for listening to the NPR Politics Podcast.

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