A judge in New Jersey ruled that Alina Haba — Trump's personal lawyer and interim US Attorney for New Jersey — was illegally employed as a prosecutor. She'd been shuffled through interim positions for over 120 days without Senate confirmation. So anything she signed is not legally binding. She's been disqualified from prosecuting, supervising prosecution, even supervising anyone who supervises prosecution. Anyone acting under her is subject to disqualification too.
US v. Giraud (24-cr-00768) is the underlying New Jersey federal criminal case that produced the first district court ruling on Alina Haba's appointment authority. Haba was appointed as interim US Attorney for the District of New Jersey without Senate confirmation, relying on a statutory provision allowing temporary appointments for a limited period. She was then shuffled through successive interim roles to extend her tenure beyond that period. A defendant in a federal case challenged their indictment on the grounds that it was signed by someone without legal authority to sign it — Haba. The district court agreed: Haba had been in the position (across her various interim roles) for more than 120 days, the statutory maximum for an unconfirmed temporary appointment. As a result, her signature was not legally binding. The court disqualified her from prosecuting cases, from supervising prosecution, from supervising anyone who supervises prosecution, and extended the taint to anyone acting under her supervisory direction. Note: this is the district court decision; the Third Circuit appeal of this ruling (25-2635) was covered in later episodes (1021_AM.md).
28 U.S.C. § 546interim US Attorney appointment120-day limitSenate confirmation requirementdisqualification from prosecution
Constitutional question: The Appointments Clause (Art. II, §2) requires that principal officers be nominated by the president and confirmed by the Senate; inferior officers can be appointed by the president alone or by courts if Congress authorizes. The debate over whether US Attorneys are principal or inferior officers is longstanding, but the statute (28 U.S.C. § 546) reflects congressional judgment that at some point, even interim appointments require the Senate's involvement. Haba's tenure exceeded that threshold. The constitutional purpose: the Senate confirmation process is a structural check on executive appointment power, and an indefinite end-run around it — by cycling through successive interim designations — is what the 120-day limit was designed to prevent.
The SCOTUS NIH case split 5-4 — twice, on two different questions, with Justice Barrett on opposite sides. On the money: government can stop paying research grants for now, pay back later if they lose. On the anti-DEI policy changes: district court had every right to review and throw those out. Barrett's distinguishing line: appropriations and contract disputes belong in the Court of Federal Claims. Internal agency policy changes are classic district court.
NIH v. American Public Health Association (25A103) reached the Supreme Court as the APHA sought to protect the district court's preliminary injunction ordering continued NIH grant payments while the underlying case proceeds. SCOTUS issued two rulings, both 5-4, with Justice Barrett providing the deciding vote on both — but on opposite sides. First ruling: the government can stop making NIH grant payments while the case proceeds; if the grantees win, they can be paid back then. The majority's reasoning: the harm is monetary and therefore compensable after the fact. Barrett joined the majority. Bryan noted this was historically a less traditional reading — courts have typically also considered whether the funded entity can survive without money during the wait. Second ruling: the district court had authority to review and overturn the Trump administration's rewriting of NIH grant priorities based on anti-DEI and anti-woke policies. Barrett switched sides, joining the plaintiffs. The distinguishing principle Barrett articulated: questions about whether an agency properly followed administrative procedure in changing its internal policies are classic district court jurisdiction. Questions about appropriations and federal contract payments belong in the Court of Federal Claims — the specialized court for federal money claims. Her message to lawyers: brush up on COFC procedure. Bryan put the opinion in shared docs under SCOTUS Opinions for August.
PI stay standard (irreparable harm — monetary vs. non-monetary)Court of Federal Claims jurisdictiondistrict court jurisdiction over APA policy challengesanti-DEI NIH policy changesSCOTUS emergency docket5-4 splitdeclaratory relief challenging the policy decision.
Constitutional question: The NIH grant case presents a core separation of powers question: Congress appropriated funds for research; the executive unilaterally changed who gets grants based on ideological criteria. The 5-4 majority's allowance of stopped payments during appeal creates a practical risk identical to what the district court flagged — research projects don't survive funding gaps; belated payment doesn't restore abandoned studies or dispersed research teams. Barrett's jurisdiction line is constitutionally significant: it channels executive money disputes into a court designed for them (COFC), while preserving district court authority over the question of whether executive policy changes followed required administrative procedures. These are different constitutional questions — the money question and the process question — and Barrett argued they belong in different forums.
The government responded to Kilmar Abrego Garcia's proposed release plan. Bryan: "It sounds like it was written by the witch from Hansel and Gretel trying to convince you what a great babysitter she is." The government says they won't oppose attorney access — unless he's been deported. In which case, through no fault of their own, they would no longer be in a position to help. We encourage your child to have all the candy and cake they want while they access our special heated spa facilities.
US v. Garcia (25-cr-00115) had a procedural development on August 21: the government filed its response to Kilmar Abrego Garcia's proposed release-and-protection plan. Background from the prior episode: Garcia had filed a motion asking to be released to home confinement in Maryland under private security (the security firm would both protect him and serve as a court accountability mechanism), with conditions including 72-hour court notice before any removal attempt and physical attorney access requirements. The government's response, which Bryan read on air, was notable for what it implied: the government said it would not oppose Garcia having access to his attorneys if he was in immigration custody. But — if he were "removed from the United States to another country" via deportation, the government "would no longer be in a position to facilitate the defendant's access to his attorneys at that point." Bryan's framing: the government was essentially saying it had no intention of honoring the attorney access conditions if it succeeded in deporting Garcia — which is precisely what the conditions were designed to prevent. The "heated spa" comparison captured the bad faith: cooperate with attorney access right up until the moment we successfully ship you out of the country, at which point the warranty is voided. Bryan encouraged viewers to read the filing directly.
Pre-trial release conditionsprivate security as supervision mechanismattorney access rightsdeportation as mooting factor72-hour removal notice
Constitutional question: The Sixth Amendment guarantees the right to counsel in preparation for trial; a defendant who has been deported cannot exercise that right. The government's brief, read carefully, was saying that its willingness to honor attorney access was contingent on Garcia not being deported — which means the constitutional guarantee effectively disappears if the executive exercises its removal power. This is the constitutional problem Bryan flagged across multiple Garcia coverage episodes: the executive cannot use removal power to moot a defendant's constitutional trial rights. The government's framing — "we'd love to help, but once he's gone he's gone" — articulates the very mechanism the vindictive prosecution claim alleged was the plan all along.
A class of Venezuelan nationals had been sent to CECOT in El Salvador. The American courts wanted them out. The president refused to negotiate with foreign governments. The ducks were about to hit the fan. Then: Venezuela and El Salvador did a prisoner swap. All the plaintiffs are now free or about to be. The crisis just — poof. The appeals court dismissed the emergency motions and sent it back to district court. One open question left: if these guys try to come back to the US for their immigration hearings, what is Homeland Security going to do?
J.G.G. v. Trump (25-cv-00766) is a class action on behalf of Venezuelan nationals who were transferred by the Trump administration to CECOT, El Salvador's maximum-security detention facility. The American courts had issued orders aimed at getting the plaintiffs out of Salvadoran custody, but federal courts cannot negotiate with foreign governments, and the president declined to do so. Bryan described the situation as approaching a breaking point — the "ducks were about to hit the fan" — because the mechanism for enforcing the court's orders had run out of options. Then the situation resolved itself: the presidents of Venezuela and El Salvador negotiated a prisoner swap. All the plaintiffs in J.G.G. v. Trump were transferred from CECOT to Venezuela, where they were either free or in the process of being freed. With the plaintiffs no longer in El Salvador, the emergency — extracting them from CECOT — was gone. The Court of Appeals recognized this: it dismissed all the emergency procedural motions related to forcing the federal government to act and remanded the case back to the district court for the underlying immigration proceedings. The immigration hearings can now proceed with the plaintiffs present. Bryan flagged the outstanding question no one had answered: these are people the Trump administration forcibly sent to a Salvadoran prison. If they try to return to the United States to attend their own immigration hearings, what will Homeland Security do when they arrive at the border?
Class action (Venezuelan CECOT detainees)emergency motions dismissed as mootremand to district courtimmigration hearing on returnAlien Enemies Act (underlying authority claim)
Constitutional question: J.G.G. v. Trump had produced some of the most significant due process rulings of the early Trump administration — the Supreme Court had addressed due process notice requirements in CECOT transfers. With the emergency mooted, the constitutional questions now pivot to: do the plaintiffs have enforceable rights to return to the United States to attend their own immigration hearings? The executive's position throughout was that CECOT transfers were valid under the Alien Enemies Act; the district court proceedings will test whether that position can be sustained against individual plaintiffs who are now available to appear and contest it. The Homeland Security question Bryan raised is not rhetorical — it is the next constitutional test in the case.
