Tag: department of justice
US Attorney General Pam Bondi

Pam Bondi Shows How It's Not Done

In her press conference Friday announcing the unsealing of Department of Justice criminal charges against Kilmar Abrego Garcia, Attorney General Pam Bondi put on a clinic—in how to make such announcements improperly.

Bondi overreached grotesquely, in ways that likely violated DOJ, bar association, and federal guidelines, and possibly the U.S. Constitution as well. In her excess of zeal, she tarred Abrego Garcia with external allegations and may well have undermined the prospects for conviction.

This is not Bondi’s first flagrant departure from appropriate conduct in informing the public about DOJ charges. It’s become her M.O. to throw around inflammatory charges against defendants combined with fulsome and legally irrelevant praise of President Trump.

She should, and likely does, know better. In other times, the Department’s disciplinary processes would come down hard on her. But taking a page from her patron, she has also neutered norms and rules designed to rein in abuses. For former DOJ staffers, it’s stunning and deeply disheartening to see the abuses come from the very top, and to witness a kind of bloodthirst for conviction replace the Department’s deep institutional allegiance to the presumption of innocence.

The presumption of innocence is a cornerstone not just of American law but of nearly all evolved criminal justice systems. It is a counterweight to the enormous power of the state and a bulwark against the prospect that the government could use the criminal law to punish opponents and suppress dissent. The idea is encapsulated in the famous maxim of the foundational legal expositor William Blackstone: “It is better that ten guilty persons escape than that one innocent suffer.”

The presumption of innocence requires that prosecutors present their evidence in a court of law according to rules of evidence and other legal safeguards, including the burden of proving guilt beyond a reasonable doubt. It follows that in publicly announcing charges against a defendant—which are not evidence but mere allegations—a prosecutor must restrict herself to the information set out in the grand jury indictment or other charging document, and must scrupulously characterize that information as government contentions, not proof.

That limitation, which is a matter of second nature to a seasoned prosecutor, gives rise to several independent strictures. Violating them potentially carries administrative, disciplinary, judicial, and even criminal penalties.

Among the most serious is the prohibition in the Federal Rules of Criminal Procedure (formally enacted by the Supreme Court with congressional oversight) on public disclosure of “matters occurring before the grand jury.” Once a grand jury has returned an indictment, the set of allegations in that document becomes public, and so a prosecutor may disclose those allegations. But by the same token, she may disclose only those allegations and must make it clear that they are simply allegations and that a defendant retains the presumption of innocence.

Then there are Department of Justice restrictions on media statements in the Justice Manual. These specify, among other things, that a prosecutor may only confirm basic public facts, such as court dates, and can never offer public statements about the strength of the evidence, character of the accused, or likelihood of conviction.

Departures from these DOJ guidelines are subject to discipline by the Department’s Office of Professional Responsibility, which investigates misconduct and makes findings that can lead to various recommended sanctions, including termination.

There are also separate ethical rules administered by state bar authorities that forbid lawyers from making out-of-court statements that present a substantial likelihood of materially prejudicing a proceeding. Those are typically part of state-specific regulatory systems of ethical restrictions. In Florida, where Attorney General Bondi holds her bar license, these include a special requirement that a “Florida prosecutor must refrain from making statements that ‘heighten public condemnation of the accused’ unless necessary to inform the public and serve a legitimate law enforcement purpose.”

Finally, the prohibition on public commentary outside the four corners of the indictment has a constitutional dimension. Courts have suppressed evidence and even reversed criminal convictions for misconduct that violates a defendant’s right to the presumption of innocence—for example, improperly influencing the jury pool.

The transgression, and thus the prospect of court sanction, is greater when the inflammatory statement comes from a high-level government official. As the Fifth Circuit Court of Appeals put it in a case growing out of Hurricane Katrina: “When statements come from high-level government officials such as a United States Attorney, they are more likely to be taken seriously by the press and the public and thus more likely to influence public opinion—and potentially, the jury pool.”

The bottom line, ingrained in the mindset of experienced prosecutors, is straightforward: when announcing criminal charges, stick scrupulously to the four corners of the indictment; emphasize that they are allegations and the defendant is presumed innocent; and never malign the defendant with extraneous incendiary characterizations—for example, by asserting, as AG Bondi did on Fox News in discussing the charges against state court judge Hannah Duggan, that she must be “deranged.”

In this case, the indictment itself—and in particular the conspiracy charge—gave Bondi plenty of material to paint Abrego Garcia in the most sinister terms.

The indictment has a central story, and it's one we've known about for some time. In 2022, Abrego Garcia was stopped by state troopers in Tennessee. He was driving a Suburban and there were nine other passengers, all Hispanic males, in the car with him. He told police that he was transporting the nine from one job site to another. The officers, who recorded the episode on their body cameras, suspected that he might have been transporting undocumented aliens, but they opted to let him go with a warning about an expired license.

That story is the dramatic centerpiece—really the only detailed drama—in the indictment. The rest of the document is cursory and elliptical. But it seeks to paint a picture of Abrego Garcia's criminal conduct that goes very far beyond—in time and kinds of crimes—the traffic stop.

The key is the government’s use of a conspiracy charge. Conspiracy law is a very powerful tool for prosecutors because it provides for liability among all conspirators for the criminal conduct of each of them. It does, however, require the government to prove beyond a reasonable doubt that the defendant agreed to participate in the conspiracy.

Thus, perhaps the key allegation in the whole indictment is in paragraphs 9–10, alleging that Abrego Garcia joined a 10-year conspiracy (from about 2016 to about 2025) to transport aliens within the United States.

That is the linchpin that lets the government load up the indictment with allegations of conduct from unidentified conspirators (CC-1 to CC-6 in the indictment). Some of the allegations have nothing to do with Abrego Garcia; others have nothing to do with the identified goal of the conspiracy.

Paragraph 26 alleges that CC-6 was involved in the killing of more than 50 migrants when the trailer they were in overturned in Mexico. Paragraphs 19–20 detail the money laundering part of the operation by CCs 3, 4, and 5. There is no mention of Abrego Garcia.

Use of conspiracy law to expand a defendant’s liability is fair game. But it depends on proof beyond a reasonable doubt that Abrego Garcia agreed to join the conspiracy. That may prove tricky. The indictment just states—without elaboration—that Abrego Garcia agreed with CC-1 to “work together to transport undocumented aliens for profit and private financial gain.”

The story, however, looks more complicated than that. According to news reports, CC-1 is a man named Jose Hernandez-Reyes, who is serving a 30-month sentence in Alabama for transporting undocumented migrants. He has been granted limited immunity to cooperate against Abrego Garcia. He supposedly told federal officers who visited him in April that he ran a Baltimore-based taxi service for transporting migrants and that he hired Abrego Garcia “on multiple occasions” to do the driving.

That hardly seems like a clear demonstration that Abrego Garcia agreed to join the overall criminal enterprise. It certainly leaves room for argument that he's more like a hired hand who helped out on multiple occasions.

We know that the chief of the criminal division in the Nashville U.S. Attorney's office where the case was brought resigned over the decision to charge Abrego Garcia. He was a career prosecutor who had served for 15 years. That sort of resignation is, first, incredibly rare—or was before the Bondi era—and second, an indication of something possibly very abnormal in the case approval process. Perhaps it was the decision to treat Abrego Garcia as a mastermind leader of the conspiracy with Hernandez-Reyes, rather than an occasional driver.

The bottom line, though, is that the concrete and detailed story of the Tennessee stop stands very far apart from the balance of the indictment, which is fairly flimsy and conclusory. It’s the big leg up of the conspiracy charge that enables the government to use the traffic stop to portray Abrego Garcia as a central player in a longstanding scheme of unlawful transportation of migrants—with stray allegations of gun-running, drugs, and sexual abuse thrown in.

Bondi was asked at the press conference why, since the grand jury had uncovered all the additional information involving guns, drugs, and sexual assault, the government didn’t charge Abrego Garcia with those crimes. This was her complete response: “We were clear to say that he is charged with very serious charges of alien smuggling, and again, there were children involved in that. You know—human trafficking, not only in our country but in our world, is very, very real. It’s very dangerous.”

In his famous speech, “The Federal Prosecutor,” Attorney General (and later Associate Justice) Robert Jackson wrote, “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. The federal prosecutor can strike hard blows, but he is not at liberty to strike foul ones.”

The conspiracy charges against Abrego Garcia strike a hard blow—though, as noted, they may result in problems of proof for the prosecution. But the Attorney General’s remarks at her triumphant, pugnacious press conference repeatedly struck foul ones.

For starters, Bondi leveled wildly inflammatory charges against Abrego Garcia that strayed far from the four corners of the indictment. She asserted that the grand jury found that Abrego Garcia was a full-time smuggler of migrants, not a contractor (“They found that this was his full-time job.”). She said that he made over 100 trips and transported over 1,000 migrants. (Notice these allegations seem to contradict the account of Hernandez-Reyes, who told the feds that Abrego Garcia had driven loads of migrants “on multiple occasions.”) She told the press that the grand jury found that Abrego Garcia solicited nude photographs and videos of minors. She alleged that he had played a role in the murder of a rival gang member’s mother.

The indictment includes not a word about any of these incendiary allegations that indeed do make Abrego Garcia seem like an incorrigible criminal and one of the “worst of the worst,” as Trump has put it. In fact, Bondi’s repeated assertions about what the grand jury “found” are bizarre. Grand juries don’t submit ancillary findings in support of their indictments. All their allegations are contained within the indictment (which, typically, prosecutors draft).

And to the extent Bondi was relying on evidence that the grand jury heard but that did not wind up in the indictment, she would be revealing confidential grand jury information in violation of the Federal Rules of Criminal Procedure. That is the sort of serious transgression that typically results in discipline of the attorney and potential dismissal of the case.

Bondi further peppered her comments with chest-thumping and hammy lines that again just have no place in a media briefing on a federal indictment. She dramatically proclaimed that Abrego Garcia had “traded the innocence of minor children for profit,” whatever that means. When asked what had changed since authorities declined to charge Abrego Garcia for the 2022 traffic stop, she answered, “What has changed since then is Donald Trump is now President of the United States and our borders are again secure,” which manages to be improperly political, nonresponsive, and bananas all at once.

She then asserted that the police work on the Abrego Garcia case had “stopped this international smuggling ring,” but Hernandez-Reyes has been in federal custody since April 8, after being picked up by Border Patrol agents on an unrelated charge. She came back repeatedly to the “disturbing” fact that there were children involved, and detoured to an unrelated case in which MS-13 allegedly groomed young children to be gang members. She said that Abrego Garcia not only had joined the conspiracy but played a “significant” role in it.

Bondi has regularly violated legal, ethical, and internal requirements in her public remarks about federal charges. But the Abrego Garcia press conference reads like an issue-spotter ethics exam for young prosecutors. Virtually every sentence contains one or more improprieties. Any potential juror that heard it, not to mention the public as a whole, would have to have been left with a sinister picture of Abrego Garcia as one of the “worst of the worst” that seems flatly discordant with the available evidence and bears little relation to the actual allegations in the indictment. It’s a truly disgraceful performance.

It’s not hard to discern Bondi’s motivation for splattering mud all over Abrego Garcia. He was the first migrant whom the Trump administration had to admit it had deported by mistake. His case has been the hottest flashpoint in a series of controversial deportations, and he has become the poster child for the Administration’s fecklessness and indifference to its own constitutional violations.

When faced with court orders to return him to the United States, the administration trotted out a series of lousy legal arguments and implausible factual accounts to try to evade their constitutional responsibility to bring him back. But they were only digging an ever-deeper hole for themselves, both in the courts and in public opinion, and their refusal to facilitate his return was becoming untenable.

The government insisted that it couldn’t and wouldn’t bring Abrego Garcia home so many times, that finally throwing in the towel was an embarrassment. The criminal charges are a face-saving measure, and the more they can paint Abrego Garcia as a savage monster, the more they can deflect attention from their own lawlessness and portray Trump as a strongman savior.

If this case goes to trial, I think it's likely that the government’s proof will not match its allegations, starting with Abrego Garcia’s supposed joining of the conspiracy. The cross-examinations of CC-1 and CC-2 figure to be bruising. The defense also has a strong story to tell of vindictive and politicized prosecution, and various ways to make hay of Bondi’s improper public comments.

For those reasons, I think the administration is likely to play hardball and bring all leverage it can to induce Abrego Garcia to plead guilty, probably to the one substantive count based on the 2022 traffic stop. They weren’t able to disappear him permanently into CECOT, but keeping his story—which is mainly a story of governmental misconduct and malice—from coming out would be the next best thing for the Administration. It would prevent Abrego Garcia and the justice system from turning the mirror on the Administration’s skein of overreach, arrogance, and evasion since March 15, when they shipped him to El Salvador by mistake. They would be able to bury the whole ugly mess, keep the most important parts of the story from coming to light, and preempt any efforts to hold the government accountable. That’s a foul blow to democracy.

Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.

Reprinted with permission from Substack.

Pam Bondi

Bondi's Injustice Department Is Abnormal, Authoritarian And Mean

Veterans of the Department of Justice, including me, did our best to sound the alarm bell as the Trump/Bondi regime made clear its plans to do away with the professional norms that have guided prosecutorial behavior for generations.

It was a tricky argument. For the vast majority of people who haven’t served in the department or internalized its virtually hallowed set of operating principles, the panicked cry that “the norms are falling” could be hard to appreciate. It sounds abstract and lawyerly.

But now we are seeing the ground-level results of that demolition, driven by Pam Bondi, Alina Habba, and others. It is enabling the pursuit of cases against political opponents that no DOJ in at least the last 50 years would have touched, while masking the irregularity and unfairness from the American people.


1. The McIver Charges

Take the recent charges against Congresswoman LaMonica McIver (D-NJ). The incident in question took place on May 9, but the real story begins earlier, on March 27, when newly appointed interim U.S. Attorney for the District of New Jersey Alina Habba proclaimed: "We could turn New Jersey red... hopefully, while I'm there, I can help that cause."

For a U.S. Attorney to openly declare her goal of using her office to shift political power is staggering. It’s the precise opposite of her sworn duty to pursue justice without fear or favor—like a doctor swearing to "first do harm."

That statement alone would disqualify her in any prior administration, or at minimum prompt a severe rebuke from the deputy attorney general. Here, it’s simply business as usual in a department whose leader, Attorney General Bondi, has redefined DOJ's mission as serving Trump rather than the Constitution and the law.

Habba (reminiscent of Ed Martin Jr., Trump’s initial choice for D.C. U.S. Attorney) has zero prosecutorial experience, which stands her in poor stead for exercising professional judgment in her new role. Moreover, she has a woeful record of unethical behavior as a lawyer, particularly in her representations of Trump. In the E. Jean Carroll defamation trial, the judge repeatedly reprimanded her for improper conduct, at one point warning her, “You are on the verge of spending some time in the lockup.” She was sanctioned nearly $1,000,000 by a federal judge in Florida for filing a baseless lawsuit against Hillary Clinton. The judge called it “completely frivolous, both factually and legally, and… brought in bad faith for an improper purpose.”

Now to the incident in question. The alleged "assault" McIver committed involved her interfering with federal officers attempting to arrest the mayor of Newark for trespassing. The charges against the mayor were later dropped, and DOJ issued a statement about doing it “for the sake of moving forward” that fooled no one. In reality, Habba had overreached and probably blundered as well: the attorneys for the mayor were about to bring a motion saying that the trespass actually didn't occur on federal land.

Moreover, the arrest was tawdry and nasty: agents handcuffed the mayor and detained him for four hours. In any professional DOJ, he would have received a summons. He posed no flight risk. This was not about law enforcement—it was about humiliating a Democratic official.

The case against McIver appears dubious. Her lawyer, former U.S. Attorney Paul Fishman, called the charge "spectacularly inappropriate." Available evidence suggests the ICE agents lost control during the mayor’s arrest, leading to a general scrum. Afterward, McIver was given a facility tour with the agents—an odd treatment for someone supposedly posing a threat.

There's also a likely legal claim, if and when the case goes to trial, that her conduct doesn't qualify as "forcibly" within the meaning of the assault statute. The Third Circuit (which sits above the District of New Jersey) has held that the law “requires an ability to inflict harm, not merely interference with the performance of a duty… Section 111 is not meant to sweep in all harassment of Government officials.”

Finally, there’s the glaring irony of the prosecution of a congresswoman for pretty mild physical contact with a customs official by the same administration that trivialized far graver physical assaults on federal officers on January 6 by genuine thugs whom they later lionized as heroes.

My best guess is that if this case goes to trial—which I think it will, unless Habba backs down first—McIver will not be convicted, and Habba will be left with a lot of egg on her face.

But the possible bad legal fit is far from the gravest problem with the charges. Let’s stipulate the possibility that McIver is guilty of a technical violation of the assault statute. The critical question for purposes of the case, and for all prosecutions of public officials, is whether charges are warranted, i.e., whether they are comparable to cases typically brought against members of Congress, so that the Department is treating like cases alike.

The Department has a tried-and-true way to figure that out, or at least it did until the Bondi administration came to town. The Department manual specified that any prosecution against a member of Congress had to be approved by the Public Integrity Section of the Criminal Division.

There's a very good reason for that. Prosecutions of political officials are inherently fraught and tempestuous within the local community. The U.S. Attorney, too, is a high-profile official, and the risk that the public, or a good chunk of it, will see such a prosecution as politically driven is high. That's why you need real pros who have a full understanding of the Department's prosecution of political officials to make the final call. The Public Integrity Section ensures professionalism and nonpartisanship.

But under Bondi, the section has been decimated, and the requirement for its signoff erased.

The consequence is an erosion of justice no matter the facts on the ground. What may sound like a technicality is actually a critical safeguard—of justice in the individual case and public confidence in the system as a whole. Remove it, and even legitimate prosecutions lose credibility. It becomes very difficult to rebut the suggestion that Habba has gone after McIver in order to help her bosses' political agenda of "turning New Jersey red."

2. The Cuomo Investigation

A similar set of problems afflicts the investigation of Andrew Cuomo, which became public on Tuesday. We can begin at the top: the interim U.S. Attorney overseeing the investigation is Jeanine Pirro. Pirro ran unsuccessfully against Cuomo for attorney general. She has called him a liar, a political bully, a classic serial predator, and a man with “blood on his hands” for nursing home deaths at the peak of the COVID-19 pandemic.

There is no way that Pirro should be within a country mile of any investigation of a person for whom she has a demonstrable and long-term animus. DOJ ethics guidelines, were they being enforced, would preclude involvement where there is an “appearance of impropriety that could undermine the integrity or impartiality of the investigation."

The alleged perjury at the heart of the investigation arose from Cuomo’s 2020 closed-door congressional testimony regarding his role in a New York State Health Department report on nursing home deaths. The referral came in October 2024. Legal experts across the spectrum thought a prosecution was too difficult and unlikely, and indeed DOJ declined to act on it. But Rep. James Comer (R-KY), a rabid partisan and chair of the Oversight and Government Reform Committee, resubmitted the referral last month. Now the case has been revived, with Pirro at the helm.

Cuomo's attorneys say they were blindsided by the revelation, suggesting the DOJ leaked the investigation. This comes on the heels of the DOJ dropping serious charges against Mayor Eric Adams—Cuomo’s main rival in the upcoming New York City mayoral primary. It looks to all the world that the Administration is not just putting a thumb on the scale; it is jumping on it.

That primary is June 24, putting us well within DOJ’s "60-day rule," which instructs the Department to avoid overt investigative steps that could affect the outcome within 60 days of an election. One more norm bites the dust.

Again, none of this proves that Cuomo is innocent or that the investigation is inherently improper. But precisely because the subject is high-profile and politically fraught, DOJ's own rules demand—or at least they used to demand—regularity and integrity. What’s left without them is the strong inference that the Administration is weaponizing justice for down-and-dirty political motives.

3. The Broader Issue

The problems with the evisceration of norms infect virtually all of DOJ practices. Consider the case of Kilmar Abrego Garcia, mysteriously deported. The administration insists he was a dangerous individual deported by mistake but not unjustly—a no-harm, no-foul scenario.

But, of course, that is not how due process works. As the Supreme Court has made clear, removal from the country requires proper notice and an opportunity to be heard. The President cannot act unilaterally and retroactively assert that the process was fair.

Without those minimum procedural safeguards, the justice of any deportation is unknowable. The American people are left with a sickening conviction that our leaders are perpetrating horrific injustices.

A similar dynamic goes for the politically charged prosecutions. The DOJ’s actions in the McIver and Cuomo cases signal not just prosecutorial overreach, but contempt for the norms that guarantee fairness and accountability.

This is the real cost of the Trump/Bondi/Habba/Pirro regime. The abandonment of longstanding norms gives rise to grievous harms inflicted on real people.

The demolition of DOJ norms may once have seemed academic. But we now can see what the Administration was aiming at in taking a buzzsaw to longstanding DOJ norms. It was replacing impartial justice and constitutional rule with one man’s agenda of power-mongering and vengeance. And that’s about as concrete and pernicious as government power gets.

Reprinted with permission from Substack.

'We Will Not Stand Silent': An Open Letter Against Retaliatory Investigations

'We Will Not Stand Silent': An Open Letter Against Retaliatory Investigations

I'm devoting today's column to words that other people have written. They are very important words—words of the moment and words for the ages.

I don't generally sign onto letters, even those I agree with. My chief concern is avoiding any compromise to my credibility as a journalist. It's not as if it would surprise anyone to know I have views, and even to guess what they might be. (I do think people sometimes guess wrong; I identify as a rule-of-law Democrat, which sometimes leads me to take positions at odds with friends on the left.) But I don't want to give the impression that I have a personal stake in any issue, at least one that I haven't disclosed. I want readers to have complete confidence that I'm giving them my best objective read.

But I did sign a letter that was published over the weekend, and I am proud of it. The letter, which was published in The New York Times, expresses grave concern about Trump’s presidential memoranda disparaging two of his many enemies, Chris Krebs and Miles Taylor—revoking their security clearances and ordering investigations of them by the Department of Justice. All of this was for the essential sin—the newly minted egregious felony—of contradicting the maximum leader.

We have watched as norm after norm, law after law, has been bulldozed by a power-mad would-be tyrant. Many of these actions have harmed millions of Americans. But singling out Krebs and Taylor for investigation and punishment represents a breathtaking descent into the very worst of authoritarian rule. As the letter expresses, “these actions, if carried out, will leave a permanent stain on our institutions and erode our democracy.”

I am honored to be in the company of the signatories, who include legal luminaries and good friends of all political stripes. We say this a lot, but it is both true and urgent, that the existential challenges Trump is posing to the democratic experiment transcend party and policy.

An Open Letter Opposing White House Retaliatory Investigations

We write with grave concern about the two presidential memoranda dated April 9, 2025, targeting Chris Krebs and Miles Taylor, respectively — two former national security officials who served the people of the United States. These executive actions represent a dangerous escalation in the abuse of presidential power: weaponizing federal agencies to carry out personalized retribution against named individuals.

Presidents of both parties have long respected the independence of federal law enforcement and refrained from using the power at their disposal to punish perceived enemies. Indeed, presidents have gone out of their way to avoid even the appearance of impropriety or influence. President Trump’s statements are a profoundly unconstitutional break with this tradition. He is explicitly targeting two Americans because they exercised their First Amendment rights and criticized him. That is a miscarriage of justice which these individuals, and other people and institutions vindictively singled out by him, will be unfairly forced to endure. The president of the United States must not direct federal authorities to investigate people with whom he disagrees.

This is not democratic governance. It is baseless retaliation — and it has no place in the United States of America. Across our history, there have been dark chapters where state power has been weaponized and dissent suppressed, including the crackdown during and after World War I, the Red Scare of the 1950s, and President Richard Nixon’s “enemies list.” These episodes are now seen as shameful deviations from the fundamental American principles of free expression and impartial justice. The April 9 presidential memoranda are an appalling rejection of those bedrock democratic values.

Indeed, the President’s actions not only evoke some of the worst moments in our history; they go even further. For a president to personally and publicly direct the levers of the federal government against publicly named citizens for political reasons sets a new and perilous precedent in our republic. It brings to mind the abuses of power that characterize authoritarian nations, not the United States. No matter one’s party or politics, every American should reject the notion that the awesome power of the presidency can be used to pursue individual vendettas. Behavior of this kind is more to be expected from a royal despot than the elected leader of a constitutional republic. This is the path of autocracy, not democracy.

For these reasons, we urge that the President immediately rescind these memoranda and that agency heads repudiate any order that undermines their oaths, politicizes their missions, or betrays the constitutional principles they are sworn to uphold.

These actions, if carried out, will leave a permanent stain on our institutions and erode our democracy. History will not forget who stood silent. We will not stand silent.

Reprinted with permission from Substack.

'National Security' Claims Justify Trump's Drive For Despotism

'National Security' Claims Justify Trump's Drive For Despotism

At his abomination in the Department of Justice last week, Donald Trump waxed scholarly: "Etched onto the walls of this building are the words English philosopher John Locke said: 'Where law ends, tyranny begins.' And I see that."

He doesn't just see it; he embodies it.

Trump’s administration has pushed relentlessly to exercise emergency powers beyond the normal bounds of the law and to argue that his authority must be beyond review.

The last two weeks have revealed Trump’s chief legal strategy for the outlandish expansion of his own power. Wherever tenable—and in many instances where it isn’t—Trump’s preferred gambit is to argue that he needs outsized and, in any other setting, unconstitutional authority due to emergency circumstances or extreme risks to national security. He aims to leverage legal theory that provides, at least in the minds of certain conservative thinkers, a license for otherwise unconstitutional conduct and, most importantly, a suspension of the normal assumption of judicial review.

Trump’s outlandish invocation of the Alien Enemies Act of 1798 is the latest example. That statute, which grants the President certain powers in times of declared war, invasion, or predatory incursion by a foreign nation or government, has been invoked only three times in our history: the War of 1812, World War I, and World War II.

Trump’s clumsy attempt to use it to justify the arrest and removal of all Venezuelan members of the transnational criminal organization Tren de Aragua shouldn’t even get out of the gate. The group is not a foreign nation or government. Trump’s proclamation says, without support, that the group is acting at the direction of the Venezuelan government, but so what? Neither the text nor the spirit of the act remotely supports what Trump is trying to do with it—namely, fight an international drug cartel.

Chief Judge Jed Boasberg had little trouble swatting away the argument. Boasberg wrote that the AEA "does not provide a basis for the president's proclamation given that the terms invasion, predatory incursion really relate to hostile acts perpetrated by any nation and commensurate to war."

The Administration’s arguments in the AEA case are part of a much broader theme. Trump is repeatedly citing existential threats to our national security in order to assert insanely broad powers while restricting the ability of the courts to second-guess him.

It’s essentially the same argument he’s using to blackball law firms that have represented his enemies. Trump’s orders assert that these firms have engaged in “dangerous activity” that poses security risks to the nation. He argues that the firm representing Hillary Clinton during the 2016 campaign “undermin[ed] democratic elections, the integrity of our courts, and honest law enforcement,” and engaged in racial discrimination.

It's one lie after another, of course. And Beryl Howell, the judge who looks to be on a glide path toward invalidating that order (she has, for now, blocked it from going forward while she decides), told it true: the order was driven by “retaliatory animus” and “casts a chilling harm of blizzard proportions across the legal profession.”

But the argument from Trump’s Department of Justice—in fact, from the chief of staff to Pam Bondi—leaned heavily on the national security angle to insist that a court could not second-guess the President’s determination. Combine that idea with Trump’s unprecedented, sociopathic willingness to brazenly lie, and you have a formula for despotism. Under this framework, anything or anyone Trump suggests might harm national security, he can deal with as he likes, and the courts cannot second-guess him.

That line will get the administration nowhere with Judge Howell, but they’re looking beyond her to the U.S. Supreme Court. It's a frightening prospect. It’s not hard to posit that three or four justices might get behind the idea that the judiciary can’t second-guess the president’s good faith. It would be an Alice in Wonderland-type opinion—on the order and scope of the immunity decision—and it would leave Trump with nearly an open field to do whatever he wanted in the name of national security.

Trump is pursuing the same strategy at the border, where he has declared an emergency that greatly enhances his legal authority. But there is no emergency—just overheated Trumpian rhetoric.

The same basic approach drove the disappearance—without due process—of Mahmoud Khalil, a green card holder married to an American citizen. He was detained based on Secretary of State Marco Rubio’s extraordinary attestation that while Khalil had committed no crime, his presence in the U.S. could have potentially serious adverse foreign policy consequences.

In short, this is an emergency-happy administration. Its broad aim is clearly to curtail or nullify constitutional protections under cover of unreviewable authority.

This approach is not new. It’s a well-established authoritarian strategy. Hungarian Prime Minister Viktor Orbán, increasingly the most apposite model for democratic decline under Trump, declared a “state of danger” based on the Ukraine war to bypass Parliament. Stalin justified his purges as essential to quell “counter-revolutionary threats.” China frames its mass internment of Uyghur Muslims as a necessary counterterrorism measure.

What are the odds, do you think, that Trump has ever read a page of John Locke? (Or that he would write a sentence beginning with the lyrical words, “[e]tched onto the walls of this building”?)

But Locke is the chief source of the idea that a President must have power—what he termed the “prerogative”—to act outside the law for the ultimate public good during times of existential crisis for the country. The classic scenario for discussion in a college political science class would be whether the executive could break the law and torture an enemy if it were the only way to prevent a nuclear attack.

It makes me wonder whether there’s a new Ken Chesebro or John Eastman in the White House, cooking up half-baked schemes for Trump to grab authoritarian, anti-constitutional powers on the premise that, as he posted last month, “he who saves his country does not violate any law.”

Not surprisingly, all of this represents a gross misreading of Locke’s teachings in Second Treatise of Government. Locke, in fact, was insistent that while emergencies arise requiring action outside strict legal boundaries, leaders who transgress legal bounds must be held to account—for example, by acknowledging the transgression and resigning their office.

More generally, Locke recognized that the concept of emergency powers was dangerous because rulers could exploit it to act against the interests of the people. In that instance, Locke teaches that the people have the right to overthrow the government.

Contemporary thinkers such as Michael Walzer have elaborated on the idea that leaders who exercise emergency extra-legal powers must be held accountable.

We are on a knife’s edge of autocratic rule this very week, with the administration’s attempt to use the Alien Enemies Act. Here is how Attorney General Bondi responded to the opinion by Chief D.C. District Judge Jed Boasberg, who commands enormous respect on both sides of the aisle:

“Tonight, a D.C. trial judge supported Tren de Aragua terrorists over the safety of Americans. TdA is represented by the ACLU. This order disregards well-established authority regarding President Trump’s power, and it puts the public and law enforcement at risk. The Department of Justice is undeterred in its efforts to work with the White House, the Department of Homeland Security, and all of our partners to stop this invasion and Make America Safe Again.”

Bondi’s demagoguery here is worthy of Joe McCarthy. (You’ve got to love that freestanding second sentence: The group is ‘represented by the ACLU.’) It refers to “well-established authority” where there is none; it offers incendiary rhetoric about putting the public and law enforcement at risk (which is pretty rich considering the January 6 pardons); and it parrots Trump’s lie that the country is under invasion.

The Department has the next hearing in the Alien Enemies case Friday, when Judge Boasberg will surely be interested in learning how the administration spirited away hundreds of immigrants after he had ordered them not to do so—including, if necessary, turning around planes already in the air.

The Administration has been less than clear about its basis for countermanding the court. It seems to have settled on a rationale that the planes were already outside U.S. territory, but that would not justify its refusal to comply with the court order.

The focus for us to maintain in the hearing before Boasberg and the request to the Court of Appeals for the D.C. Circuit for emergency relief from Boasberg’s order is the extent to which the Administration tries to argue that Trump’s actions can’t be reviewed at all. Acceptance of that principle in broad, especially by the Supreme Court, would amount to legal acquiescence in authoritarian rule, just as happened in Hungary. On the other hand, if the courts, including the Supreme Court, stand firm and shoot down Trump’s unlawful claims, it will then serve up the question of this administration’s willingness to disobey the courts and initiate a full-fledged constitutional crisis.

Reprinted with permission from Talking Feds

Harry Litman is a former United States Attorney and the executive producer and host of theTalking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing toTalking Feds on Substack.


Shop our Store

Headlines

Editor's Blog

Corona Virus

Trending

World