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An Existential Moment Of Truth Arrives For The Supreme Court

An Existential Moment Of Truth Arrives For The Supreme Court

Don’t look now, but we have suddenly arrived at an existential moment for the country, in the form of an emergency application from the Administration to the Supreme Court. In the coming days, the Court will either grant Trump powers that he could use—without exaggeration—to bring down constitutional rule, or it will stand up for the principle that the courts needn’t roll over in response to patently false claims from a would-be tyrant.

The justices have before them an emergency application—yes, another huge question to be decided on the shadow docket—in Trump v. Illinois. The case asks whether the president can invoke “emergency powers” to deploy troops on American soil whenever he declares that local law enforcement can’t handle a situation or that a “rebellion” exists. If the Court accepts that claim, it will have opened the door to a presidency unbound by fact, law, or judicial review—one able to fabricate crises and use them to consolidate power.

That may sound theoretical. It’s not. A ruling in Trump’s favor would give legal cover to the most dangerous play in his authoritarian playbook: declaring a manufactured emergency and using federal troops to interfere with the 2026 election—stationing them at polling places, seizing voting machines, or detaining election officials under the pretense of “protecting” the vote. Once the Court consecrates an invented emergency as a lawful one, there’s no obvious way back.

The Illinois case is one of two mirror-image cases quickly working their way up the federal courts. The other is the Portland case, in which Judge Karin Immergut, in an opinion I’ve analyzed and extolled at length, held that even applying a high standard of deference, the Administration’s claim of a “rebellion” justifying federalization of the Guard was simply “untethered to the facts.” Ditto for its assertion that normal law enforcement was “unable…to execute the laws of the United States.” Immergut explained that courts needn’t—indeed, may not—give effect to a presidential determination unless it reflects at least a “colorable assessment of the facts and law within a range of honest judgment.” Otherwise put, “a great level of deference … is not equivalent to ignoring the facts on the ground.”

A divided Ninth Circuit panel—both Trump appointees in the majority—reversed Immergut’s opinion on Monday. The majority ignored its obligation to review Immergut’s factual findings only for clear error—a phrase it did not even mention. Instead, it just declared that Immergut “substituted [her] own determination of the relevant facts and circumstances.” It’s a bizarre criticism that finds no support in Immergut’s careful analysis. The majority also took Immergut to task for not considering the record of violent episodes from previous months. But the statute calls for the president to make a finding of the present conditions.

One of the judges in the majority wrote a separate concurrence to argue that the president’s determination was not subject to any judicial review. Whether a rebellion exists, he argued, is a “political question.” That’s nonsense. Courts interpret statutory terms every day. Determining whether the factual predicate for a statute exists is bread-and-butter judicial work.

More generally, this complete-deference argument relies on a patent misreading of early 19th-century cases, as Steve Vladeck has conclusively demonstrated. But the argument could nevertheless rise from the dead in the Supreme Court case, where it appears as the Administration’s first submission.

That brings us to the dissent of Judge Susan Graber, which fairly shredded the majority. She pointed out that in the two weeks leading up to Trump’s finding, there was not a single incident of protesters—who numbered fewer than 30 in a single city block—disrupting the law. It was sheer fiction for the Administration to claim that it was unable to execute the laws. And the sporadic and uncoordinated criminal conduct did not “amount to a ‘rebellion’ under any reasonable definition of the term.”

In her conclusion, Graber eloquently laid out the stakes of the majority’s missteps. She assailed her two colleagues for “abdicat[ing] our judicial responsibility, permitting the President to invoke emergency authority in a situation far divorced from an enumerated emergency.” And she brought it back to first principles: “Except in true emergencies, and by design of the Founders and Congress, our civil society resolves its disputes without domestic military intervention.”

In a memorable final passage, she appealed to the rest of the Ninth Circuit to “swiftly vacate the majority order before the illegal deployment of troops under false pretenses can occur.” Then, addressing the public directly, she wrote, “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little while longer.”

Trump v. Illinois, the case the Supreme Court has now accepted on emergency application, is essentially the mirror image of the Portland case. The Administration is making the same set of claims to justify emergency powers under a statute that restricts them to cases of rebellion or the inability of the U.S. to enforce its laws.

The factual record in Illinois is almost a carbon copy of Portland. The supposed “rebellion” consisted of small, peaceful protests outside a suburban ICE facility. State and local police responded to every call. There was no collapse of law enforcement, no crisis of governance.

As the Seventh Circuit held in largely affirming the district court’s temporary restraining order, “political opposition is not rebellion”; rebellion involves “deliberate organized violence to resist governmental authority.” Critically, the Seventh Circuit held that “nothing in the text [of §12406] makes the President the sole judge of whether [its] preconditions exist.” And on the all-important deference question, the Seventh Circuit adopted essentially Judge Immergut’s position: it applied “great deference” to the Administration’s view of the facts but held that even so, there was insufficient evidence for the Administration’s claims.

So the issue is clearly teed up for the Supreme Court. And based on the routine, near-categorical support the president has gotten from the conservative supermajority, it’s a deadly serious and frightening crossroad. Will they recognize the gravity of the moment and comprehend their historic opportunity—and thus obligation—to stand up against tyranny? The record of the last ten months gives rise to grave concern on that score.

If the Supreme Court sides with Trump, the consequences will extend far beyond Illinois or Oregon. It would create a self-executing theory of emergency power: the president declares a crisis, the courts defer, and the crisis becomes real by virtue of that deference.

That power would not remain confined to immigration protests. In Trump’s corrupt hands, it almost certainly would metastasize into every realm of public life. A surge in voter turnout could be branded a “threat to federal election integrity.” A protest at a state capitol could be labeled a “rebellion.” A local police department’s restraint could be called an “inability to execute federal law.” Each claim would justify troops in the streets.

And worse, all of this would happen through the shadow docket. That opaque process, once reserved for routine stays, has become the Roberts Court’s tool for quietly transforming American law. Immigration, voting rights, pandemic powers—all have been rewritten in the shadows.

If the justices follow the same approach here, they could effectively anoint Trump with unreviewable emergency powers—without ever issuing a full opinion on the merits.

Judge Graber’s dissent ends with that aching phrase: “retain faith in our judicial system for just a little while longer.” She meant faith not as blind trust but as a wager—that the judiciary still has the courage to check power when power lies.

That faith is now being tested in real time. The Supreme Court can still reaffirm the principle that facts matter and block Trump’s Orwellian effort to manufacture emergencies based on lies. Or it can force the country down the path of blind deference to a serial liar and despot, permitting the president to exercise outlandish emergency authority and turning a blind eye to the blaring neon fact that he’s making it all up.

Should the Court rule for Trump, the damage will not stop in Portland or Chicago, because Trump will not stop there. He will run roughshod with that power over many aspects of American life, and most ominously, seek to use it to interfere with free and fair elections, as he tried unsuccessfully to do when he lost to Biden. So yes—retain faith, if you can. But faith alone won’t carry the day. Only judges who still believe that law means something—and have the courage to say so—can.

If the Court squanders that faith now, there may be no “little while longer” left to reclaim it.

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 Talking Feds.

Former Special Counsel Slaps Back At Trump Gang's 'Ludicrous' Accusations

Former Special Counsel Slaps Back At Trump Gang's 'Ludicrous' Accusations

Last week brought the sighting of an endangered species—the professional federal prosecutor. After months out of view, former special counsel Jack Smith reappeared in a public interview in the U.K.

His conversation with fellow DOJ alum Andrew Weissmann came just as the Department has descended into rank betrayal of its own creed—justice without fear or favor, or politics. The recent indictments of Jim Comey and Letitia James, and reports that a grand jury is expected to indict John Bolton, leave little doubt that a once-honorable agency has fallen into a cesspool, with no credible path back so long as Trump is president.

It also followed on a ridiculous performance at an oversight hearing by Pam Bondi, who was perfectly nonresponsive and dripping with contempt—and came amid the House Judiciary Committee’s preparations under Chair Jim Jordan to subpoena Smith to testify in closed session.

That may help explain why Smith chose this moment to break his post-DOJ silence, knowing—as he must—that he is about to enter a sinister hall of mirrors, facing hostile Trump allies eager to mangle his words to fit into pre-formed talking points.

Bondi, Jordan, Trump, and others in Trump’s circle have been chanting the same mantra as if repetition could make it true: that the Biden administration “weaponized” the Department of Justice and that Trump has somehow re-righted the ship of justice.

Weissmann teed up that charge directly, and with quiet composure and a slightly raised voice, Smith gave his answer in a single word: “ludicrous.”

The charge is indeed ludicrous—but it’s also far worse. For DOJ veterans who know how the place has long operated, watching the wrecking ball that Bondi, Bove, Blanche, and company have swung through it over these past eight months is heartbreaking.

There’s a simple way to test their slanderous claims: the twin pillars of federal prosecution—the law and the facts. With limited nuance, a righteous case is one where it both establishes guilt and makes conviction reasonably likely.

That was true, for instance, of Mayor Eric Adams of New York City. Bove’s insistence that the Department lie and dismiss the case prompted the resignations of the Manhattan U.S. Attorney, the lead prosecutor, and at least three top supervisory officials in the DOJ’s Public Integrity Section. Once considered the crown jewel of the DOJ, the section has been gutted to the point where only two of the 30 prosecutors there when Trump took office remain.

That corrupt command foreshadowed what was to come. It’s unjust to abandon a righteous case, but as the adage goes, better ten guilty go free than one innocent be convicted.

Which is exactly where we are now. Trump’s DOJ brings cases against his enemies because they are his enemies. It’s the ultimate corruption—prosecutions as political reprisal, debasing American justice to the level of authoritarian regimes.

This isn’t a judgment call; it’s an iron fact. A recent survey by Emily Bazelon and Rick Hasen of fifty top D.C. lawyers—many former DOJ officials, Republicans and Democrats alike—found unanimous agreement: Trump and Bondi are using the Department to target political foes and reward allies.

That brings us back to Bondi and company. They shout that the Biden DOJ was weaponized, but are unable to point to a single prosecution unsupported by law and fact. And that’s because there wasn’t one. They may grumble and wave in the direction of the January 6 or Russia interference prosecutions, but apart from the identity of the defendants (which cuts the other way), those prosecutions plainly were handled with the care and professionalism that was once the unspoken standard of the DOJ. As Jack Smith reminded us—by word and bearing—that was the Department’s inviolable ethos.

The only thing behind their cynical claim is the identity of the defendants, starting with Trump. But justice without fear or favor not only permits but requires applying the law equally to rich and poor alike; it’s part of every prosecutor’s oath.

Nor do you have to have unquestioned faith in the pre-Trump DOJ to see the patent falsity—in a word, the ludicrousness—of the Republican attack-squad claims. We all watched the events that gave rise to the first U.S.A. v. Trump on January 6. The necessary implication of the weaponization line is that the DOJ and FBI should have watched the marauders’ brutality toward police officers and crazed efforts to stop the vote counting and decided to do nothing.

Herein lies the righteous fury of DOJ alumni. Trump’s repetition and vitriol are an effort to induce national amnesia about his crimes after losing the election. We have to remember clearly—and remind others—that Smith’s prosecutions, including Mar-a-Lago, were the opposite of weaponized: a massive, principled effort in defense of the Republic. The investigation of senators’ phone records, now smeared as “spying,” was a lawful, orthodox step to reconstruct the evidence of that woeful day.

Smith’s remarks, and the Department’s vilification of him, pose the question that should haunt us: What if DOJ had done nothing in response to the insurrection? Imagine the message—“Move along. Nothing to see here.” The outrage would have been national, and rightly so. We saw the insurrection with our own eyes. Refusing to prosecute it would have been a betrayal of the Constitution itself.

And it’s even more offensive to pair that false “weaponization” claim with the notion that Trump’s DOJ is now “by the book,” when it has discarded the Principles of Federal Prosecution and aligned with the priorities outlined in Project 2025.

It’s pure Orwell: truth is fiction.

The lies about his cases are only the beginning of the vicious treatment Smith has had to endure. He and Weissmann talked about the purging of his whole team—the hand-picked best of the best—for the sole reason that they worked with him. As he was throughout, Smith was unruffled and dignified; he praised the team to the stars and expressed confidence it would work out for everyone. But it has to be a particular sort of pain to see your loyal cadre vilified and forced out of government and not to be able to do anything about it.

In any legitimate legal system, bringing a case for political reasons would be a fireable offense. In Trump’s DOJ, refusing to is.

For those of us who’ve worked inside the Department of Justice, seeing Smith was like glimpsing a visitor from a lost world where the moral compass of federal prosecution still pointed due north.

What struck me most in his remarks wasn’t the content. Former DOJ’ers could have written his talking points in advance. It was his bearing—his quiet assurance that justice must remain separate from politics and that, in the DOJ to which he dedicated much of his professional life, it did.

Contrast that calm composure with Bondi’s histrionics at the oversight hearing. If you played both tapes side by side with the sound off, it would be apparent who was telling it straight and who wasn’t.

That’s why Smith’s tone—precise, almost understated—was so affecting. He wasn’t defending himself so much as defending what it means to be a federal prosecutor. Every sentence reaffirmed the moral geometry of the old DOJ: dispassionate evaluation of evidence, respect for institutional guardrails, modesty before the awesome power of the state. He might as well have been reading from the Department’s handbook—except that the handbook has now been burned.

It was poignant to watch him speak so quietly about truths so obvious. But it was also clarifying. The battle for the DOJ’s soul is no longer theoretical. It’s happening in real time, and the forces of good are getting swamped.

For now, corrupt hands hold the reins at the Department of Justice. Unconstitutional conduct—beginning with reprisal prosecutions—is the modus operandi of federal law enforcement. But even during what we can hope is a temporary suspension of justice without fear or favor, we must call out Trump’s perversion of the Department while defending the integrity of the institution he inherited. If Trump’s Orwellian characterization of the Department’s history gains purchase, the rule of law itself becomes the fiction.

The current DOJ’s version of justice is an inversion of everything the Department once stood for—and unless we confront it head-on at every turn, ludicrous will soon feel far too gentle a word.

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 Talking Feds.

Letitia James

Irredeemable Justice: Letitia James' Indictment Tolls The Depth Of Corruption

With the indictment of former FBI Director Jim Comey—on spurious charges, against the judgment of career prosecutors, and solely to satisfy the President’s personal vendetta—the Department of Justice crossed over to a new low.

But now, with the indictment of New York Attorney General Letitia James—and more reprisal indictments on the immediate horizon—it’s become clear that the corrupt abuse of the law to go after Trump’s adversaries is a principal mission of this Department of Justice. Far from a one-off, it’s the Department’s new business model.

I’ve explained before why bringing cases at the President’s insistence—not as acts of justice, but as political reprisals against his enemies—is as abhorrent a violation of the Constitution and DOJ norms as we’ve ever seen. It offends both the First Amendment and the Due Process Clause, flouts the Principles of Federal Prosecution that have served as the bible for federal prosecutors for generations, and betrays the most basic notions of impartial justice in any democracy.

Any prosecutor knows this to her marrow. It is the literal antithesis of the DOJ’s watchword of justice without fear or favor. That principle used to separate us from the corrupt justice systems that serve the personal whims of tyrants like Vladimir Putin and Recep Tayyip Erdoğan.

Our history has seen a few instances of presidents targeting citizens out of personal animus—Richard Nixon’s bitter obsession with Daniel Ellsberg comes to mind, which in fact became the genesis of Watergate. But none of them remotely approaches the open and shameless campaign Donald Trump has launched: a series of directives to his Justice Department, backed with the threat of discharge, to indict his enemies for no reason other than that they are his enemies.

Exhibit A (and it will literally be that in upcoming motions in both the Comey and James cases) is Trump’s own “private” message to Attorney General Pam Bondi, which he accidentally made public. It built to a frothing conclusion:

“We can’t delay any longer—it’s killing our reputation and credibility. They impeached me twice and indicted me (5 times!) OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

“Justice,” in Trump’s hands, plainly means punishment—punishment through the corrupt use of the criminal system—because these perceived antagonists brought righteous cases against him. In other words, they did their jobs and followed their oaths.

A recent survey by Emily Bazelon and Rick Hasen of fifty top D.C. lawyers—many former senior DOJ officials and evenly divided between Republicans and Democrats—found complete unanimity: every single respondent believes that Trump and Bondi have used the Department of Justice to target political enemies and reward allies.

Every single one.

As one respondent put it, “[w]hat’s happening is anathematic to everything we’ve ever stood for in the Department of Justice.”

Every single one. It’s beyond stunning—and for alumni of the Department, beyond heartbreaking.

There isn’t another side to the argument. Every actor in the system—from defense attorneys to Justices on the Supreme Court—recognizes what is happening. The only question is how the criminal justice system should respond.

The specifics of the James case are almost comically small-bore. James is charged with falsifying mortgage or rental information on a handful of forms—or at least, that appears to be the charge. As with the Comey indictment, the actual document is so elliptical as to be baffling. Both are sketchy and amateurish by DOJ standards, particularly for cases against such prominent defendants.

The apparent core allegation is that James bought a home for her great-niece to live in with a mortgage loan requiring her to use the $139,000 three-bedroom house as a secondary residence, not a rental property, but that she later treated it as an investment.

Even taken at face value, the claims are thin, and intent in particular will be hard to prove. The great-niece reportedly testified to a Norfolk grand jury that she has lived in the house rent-free the entire time. Yet the grand jury that U.S. Attorney Lindsay Halligan hastily convened last week never heard from her.

More generally, because of contradictory statements on different forms and labyrinthine lending regulations, the government will have a hard time proving intent—that James knowingly engaged in a “scheme to defraud” by misrepresenting the property’s use.

Courts have interpreted the intent requirement stringently, as requiring that the defendant knowingly engaged in a fraudulent scheme and specifically intended to deceive or cheat a financial institution in order to obtain money or property. With the cross-cutting evidence and confusing body of regulations, that’s a real hurdle.

But considering the difficulties of proof is really beside the point. The deeper issue isn’t evidentiary at all—it’s constitutional.

Even if we assume, for argument’s sake, that somewhere in the sheaf of mortgage documents there is a single false statement, and that the government could somehow prove it beyond a reasonable doubt, the critical legal point remains: it doesn’t matter.

That’s because a selective prosecution is a constitutional violation that requires dismissal, without regard to whether the government can prove a crime.

Under the Supreme Court’s two-part test, selective prosecution requires showing (1) that the defendant was singled out from among similarly situated individuals, and (2) that the decision was driven by an impermissible factor such as politics or personal reprisal.

Notice that the test does not depend on the strength of the case. The constitutional injury—the violation of due process and First Amendment rights—is the same either way.

By that measure, James’s claim is, if anything, even stronger than Comey’s.

On the first prong, prosecutions for perjury of Comey’s alleged sort are vanishingly rare, leaving the standards amorphous. The administration can at least argue that Comey’s prominence warranted heightened scrutiny.

Not so with James. U.S. Attorney’s Offices have limited resources and prosecute only a fraction of chargeable cases. Each office maintains guidelines setting a minimum threshold of loss or harm before a case merits prosecution. Even accepting the government’s theory in full, James’s case would involve a loss of just $18,000—the difference between the mortgage rate she obtained and what she supposedly should have paid. That is pocket change in federal terms, far below DOJ’s own charging thresholds. Such irregularities, if pursued at all, are resolved administratively, not criminally.

That makes the first prong of James’s claim mathematically airtight: others who allegedly commit comparable “frauds” are not charged.

And that leads directly to the second prong—motive. There has to have been some reason beyond the merits that James was charged.

The Comey indictment provides that reason. It shows that political reprisal has become the DOJ’s new organizing principle. Every fact demonstrating the impropriety of the Comey case applies with equal force here. In James’s case, the animus is even clearer: years of vitriolic attacks from Trump and his allies calling for her prosecution—rhetoric that began nearly a decade ago.

Every selective prosecution, apart from working a horrific injustice on the defendant, corrodes public faith in equal justice and leaves an indelible stain on the Department of Justice. When citizens see the criminal code wielded as a political cudgel, they lose faith not only in a single case but in the justice system itself. That cynicism may prove the most lasting damage of all.

Letitia James will very likely beat these charges—the case is weak, sloppy, and above all brazenly political. But the rank, corrupt misuse of the federal prosecutorial power exacts a cost even if the courts do the right thing.

The integrity of the Department of Justice is a core aspect of the rule of law. It now has been shattered, and the collateral damage to the rule of law itself is inevitable.

Not that Trump cares a farthing about any of that. He will keep skating from one wrecked case to another, claiming vindication or shifting blame as each collapses. He’s already extracted a pound of flesh—the anxiety, the reputational hit, the legal bills. For his enemies, that’s punishment enough.

Bondi and Halligan, though, may not skate so easily. They hold law licenses that obligate them to uphold ethical rules they’ve shredded beyond recognition. When the dust settles, their reckoning may be the only justice left standing.

The Framers’ Warning

The Founders foresaw this danger. Madison warned in Federalist 51 that the greatest threat to liberty would come not from foreign invasion but from “the accumulation of all powers, legislative, executive, and judiciary, in the same hands.” The Constitution’s structure—its separation of powers and independent judiciary—was meant precisely to forestall what Trump is now attempting: the conversion of the machinery of justice into a personal weapon of vengeance.

Hamilton, in Federalist 65, defined “the abuse or violation of some public trust” as the essence of political corruption. What greater abuse could there be than a President turning the criminal law into a means of retribution, and prosecutors into instruments of fear?

That is the terrain where the country now lives.

It’s also the territory leading in a straight line from constitutional rule to tyranny. The instances of democratic backsliding in the last 100 years predominantly begin not with tanks in the streets, but with the exploitation of legal mechanisms, transformed corruptly into instruments of power and vengeance for the personal benefit of a strongman tyrant.

The Department of Justice, once lionized as a bulwark against tyranny, has now been recast as tyranny’s first instrument. As all-in as Bondi, Halligan, and the rest have gone on Trump’s reprisal agenda, the Department is now beyond redemption. It falls to the rest of us—lawyers, judges, and citizens alike—to fight to restore the boundaries that the administration has annihilated.

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 Talking Feds.

'Untethered To Facts': How Portland Exposes Trump's Fake 'Emergencies'

'Untethered To Facts': How Portland Exposes Trump's Fake 'Emergencies'

District Court Judge Karin Immergut’s adroit opinion blocking the administration’s plan to deploy National Guard troops to Portland offers a model for how courts should handle the Trump administration’s many assertions of “emergency power.” The opinion is low-key but precise and judicious, and it points the way out of a legal thicket that has been growing denser with every new assertion of presidential emergency power. Most importantly, Immergut, a Trump appointee, insists on a critical constitutional truth in the age of Trump—one that other courts have yet to express: deference is not the same as blind acquiescence.

The case forced Immergut to confront the central pathology of the Trump era. Trump’s pattern of invoking “emergencies” has been prolific—and consistently mendacious. He has lied about imaginary “invasions” at the southern border, about “crime waves” in the District of Columbia, about fentanyl “floods,” and immigrant “armies.” Now he has invented a supposed “rebellion” in Portland to justify sending in troops under 10 U.S.C. § 12406—a statute that allows federalization of the National Guard when there’s an invasion, a rebellion, or when the President is unable, with the regular forces, to execute the laws.

Immergut, who lives in Portland, coolly explained that there was no insurrection. Portland was not “war-ravaged.” Protesters were not “domestic terrorists.” Local law enforcement was fully capable of handling the scattered incidents that did occur.

Trump has been prodigal in invoking “emergencies”—at the border, in cities, even in cyberspace—but nearly all have rested on transparent falsehoods. There has never been an “invasion” of marauding migrants, or a fentanyl “siege,” or a crime wave in Washington sufficient to justify federal deployment. Each supposed emergency has been a pretext for asserting powers Congress never gave him. The pattern is as consistent as it is brazen: declare a crisis, invent the facts to match, and dare the courts to stop him.

That poses a unique problem for courts. The judiciary has long applied doctrines of deference to the executive branch, giving “respectful weight” to the President’s factual determinations in national security or emergency contexts. The rationale is sound in principle: judges are not generals or intelligence officers, and they traditionally assume the President acts in good faith to “take care that the laws be faithfully executed.”

Trump has laid waste to that principle with his brazen willingness to serve up lies in patent bad faith. That reality changes the meaning and application of deference to the executive. It’s one thing to respect a president’s reasoning; it’s another to swallow the sensational fabrications of a carny.

Judge Immergut inherited a tricky legal backdrop. In State of California v. Trump, Judge Charles Breyer in the Northern District of California had earlier struck down Trump’s invocation of emergency powers to fund the border wall. Breyer found the statutory predicates unmet and the “emergency” itself fictitious. But a Ninth Circuit panel stayed—and later reversed—his TRO, in a terse opinion emphasizing a ‘highly deferential’ standard and leaving its limits unclear. Immergut met that fuzzy command with clarity, modesty, and backbone.

As in the Breyer case, the administration argued that the President had determined that Portland met § 12406’s criteria and that courts must defer to that determination. The implicit argument was that judges must bless even the most fantastical presidential claims so long as the word “emergency” appeared in the proclamation. Immergut refused to take that bait.

She began with the facts on the ground and their stark contrast with Trump’s hysterical assertions. Oregon and Portland had shown, she wrote, “substantial evidence that the protests at the Portland ICE facility were not significantly violent or disruptive.” The federal defendants, by contrast, produced nothing resembling proof of rebellion or organized resistance to federal law. “Sporadic violence,” she noted, “is not the same as a rebellion.”

Turning to the administration’s claim that Portland faced a “rebellion” or “danger of a rebellion,” her conclusion was unsparing: the President’s determination “was simply untethered to the facts.”

That phrase—“simply untethered to the facts”—is a gem. Immergut doesn’t rage or sermonize; she simply compares Trump’s public statements about “mobs,” “agitators,” and “paid radicals” with the actual record before her. The gap is abyssal. Her refusal to indulge the fiction is, in itself, a quiet act of civic courage.

The heart of the opinion comes when she addresses the administration’s inevitable fallback—that courts owe the President broad deference. She agrees, up to a point. A “great level of deference,” she writes, is indeed due to the executive’s factual determinations in matters of security. But deference does not mean ignoring the facts on the ground. Courts, she continues, must ensure that a presidential determination “reflects a colorable assessment of the facts and law within a range of honest judgment.”

That is the key sentence—the one that should echo in every courtroom and chamber of the appellate bench. It reclaims deference from the edge of abdication. It draws a clean, bright line between a reasonable mistake and a deliberate falsehood. “The President’s determination,” she concludes, “was simply untethered to the facts”—that is, conceived in bad faith. Immergut doesn’t say “liar.” She doesn’t have to. The entire structure of her reasoning spells it out. She treats truth as the baseline condition for judicial respect. Without it, “deference” collapses into blind obedience.

Deference, she reminds us, exists within a tripartite system in which the executive has a reciprocal duty to respect judicial determinations. Trump and his aides plainly do not share that understanding. He insulted Immergut, saying she “ought to be ashamed of herself,” and doubled down on his fantasy tableau: “Portland is burning to the ground… all you have to do is turn on your television.” Stephen Miller, comically pompous as ever, took it further, calling the decision “one of the most egregious and thunderous violations of constitutional order we have ever seen.”

Far worse than the rhetorical attacks, the feds appear to have ignored Immergut’s ruling altogether. She convened an emergency hearing Sunday night and told DOJ lawyers that the President was “in direct contravention” of her order. She then stiffened the terms to bar “the relocation, federalization, or deployment of members of the National Guard of any state or the District of Columbia in the state of Oregon.” A fight is clearly brewing.

Immergut’s opinion arrives at a perilous moment. Trump has discovered that “emergency” is a magic word—one that can turn lies into legal justifications and personal will into governmental authority. If courts yield reflexively, he can continue to conjure crises out of thin air and claim martial powers to address them. Most ominously, he could try to play that card in the context of the midterms, proclaiming an emergency that lets him interfere with the machinery of democracy itself.

But Immergut’s approach shows how the judiciary can resist without crossing into partisanship. She doesn’t deny that presidents need latitude; she insists only that the factual predicates must fall “within the bounds of reason.” That formulation—at once moderate and profound—anchors her opinion in the deep tradition of the rule of law. It reminds us that facts are not partisan; they are the medium in which law lives.

Part of what makes the opinion so powerful is its tone. Immergut’s prose is calm. There is no self-dramatization, no flourish. Yet by doing nothing more than refusing to credit falsehoods, she performs an act of moral clarity that the country badly needs.

If other judges follow her example, they can begin to contain the metastasizing notion that presidential power grows in proportion to bad faith. The judiciary’s role is not to assume the truth of the President’s sensational fantasies but to ensure that factual predicates for emergency powers are real. And when district judges, who see witnesses and evidence firsthand, make those credibility determinations, appellate courts should defer to them—not to executive fiction.

There are sound reasons for doctrines of deference, but none that justify acquiescing in lies. Immergut’s decision shows that need not happen. She demonstrates that ordinary judicial virtues—care, honesty, restraint—are enough to halt extraordinary abuses. Fidelity to fact, she reminds us, is fidelity to the Constitution. The stakes of this case “go[] to the heart of what it means to live under the rule of law in the United States.”

“Deference” cannot be an automatic pass to lawlessness or a license to bypass constitutional rights. If courts wield the label of “deference” to greenlight emergency powers based on lies, the law goes dark. Immergut’s opinion lights the way out.

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 Talking Feds.

Ten Fundamental Flaws In The Case Against James Comey

Ten Fundamental Flaws In The Case Against James Comey

The indictment of former FBI director James Comey is momentous, and in the worst possible way: it stands alone as a corruption and derogation of the rule of law unlike anything Trump, Bondi, Bove, or Blanche have perpetrated so far. I have been shouting from the rooftops that prosecuting a defendant without sufficient evidence, at the insistence of a President acting for reprisal and revenge, is the ultimate abomination. The combination of lacking bona fide proof and political reprisal from the top is virtually unprecedented, even compared to the worst corruptions of the DOJ under Nixon. In my view, this is the single most shameful act in the Department of Justice’s history.

It may or may not be that the Comey atrocity co-exists with a number of legitimate prosecutions. But week by week, we see reports that Bondi—serving Trump and indifferent to career DOJ professionals—is hollowing out the Department. Indeed, some sources suggest mass defections may be in the offing in the Eastern District of Virginia if the Comey case proceeds.

But given the gravity of the betrayal of everything the Department stands for, those other prosecutions don’t change the core problem. It may be that divorces or auto accidents are handled fairly in courts in Russia, Hungary, or Turkey. But if an enemy of the president can be charged with a federal crime the Department knows it can’t prove, then the Department is rotten to the core.

And of course, Trump has promised that Comey will not be the last target of his vengeance—not because of any crime (he doesn’t closely track who did what)—but because people worked on impeachments or prosecutions of him. And while reemphasizing those prosecutions doesn’t excuse wrongdoing here, it should be noted that those impeachments and prosecutions were entirely valid and, in many views, righteous responses to historic legal violations.

We must now hope the case becomes a total humiliation for the Department and for Trump—both as a forceful rebuke of this conduct and as a deterrent against similar injustices against others on Trump’s long enemy list.

I am going to adjust my Substack schedule this week because of the Comey indictment. Normally, I publish one or two in-depth pieces weekly. But this week I’m all in: I’ll publish five shorter Comey-focused pieces on Substack:

  • Monday: The 10 fundamental legal flaws with the Comey prosecution
  • Tuesday: The case’s vulnerability to dismissal before trial
  • Wednesday: Might Halligan face professional sanctions?
  • Thursday: Might Halligan, Bondi, or even Trump be called to testify?
  • Friday: Did Trump commit a High Crime or Misdemeanor?

Together, these will (I hope) clarify the pressure points and weak spots in this most dishonorable prosecution. I invite you to follow along and absorb legal and practical lessons that may well determine the fate not only of Jim Comey but of the American justice system. If you enjoy the content, please consider becoming a paid subscriber—it’s our sole support: no ads, no investors, no legacy media—just you. Thanks for considering.

The 10 Glaring Flaws with the Comey Indictment

  1. Materiality. The primary charge is that Comey “did willfully and knowingly make a materially false, fictitious, and fraudulent statement” before Congress. Materiality is a required element, and the government must prove it beyond a reasonable doubt.

In the indictment PDF (which is publicly available), the government offers no clear theory explaining how the Senate’s investigation would be influenced by whether Comey truthfully stated he had authorized a leak. Should a judge determine that no reasonable juror could find materiality, the case cannot stand—even if a jury later finds otherwise, a court can set aside a verdict if it is unreasonable.

  1. Falsity. The charging document attributes to Comey a “false statement” that he hadn’t authorized a leak. That phrasing doesn’t match exactly what he said in 2020—he said, “I stand by the testimony you summarized that I gave in May of 2017.” That statement, on its face, is not false, and legal precedent holds that you cannot prosecute a statement that is literally true, especially when posed with ambiguity.
  2. Vagueness of the Question. A reasonable witness could reasonably not discern what the questioner meant, which is problematic under the Due Process Clause in criminal prosecutions.

Among the confusing elements of Senator Cruz’s questioning: it seems he intended to contrast Comey’s statements with McCabe’s, yet reports suggest the government might instead base its theory on a leak by Daniel Richman. That shift creates a disconnect between the question posed and the theory of falsity being advanced.

  1. Richman’s Status. The indictment’s theory may rely on Richman acting “at the FBI.” But Richman’s role as an unpaid Special Government Employee reportedly expired in 2016, and no public record has confirmed a new appointment for 2017. This raises a serious issue about whether he legally qualified for that description at the relevant time.
  2. Very Weak Evidence. One indictment count was rejected by the grand jury outright. The remaining two passed by a 14–9 vote among 23 jurors, which is a bare majority. That slim margin is far from strong evidence that 12 jurors would conclude guilt beyond a reasonable doubt.
  3. Halligan Appointment Legality. After the interim appointee’s 120 days expired, the local federal court should have made the selection (per prior precedent). Under the Federal Vacancies Reform Act (FVRA), the Acting U.S. Attorney must qualify under strict criteria (e.g. having served 90 days in the agency). Halligan does not appear to meet these requirements; legal commentators argue this raises serious doubt about the legality of her appointment.
  4. Prosecutors’ Memo. Reportedly, career DOJ prosecutors in EDVA prepared a memo arguing against bringing charges—citing weak evidence. If that internal memo becomes public, it could severely undercut Halligan’s justification, bolster motions to dismiss, and lead to possible sanctions.
  5. Halligan in the Grand Jury. It is reported that Halligan personally presented the case to the grand jury—despite minimal DOJ experience. If true, that is highly unusual and raises risks. The transcript of her presentation could contain procedural errors or prejudicial statements that defense counsel will exploit.
  1. Staffing. Press accounts suggest that many EDVA AUSAs declined to work on the case. If true, the Department may need to bring in outsiders, which in a district with a “rocket docket” advantages local familiarity. If Halligan and DOJ cannot recruit credible prosecutors by arraignment (Oct. 9), it will mark a severe internal crisis.
  2. Trump’s Role. The most conspicuous feature of this case is Trump’s demand for prosecution. He replaced a U.S. Attorney who refused to pursue meritless prosecutions, installed Halligan soon thereafter, and told aides to indict long before a coherent theory emerged. Trump’s personal vendetta looms over the entire case.

And while the indictment would be equally vicious and improper in any event, it remains essential to remind the public that past prosecutions and impeachments of Trump were legitimate. Framing those as reasons to pursue “reprisal” prosecutions is factually and legally incoherent.

Trump’s unapologetic use of DOJ as his personal tool is the 800-pound gorilla in the room. Everyone sees it. His recent claim that revenge played no role only invites further suspicion. In particular, Trump’s reprehensible autocratic conduct will ground a selective prosecution motion that is near certain to come. That motion rarely ever succeeds, but it is on the strongest footing I ever have seen in this case. I’ll be writing about it more in subsequent days.

Taken together, these ten fatal flaws make it highly likely that the Comey prosecution will be disastrous. A few caveats: many of the tripwires depend on court intervention. All are legally proper. But a humiliating defeat would also fuel MAGA talking points about judicial activism, which could blunt some outrage. Second, a collapse of the case could be catastrophic for Halligan’s career—and further expose the malpractice of Bondi and Trump’s DOJ team.

More to come this week as I dive deeper into the most raw authoritarian prosecution in DOJ history.

Reprinted with permission from Harry Litman.

Tom Homan

A $50K Bagman Turned Loose By Crooked Justice Department

Confronted with reports from multiple outlets that Trump’s border czar Tom Homan was captured on tape by FBI undercover agents accepting a $50,000 payment in a CAVA bag in return for helping secure lucrative security contracts, the White House issued a categorical and indignant denial:

“Mr. Homan never took the $50,000 that you’re referring to,” said spokesperson Katherine Leavitt. “This was another example of the weaponization of the Biden Department of Justice against one of President Trump’s strongest and most vocal supporters.”

Yet within weeks of Trump’s return to office, the investigation was quietly shut down. What should have been a slow, painstaking inquiry — with prosecutors tracing the cash, exploring charges, consulting DOJ’s Office of Legal Counsel, potentially convening a Grand Jury, and more — instead vanished in a flash.

The timing strongly suggests political intervention, not legal analysis, killed the case.

It wasn’t so long ago that a White House categorical denial — putting the credibility of the administration on the line — would at least give reporters pause. But the Trump era has taught us that such denials usually mean the opposite: that the damaging evidence exists, and it’s only a matter of time before it surfaces.

Of course there’s a picture of Trump in Epstein’s birthday book; of course Comey’s account of Trump’s efforts to get him to promise loyalty was accurate; of course he paid off Stormy Daniels, as the canceled checks showed; of course he lied when he said “I returned everything” about Mar-a-Lago documents; of course he met E. Jean Carroll, as a photo showed; of course his claim that he couldn’t release his taxes was bogus.

I could go on, starting literally with day one of his first presidency, and the flagrant lies about the crowds. But the main point is this: if multiple outlets say there’s an audiotape showing Homan took $50,000 in a CAVA bag, and the White House denies it categorically, you should run straight to a betting parlor and put it all down on the White House lying.

And if that sounds funny, it’s a dark humor, because it’s repugnant that we live in an era when the administration not only has lost the benefit of the doubt, but has gained a presumption of lying.

But back to Homan. If it transpires that all the news reports are wrong and Leavitt is right, and this is all fiction, Homan should walk.

It’s not just the news reports — some backed by people who say they’ve heard the incriminating tape — that seem to catch the swaggering Homan red-handed. Homan himself has fueled the suspicion.

Homan, remember, wasn’t even the subject of the criminal investigation. FBI undercover agents investigating another person came across him serendipitously, and the $50,000 CAVA bag transaction followed.

Again, $50,000 in a CAVA bag. That’s some kind of tawdry and thuggish crime. Much more Tony Soprano than Selina Kyle. (Even better: Tony “Bagels” Caputo, the famous bagman for the Genovese crime family.)

Homan himself went on Fox News to respond. Laura Ingraham teed up the question, asking if he wanted to address the accusation that he took $50,000 in a bag. His answer, in characteristic swaggering tone:

“I never did anything illegal. I never committed any crime. I’m gratified DOJ shut this down.”

And he added, in a page directly out of the Trump/Patel/Kavanaugh playbook, a measure of chest-thumping moral indignation, saying the stories were just “hit piece after hit piece.”

But of course what he didn’t say was a lot louder than what he did — namely, that he never took the $50k in the bag.

“I never committed any crime” calls to mind Bill Clinton’s too-cute-by-half line: “I never broke the laws of my country,” which everyone understood as a backhanded admission he had used drugs in England.

So what is going on here? What exactly is Homan’s legalistic denial meant to accomplish — and more importantly, what was DOJ’s actual basis for shutting down the case? Once they give up the ghost on denying the tape’s existence, how will the DOJ try to spin its way out of trouble and keep Homan safe as well? Probably by invoking the Supreme Court and suggesting it was the prospect that the Court would reject the prosecution that triggered the case’s burial.

But that theory doesn’t jibe with the facts.

Here is what I feel confident is the crux of what’s happening.

Of course there’s a tape that has Homan taking the money.

But the Supreme Court has made a project of narrowing white-collar public corruption laws, including the one for bribery, and has thrown out multiple convictions in recent years. A careful prosecutor certainly would have to consider that litigation risk.

More precisely, the bribery statute requires that the bribe-taker be either in government or someone who has been “selected to be a public official.” So Homan would have that argument, and a track record of the Supreme Court’s grudging construction of federal public corruption laws to point to.

But here is the most important point: it seems very unlikely that the Homan investigation was shut down for this reason.

The wheels of justice grind slowly, and that includes the DOJ. Even the mere shutting down of the case took six months, from when Emil Bove, current Third Circuit judge and former DOJ enforcer, expressed displeasure at the charges until Kash Patel shut them down recently.

None of that happened. Instead, Bove — freshly promoted after helping gut DOJ’s Public Integrity Section — intervened, and the case was summarily buried. The speed of the closure all but proves the decision was driven by politics, not law.

Any determination of litigation risk based on the “selected to be a public official” language would take many months and would go through the Office of Legal Counsel.

More important, the near-certain response by a professional Department of Justice — the DOJ we had before January — would be to look hard at possible other charges against a public official who took $50,000 in the CAVA bag. There are many candidates, starting in fact with the money. We don’t know where the money is, but if Homan left the meeting with it, there may well be a question of money laundering, which would require extensive additional factual and forensic investigation.

Then there could be an honest-services fraud theory, or possible tax crimes, or false statements to investigators, or conspiracy that extended to when Homan was in office.

There could be professional consequences, like losing his job.

The point is: with this kind of conduct by that level of public official, the Department of Justice is not in the habit of throwing in the towel early.

Word to the wise: if someone offers you $50,000 in a bag, don’t take it on the assumption that the Supreme Court’s recondite white-collar doctrine will keep you out of trouble.

Texas law likewise prohibits bribery and official corruption. On paper, the state could prosecute Homan regardless of federal timidity. But in practice, the case would land on the desk of Attorney General Ken Paxton — himself a beneficiary of partisan indulgence, fresh from surviving impeachment and now running for Senate. Count on Paxton to protect a Trump ally, not pursue him. The statutes may be there; the will is not.

The Tape and the Truth

Democrats in Congress are pressing to obtain the recording. History suggests it will come out sooner or later. When it does, it will be another embarrassment for the Trump team, akin to the “birthday drawing” for Jeffrey Epstein that Trump swore was a fake, a line he holds to even after the drawing was produced. As always, shame is not a factor in his brazen lies.

These days, Trump’s critics and former Department of Justice prosecutors often decry a two-tiered justice system. But in fact it’s three-tiered: ordinary Americans face prosecution for every garden-variety fraud and cash-structuring violation; Trump’s enemies get targeted relentlessly, evidence be damned; and Trump’s friends — like Tom Homan — walk free even when caught on tape with a bag of cash. (And we could add a fourth tier, based on Homan’s own zealous work: immigration violators get tracked down by masked federal agents in military garb.)

The Homan scandal begins with a lie — Leavitt’s categorical denial — and likely is moving to a grand deception: that the Department closed the case for legitimate rather than nakedly political reasons. And it’s the public, and the increasingly illusory ideal of justice without fear or favor, that are left holding the bag.

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.

Reprinted with permission from Talking Feds.

Betraying His Oath: Trump Drags America Into The Ninth Circle Of Hell

Betraying His Oath: Trump Drags America Into The Ninth Circle Of Hell

In Dante Alighieri’s Inferno—the first book of The Divine Comedy—the Roman poet Virgil guides the author down through circles of Hell that house increasingly serious sinners. At the very bottom, the Ninth Circle, live traitors (“i traditori”), frozen in a lake of ice for their treachery.

It was not long ago that we were asking whether the Trump presidency had ushered in a constitutional crisis. We are light years past that point now, deep into an autocratic regime that in many essentials is indistinguishable from the most tyrannical strongman states.

In the past week in particular, Trump has taken action that amounts to the consummate betrayal of the most basic principle that we are a government of laws, not of man. In these two critical measures of democratic government—apolitical justice without fear or favor, and the freedom to criticize our leaders—Trump’s betrayal of the Constitution is manifest.

The Siebert Affair: Prosecutions Without Evidence

I begin with the consummate betrayal of the ideals the Department of Justice has long stood for. As a DOJ alum, it is my principal lookout, and I have not yet written about Friday’s forced resignation of U.S. Attorney Erik Siebert.

Siebert, a well-respected career prosecutor in the Eastern District of Virginia, whom Trump himself had nominated for the top job, was forced out after concluding that there was insufficient evidence to indict New York Attorney General Letitia James on mortgage fraud.

Siebert’s conduct was not disloyal, imprudent, or questionable in any way. On the contrary, it was the very definition of prosecutorial integrity.

The Justice Manual (formerly the U.S. Attorneys’ Manual) opens with the charging principle that no prosecution should be initiated unless admissible evidence is sufficient to obtain and sustain a conviction. That is not a suggestion; it is a constitutional and ethical command that embodies “justice without fear or favor.”

Forcing a prosecutor to stand in court and allege charges he or she knows cannot be proven is the gravest assault on justice imaginable, not to mention the Kafkaesque nightmare it imposes on the defendant.

Take this as me shouting from the rooftops: there is no greater abuse—none—than forcing a prosecutor to bring charges against the president’s political enemies without adequate evidence.

To fire a U.S. Attorney for following the evidence is not merely a personnel decision. It is a rock-bottom repudiation of what it means to be a prosecutor. It tells every AUSA in the country: indict the president’s enemies or risk your career. The damage is not confined to one office. It strikes at the justice system itself, which depends on prosecutors’ independence from political winds.

It also, incidentally, supplies Trump’s enemies with potent tools to challenge the corrupt prosecutions he wants his Department of Justice to bring. Selective prosecution is a defense that is extraordinarily hard to bring successfully. Under Wayte v. United States, a defendant must show both discriminatory effect (similarly situated people weren’t charged) and discriminatory purpose (the decision was made for an impermissible reason, like political animus).

But the sequence here—investigators find insufficient evidence; the U.S. Attorney refuses to indict; the prosecutor is removed; the President publicly demands prosecution anyway—creates what may be the strongest possible fact pattern for that defense. Any future case against James—or others on the enemies list, from Adam Schiff to Jim Comey—will be automatic fodder to claim selective prosecution.

The Department previously strong-armed its career prosecutors to drop charges in the Eric Adams prosecution, notwithstanding a solid basis in fact and law. This was the inverse sort of violation and, in its way, as radical a departure from the maxim that the department does justice without fear or favor.

But it is orders of magnitude less serious than the manufacture of charges against an innocent person. As the maxim goes, “better that ten guilty persons escape than that one innocent suffer.” When that innocent suffers not because of a breakdown of the system but because the president of the United States insists on it, we are at the nadir of injustice.

The contrast with the 2006 Bush Administration scandal over U.S. Attorney firings is instructive. Then, the mere suspicion that U.S. Attorneys were removed for declining to bring politically motivated charges triggered congressional hearings and national outcry, and led to the resignation of Attorney General Alberto Gonzales. By comparison, that was a garden-party controversy.

What was once enough to topple an attorney general has now been surpassed by orders of magnitude: the president himself publicly calling for prosecutions of political opponents, and the axe falling on prosecutors who refuse. We have crossed from questionable politics into authoritarian practice. In Russia, Turkey, or Hungary, prosecutors indict opponents on political command. Until now, never here.

But this case gets yet worse, incredibly enough. After Siebert was forced out, Trump sent a directive to AG Bondi to prosecute his former antagonists, such as Jim Comey, Adam Schiff, and James. Trump’s demand to Bondi: “We can’t delay any longer; it’s killing our reputation and credibility… They impeached me twice and indicted me (5 times). OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

Trump’s definition of justice is perfectly perverse and immoral. The men and women whom he proposes to have his Department of Justice charge with federal crimes are guilty of nothing more than carrying out their public duties during Trump’s first term.

Needless to say, Trump’s judgment has nothing to do with actual criminal guilt (though he screams that they must be guilty of something). He has said of James, “it looks like she’s very guilty of something, but I really don’t know.” It’s plain that her supposed guilt has nothing to do with mortgage fraud (as to which, by the way, the evidence of her innocence is strong), and everything to do with the cases she brought against him.

The Kimmel Affair: FCC as Speech Police

Move back now to the Jimmy Kimmel suspension. If Siebert’s firing represents the perversion of justice, Kimmel’s suspension represents the suffocation of core political speech.

The First Amendment prohibits government from regulating speech based on content, and especially on viewpoint. More, the criticism of the country’s leaders lies at the very epicenter of what the First Amendment protects, and what its protections are meant to achieve for the people.

The Supreme Court has applied the First Amendment to a broad spectrum of expression, including the exotic and the non-political. Its First Amendment cases run the gamut from beer ads to exotic dancing.

But more than anything, the provision was designed to safeguard the people’s ability to criticize leaders. It is a right that the framers understood as the foundation of every other freedom. Madison famously wrote, “the right of freely examining public characters and measures, and of free communication among the people thereon, is the only effectual guardian of every other right.”

Elsewhere, he explained that it is the nature of republican government that “we shall find that the censorial power is in the people over the government, and not in the government over the people.”

But that is not what we find in the country today. Instead, we see an Orwellian arrangement where business leaders, eager to curry favor, suppress speech preemptively to avoid the corrupt leverage of Trump’s executive power.

That is the dynamic here. Networks and executives know their bottom line depends on staying in the administration’s good graces. The FCC controls licensing, fines, and investigations. The President’s public wrath is the first domino; the agency’s shadow power does the rest. Everyone understands the threat hanging overhead. Executives preemptively comply. For you and me, there is no difference from a direct government command not to criticize the President.

Free speech is ultimately instrumental. It ensures accountability, fosters wisdom, protects against civil violence, and more; in essence, it underwrites every other liberty.

As in other areas of Trump’s control over the private sector—law firms, universities, media—once one entity caves, fear compounds and repression spreads.

And where do the people, for whom the First Amendment exists, fit into this model? Nowhere. They are mass casualties.

Dante imagined the deepest circle of Hell reserved for betrayal—the violation of fundamental trust. That seems apt. Trump’s recent conduct betrays not only his political opponents but the very architecture of democratic life.

Silencing comedians and purging prosecutors are not isolated controversies. They are part of a systematic strategy: to shrink the realm of free speech and to corrupt the machinery of justice. Both are indispensable pillars of the republic. Eliminate them, and it is hard to imagine how the democracy survives.

It is tempting to say we are drifting toward authoritarianism. But drift suggests passivity. What we are witnessing is active demolition. The FCC, the DOJ, the very norms of free expression and prosecutorial independence—they are being repurposed as weapons. That is not a misstep. It is the design.

Trump, the worst traitor to the Constitution in the history of the U.S. presidency, is dragging the country into the Ninth Circle of Hell.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 Talking Feds

Donald Trump

What Presidents Must Do When Violence Erupts -- And What Trump Did Instead

On the evening of April 4, 1968—barely two hours after Martin Luther King Jr. was assassinated on a motel balcony in Memphis—President Lyndon B. Johnson addressed the nation from the White House. His words were brief, solemn, and unmistakably presidential:

“America is shocked and saddened by the brutal slaying tonight of Dr. Martin Luther King.”

Johnson condemned the assassination in unambiguous moral terms. He called on “every citizen to reject the blind violence that has struck Dr. King, who lived by nonviolence.” And then he offered a prayer that King’s death would “strengthen the determination of all men of good will to work for understanding, and for justice, and for the rule of law.”

In the same breath, Johnson turned his remarks outward. He urged Americans to “stand against the poison of hatred which has led to this tragedy.” And he reminded a country reeling from yet another political murder that “we can achieve nothing by violence. We can achieve everything by working together.”

The Johnson who delivered those words was in profound political trouble. Just a week earlier, battered by public opposition to the Vietnam War and facing revolt from within his own party, he had stunned the country by announcing that he would not seek reelection. The very man who now appealed to nonviolence had spent much of the previous year clashing bitterly with King over the war in Southeast Asia.

By any cynical calculus, Johnson might have tried to spin the assassination into political advantage. He might have underscored the rupture between himself and King, or cast the tragedy as vindication of his own beleaguered presidency. Instead, he rose to the occasion.

And, not incidentally, the Democrats lost the bitterly divided election to Richard Nixon, who ran on a program of law and order. (Nixon too was appropriately mournful, suspending all political activity in the two weeks after the assassination.) Historians often point to this moment as marking the country’s political transition—from the broad consensus of the Great Society to the bitter polarization of the Southern strategy and its aftermath that afflicts us still. Yet Johnson, the consummate political animal, chose a higher road.

The following day, Johnson spoke again, this time in longer form. His message was consistent:

“Together, a nation united, a nation caring, a nation concerned, and a nation that thinks more of the Nation’s interests than we do of any individual self-interest or political interest—that nation can and shall and will overcome.”

Johnson passed the test of presidential leadership. It is, in truth, not a very high bar: every American president, faced with a national tragedy born of violence, has understood the duty to call for unity and reject violence.

Nearly 100 years earlier, Lincoln set the template in his second inaugural, conjuring “malice toward none” amid the carnage of civil war. Chester Arthur, elevated by Garfield’s assassination, called for calm. John F. Kennedy, after the murder of Medgar Evers, urged reconciliation.

Bill Clinton, in the wake of Oklahoma City, urged Americans: “Let us teach our children to resolve their conflicts with words, not weapons.” It was classic presidential cadence—words that sought not only to soothe the nation but to call out the better angels of our national character. These are the moments when Americans look to the president not as a partisan combatant but as a custodian of the national soul and a healer of bitter divides.

That is, until Trump.

After last week’s shooting of Charlie Kirk, Trump delivered what was likely the pettiest and most hateful presidential response to a national tragedy in American history. Instead of rising above partisanship, he canonized Kirk as a martyr for “truth and freedom.” He rattled off a list of supposed right-wing martyrs without acknowledging that political violence has touched all sides. He cast his own base as uniquely persecuted and left deliberately unmentioned the victims of hate crimes and political violence outside his camp. So in the days following the assassination of Minnesota Speaker Melissa Hortman and her husband earlier this year, Trump couldn’t even bother to offer condolences to Governor Tim Walz, saying, “I could be nice and call, but why waste time?”

Worse, Trump moved directly to assign blame: not to the shooter, not to the broader forces of hatred, but to his political adversaries. “Radical left” forces, Trump declared, had created the climate that encouraged this violence. In one press exchange he went further:

“We have radical left lunatics out there, and we just have to beat the hell out of them.”

The words, far from a call to calm and shared purpose, were an incitement to further confrontation. They came from the same place as his refusal on January 6, 2021, to condemn the insurrectionists who stormed the Capitol on his behalf. His instinct then, as now, was not to quell chaos but to feed it. Where other presidents have instinctively sought to dampen the flames, Trump reaches for gasoline.

Other presidents have stumbled at critical junctures. Nixon in the heat of Vietnam, Grant amid Reconstruction violence, Hoover during the Depression. But Trump’s embrace of hate and division is unerring and bottomless. He never fails to take the worst choice.

Trump is a dark figure, and this is a dark moment for America. Never before has a commander in chief so thoroughly conflated the nation’s needs with his own political fortunes, so reflexively exploited tragedy to sow greater discord. At a time when the country needs a call to unity, he supplies a fresh wave of division.

And he is not alone. Trump’s champions amplify his message. Hungarian Prime Minister Viktor Orbán, a favorite of the Trump right, echoed the line almost verbatim: “Charlie Kirk’s death is the result of the international hate campaign waged by the progressive-liberal left.” In the U.S., figures like Laura Loomer and others in Trump’s orbit repeated the script: blame the opposition, stoke grievance, sow chaos all while ignoring the political violence committed against their so-called enemies. It is a vile lie, but one that patriots are forced to fight against day after day.

The presidency has never been the province of saints. Johnson himself, brilliant and venal, lied relentlessly about Vietnam. Nixon resigned in disgrace. Grant’s administration was mired in scandal. Yet when tragedy struck, even flawed presidents understood the difference between personal ambition and national duty. Trump is the singular exception. He is simply incapable of unifying the country he proclaims to want to make great again. His compass points only toward division, hatred, and self-interest.

The question for the country is how to respond when the highest officeholder is the one modeling the worst instincts. Americans cannot rely on the president to supply the words of unity that once seemed automatic. That responsibility falls to us, and to leaders outside the Oval Office on all sides of the political spectrum who are willing to say plainly that violence is never an answer.

We already have our hands full trying to parry Trump’s weekly outrages against the Constitution.

But this is the added tragedy of the Trump presidency: in the moments when America most needs a voice of unity, it receives only the echo of its own divisions, amplified and distorted by the man charged with healing them.

And so we are left with the questions that Johnson and other presidents answered correctly without hesitation: Will America stand united against the poison of hatred? Will it reject violence as a political tool, even as it embraces diversity of thought? Will it choose the difficult path of working together? The answers, this time, must come not from the president, but despite him.

Reprinted with permission from Harrylitman.

Three Federal Courts Finally Reject Trump's Legal Claims -- And His Lies

Three Federal Courts Finally Reject Trump's Legal Claims -- And His Lies

Donald Trump’s authoritarian strategy is by now all too familiar: lie about the facts on the ground, then use those lies to justify sweeping executive power. The “crisis” is always contrived—engineered to unlock tools that otherwise wouldn’t be available.

The scheme counts on courts’ instinct to defer to executive determinations—doctrines designed for normal government and good-faith actors but wholly inapposite for a president who lies from morning to night.

That’s why it was heartening that, in the past few days, three courts not only rejected Trump’s latest power grabs but also refused to ratify his false versions of events.

In Boston, Judge Allison Burroughs ordered the Department of Education to return more than $2.5 billion to Harvard. The administration had claimed rampant antisemitism justified the clawback. Nobody seriously thinks that’s what drives Trump’s crusade against elite universities, but it took real spine for Burroughs to call it out: “[a] review of the administrative record makes it difficult to conclude anything other than that Defendants used antisemitism as a smokescreen for a targeted, ideologically motivated assault on this country’s premier universities.”

Just so. The administration will argue on appeal that Burroughs was insufficiently deferential, and if reversed it will likely be on that ground. But its position boils down to this: courts must “defer” to a lie. Nothing in the doctrine of executive deference compels such make-believe.

Also this week, the Fifth Circuit blocked Trump’s effort to use the Alien Enemies Act to deport Venezuelan migrants to El Salvador. Trump’s fanciful claim was that supposed gang members amounted to an “invasion or predatory incursion” and that courts were bound to accept this fiction.

The Fifth Circuit—often called the most conservative court in the country—was unmoved: “We conclude that the findings do not support that an invasion or a predatory incursion has occurred. We therefore conclude that petitioners are likely to prove that the AEA was improperly invoked.”

Perhaps the sharpest rebuff came from Judge Charles Breyer, who held that Trump’s deployment of federalized National Guard troops and other military personnel violated the Posse Comitatus Act (PCA). That statute enshrines a bedrock democratic principle: the military may not be used for domestic law enforcement. When Trump stormed into California as part of his immigration crackdown, Governor Gavin Newsom sued, alleging a violation.

At a brief bench trial last month, the administration claimed the troops were merely providing logistical support. But anyone who watched the crackdowns on TV knew better. Breyer rejected the legal arguments and cut to the facts: “the record is replete,” he wrote, “with evidence that the troops on the ground executed domestic laws” in direct violation of the PCA. Worse, “these violations were part of a top-down, systemic effort by Defendants to use military troops to execute various sectors of federal law (the drug laws and immigration laws at least) across hundreds of miles and over the course of several months—and counting.”

As with Burroughs’s “smokescreen” finding, Breyer’s conclusions were both matter-of-fact and devastating. And they are factual determinations higher courts must accept unless clearly erroneous.

Trump has already signaled plans to expand his military campaign to other cities. Breyer’s opinion will loom large in those future cases, giving courts cover to call out PCA violations with less hesitation thanks to the clarity of his reasoning and the force of his findings.

His remedy was measured. He enjoined the administration from using troops for domestic law enforcement but allowed them to remain in California for logistical support—the role the statute actually permits. (That’s the source of Trump’s inane boast that he “won” because the troops can stay.) Breyer’s careful line-drawing leaves the administration two choices: comply with the law or argue the PCA itself is unconstitutional.

These disparate rulings—any of which could yet be undone by the U.S. Supreme Court—reached the just result. More importantly, they insisted on confronting the facts rather than “deferring” to the administration’s fabrications. If courts continue to steer by that star, they will be a real check on Trump’s power grabs. If, instead, they allow him to invent facts, formal legal limits will scarcely matter.

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.

Texas Republicans' Lawless Detention Of Nicole Collier

Texas Republicans' Lawless Detention Of Nicole Collier

Dustin Burrows, call your lawyer.

Burrows is the Republican Speaker of the Texas House. This week, he told all Democratic Representatives that they had to sign a permission slip to accept a 24/7 police escort if they wanted to leave the legislative chambers.

You heard that right. Democrats — but not Republicans — needed a permission slip, like schoolkids cutting class or criminal suspects. That was Burrows's heavy-handed school-principal response to the Democrats’ previous departure from the state to prevent the full legislature from passing a gerrymandered map to deliver five more Republicans to the House of Representatives.

But the Democrats had returned and were present for the new special session that Governor Greg Abbott called to ram through the new map, which was passed yesterday.

Enter Nicole Collier, a Democratic representative from Fort Worth. Collier read the form, thought about the implications, and told Burrows what he could do with his permission slip. She refused to sign and submit to having a police officer shadow her.

And so, under Burrows’s orders, she has been confined to the chamber itself, sleeping on chairs like a traveler abandoned in an airport terminal. She posted a photo of herself dozing on the House floor. And she’s been giving national interviews that make Burrows and his colleagues look like overbearing hall monitors who’ve stumbled into felony territory.

The twist is that Texas Democrats had already returned to Austin, clearing the way for Republicans to push through their redistricting plan — a map designed to squeeze out five more GOP seats. They only came back after California Democrats announced their own redrawn map to create five additional Democratic seats, a move the California Supreme Court has since blessed. In other words, Texas Republicans had already gotten what they wanted. Yet instead of basking in their new lines, Burrows decided to humiliate and detain a colleague in a show of brute force.

The obvious question is what authority Burrows has to keep Collier under a kind of House arrest.

The answer is: none whatsoever.

Texas House rules do include a provision that allows for a so-called “civil arrest” (a dubious category in itself — an arrest is an arrest and is subject to Fourth Amendment restrictions) of lawmakers who have fled the state to break quorum. The Texas Supreme Court upheld that power in a 2021 case, but it emphasized that House Rule 5 applies only to compel the attendance of absent members.

Collier, of course, isn’t absent. She’s sitting right there in the chamber. She hasn’t even tried to slip out a side door. That means the text of the rule gives Burrows no authority whatsoever to confine her, much less threaten her with arrest for refusing an escort.

So Collier has done exactly what the law prescribes: she’s filed a habeas corpus petition demanding her release. Habeas — the “Great Writ” — is one of the oldest protections in the Anglo-American legal tradition, and its paradigmatic use is for just this kind of moment, when an official detains someone without legal justification. By any fair reading, her petition should be an easy win.

But habeas is just the start. If Burrows’s legal cover falls away, as it should, his conduct isn’t just unauthorized — it violates any of a number of civil and criminal laws.

Start with false arrest. Under Texas law, false arrest (sometimes called false imprisonment) is simply the unlawful restraint of a person without legal justification. By the textbook definition, Collier has been arrested: a reasonable person in her position would not feel free to leave.

Then there’s the Texas crime of unlawful restraint, which the statute defines as knowingly restraining someone without consent. And “official oppression,” which makes it a crime for a public servant acting under color of law to subject another person to unlawful arrest or detention.

And it doesn’t stop at state law. There’s also federal civil rights law. Title 18, Section 242 of the U.S. Code makes it a crime for anyone acting under color of law to willfully deprive someone of their constitutional rights. Here, Burrows has deprived Collier of her liberty — and he’s done so because of her constitutionally protected political activity.

That’s the stuff of indictments, not just headlines.

To understand the brazenness here, it’s worth recalling how unusual “civil arrest” is in the first place.

Texas Republicans have reached for it before, most recently in 2021, when Democrats fled the state to block a restrictive voting bill. Back then, the Texas Supreme Court blessed the House’s power to compel absent members back to the chamber — but only absent members.

The tactic goes back even further. In 2003, when Democrats bolted to New Mexico to derail Tom DeLay’s mid-decade gerrymander, Texas officials talked tough about dragging them back, but ultimately stopped short.

The power to force attendance has always been understood as a narrow, exceptional tool. Never before has it been twisted into an open-ended license to hold lawmakers in de facto custody when they’re sitting in the chamber doing their jobs.

That’s what makes this episode different. It’s not about quorum. It’s about domination.

Burrows may think he’s projecting strength, but Collier has turned his gambit into a PR disaster.

Her decision to camp out on the House floor has generated sympathetic coverage and viral images. It’s a classic David-versus-Goliath tableau: one legislator sleeping on institutional chairs, up against the machinery of power.

And the public seems to get it. Democrats already scored a public-relations victory when they fled the state earlier this summer, leaving Republicans sputtering and powerless. Now, with Collier cast as an almost cartoonishly over-policed lawmaker, they’ve done it again.

Burrows, meanwhile, comes off as the Keystone Cop of legislative strong-arming. Instead of projecting authority, he looks petty, vindictive, and — worst of all — lawless.

Any recourse for Burrows’s lawlessness depends, of course, on whether Texas courts are willing to enforce the law as written. And whether Texas prosecutors are willing to hold Republican leaders accountable. With Governor Greg Abbott and Attorney General Ken Paxton at the helm, there’s little reason for optimism. The capture of Texas institutions by partisan enforcers is well underway.

And don’t expect relief from Washington. Pam Bondi’s Department of Justice is not about to bring a civil rights case against Texas Republicans on behalf of Nicole Collier.

Which leaves us with the broader lesson: what we’re seeing in Austin is not just local thuggery, but a microcosm of the authoritarian instinct that has infected American politics under Trump. It’s the idea that authority exists to dominate the opposition, and that the law means whatever the leader says it means.

In this sense, Collier’s stand isn’t just about Texas. It’s about the survival of the basic principle that no one, not even a legislative leader, gets to detain their political opponents at will.

Dustin Burrows thought he was flexing muscle. Instead, he’s exposed himself to civil liability, criminal prosecution, and national ridicule.

Collier has the law on her side, the courts in her corner, and the images of her “detention” circulating widely. Burrows has…a pledge form and a police escort fantasy.

If this is what passes for strength in Texas Republican leadership, it’s no wonder they’ve been reduced to cartoonish displays of power.

And if you want to see how authoritarianism takes root in America, you don’t have to look to Moscow or Budapest. Just look to Austin, where one lawmaker is being held against her will by colleagues who think power is its own justification.

Dustin Burrows, call your lawyer.

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.

Occupied Cities: Where The Rubber Bullets Hit The Road

Occupied Cities: Where The Rubber Bullets Hit The Road

Last week we learned that Trump and Pam Bondi twice overstepped in their claims of legal authority to militarize American cities. In Washington, D.C., the administration agreed to rewrite Bondi’s order after Judge Ana Reyes signaled it likely violated the Home Rule Act. And in San Francisco, Judge Chuck Breyer seemed poised to rule that the administration violated the Posse Comitatus Act by calling out troops absent a genuine rebellion.

It’s critical to call out both legal abuses. Reyes and Breyer join the valorous district court judges who have held the line against Trump’s serial overreaches.

But the real danger lies not in the courts but in the streets, where federal agents pressed into unlawful service have been violating the Constitution and acting like an occupying force. And they are spurred on from the top, with Trump telling the country that “they are allowed to do whatever the hell they want.”

The clearest example came at a makeshift roadblock in a nightlife district on an otherwise unremarkable weeknight. Just days earlier Trump had federalized Washington’s police force with a false, dystopian story of a “capital overtaken by violent gangs and bloodthirsty criminals.”

A joint unit of MPD officers and federal agents set up a checkpoint in one of the city’s busiest corridors. Drivers were waved to the curb, interrogated, and ticketed if their papers weren’t in order. Nearly 350 cars passed; 28 were stopped; 38 citations were issued; one driver was arrested.

Protesters quickly converged, surrounding the officers until the roadblock was disbanded. The scene looked less like community policing and more like a war novel on foreign occupation.

The checkpoint was not an isolated misjudgment but part of the new order: federal appointees urged to throw their weight around, accountable only to the White House, not to the city they claim to protect.

And it was unconstitutional. Officers must have at least some reasonable suspicion to stop citizens. The Supreme Court has allowed narrowly tailored checkpoints for drunk driving (Michigan v. Sitz) and immigration at the border (Martinez-Fuerte). But it made clear in the 2000 ruling, City of Indianapolis v. Edmond, that checkpoints for general crime control violate the Fourth Amendment. The D.C. Circuit struck down a similar program in Mills v. District of Columbia. Trump’s 2025 checkpoint fits squarely within Mills: routine crime control or immigration enforcement with no special justification. For D.C. residents, it must have felt as if they were suddenly living in an occupied zone.

In California, the federal deployment has allegedly produced systemic racial profiling. Civil rights groups have sued, charging that Black and Latino residents were stopped en masse, ordered to show ID, and searched without valid grounds. Multiple U.S. citizens were swept up in the dragnet.

The forces also exceeded the brief stop-and-questioning permitted under Terry v. Ohio. Law enforcement used rubber bullets, tear gas, and batons, and initiated full-scale arrests. None of the heavy-handedness seemed justified to keep order; plaintiffs alleged it was rather to stage a violent spectacle justifying further militarization.

At trial, Major General Scott Sherman — who commanded the National Guard in LA — admitted troops were deployed despite assessments finding minimal risk to federal personnel or property. Yet they participated in raids, set up roadblocks, and even rehearsed a “show of force” operation.

The aim was not to protect LA and return it to normal life, but to instill fear and tighten control — transforming the city into an occupied zone. And Trump has vowed to replicate the model in other blue cities, starting with D.C. and aiming next for Chicago, which he calls a “disaster.” Notably absent from his list are red-state communities with the nation’s highest violent crime rates.

Together, the D.C. and California cases underscore what we’re beginning to live through: Trump is not merely testing executive authority — he is establishing a police state. Illustrating the point, none other than Deputy Chief of Staff Stephen Miller showed up at the D.C. Police Department on Friday and crowed about the operation on Fox News over the weekend.

Once Trump asserts emergency power and dispatches troops, abuses follow quickly on the ground. That’s no accident: this is the president who once told officers, “Please don’t be too nice. When you put somebody in the car, rough them up a little bit.”

Emergency powers are supposed to be temporary and limited, restoring order at the request of overwhelmed officials. Instead, federalization under Trump imposes a chain of command indifferent to constitutional limits and accountable only to him. The macro-level claim of unchecked power yields micro-level violations: the unlawful stop, the discriminatory frisk, the intimidation of citizens who have done nothing wrong.

The D.C. checkpoint and the Los Angeles profiling are not one-offs but case studies in the danger of centralized control in the hands of a would-be authoritarian. Federalization, Trump style, delivers an occupying force looking to bust heads — answerable only upward, incentivized to produce visible “results,” and encouraged to do “whatever the hell they want.”

Washington and Los Angeles show what federalized law enforcement under Trump means in practice: arbitrary stops, racial targeting, citizens treated as subjects, the permanent creepiness of an occupied community.

The question we face daily is what citizens can do to push back. Often the answer can be puzzling, but here the answer is straightforward: show up. Show up in numbers that demonstrate widespread opposition to the invasion by federal agents.
We are not yet at the point where peaceful dissent — the peaceful part is crucial — can be punished. Imagine the impact if, wherever these patrols appear, they are met by larger numbers of citizens making unmistakably clear they are not needed and not wanted.

Show up. Stand together. And drive home the message with numbers and tenacity: Trump’s emergency is not our emergency.

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.

The Summer Of Invasion: Trump Deploys Our Military As A Political Weapon

The Summer Of Invasion: Trump Deploys Our Military As A Political Weapon

This season is shaping up to be the summer of invasion in the U.S. But the invader is not a foreign power—it’s the President of the United States. Since June, when Trump purported to federalize several thousand California National Guard troops and deploy 700 Marines to Los Angeles for immigration enforcement, he has pushed to put U.S. military personnel on American streets. He’s testing limits, probing for weak seams in the law, and laying the groundwork to blow them wide open.

In California, a 3-day bench trial wraps today before Judge Charles Breyer to determine whether the Administration’s actions—over the objection of state officials—were lawful. Earlier this week, Trump announced with fanfare a military presence in Washington, D.C., and floated plans to “branch out” to other cities, including Baltimore, Chicago, New York, Los Angeles, and Oakland—all Democratic strongholds with large African-American populations. Now comes the latest: a 600-person “rapid response” unit the Pentagon has billed as a nationwide quick-reaction force—functionally, a standing crowd-control team in camouflage.

In Washington, Trump startled local officials by declaring that federal offices from a dozen agencies will moonlight as cops on the beat. FBI agents will be doing night patrols—an unglamorous and wearisome assignment that carries the added bonus, for Trump, of humiliating them.

He painted the capital as a hellscape “overtaken by violent gangs and bloodthirsty criminals” with historically high murder rates. This brazenly false litany went straight into the Trump Hall of Fame for lies. In reality, violent crime in the District is at its low point this century and still falling.

And just this morning, Trump announced that he will ask Congress — as required under the terms of the D.C. Home Rule Act — for an “indefinite extension” of his federal takeover of D.C.

If this sounds like the plot of a bad dystopian novel, that’s because deploying the military as domestic police is a hallmark of totalitarian regimes. From Tiananmen Square to Budapest in 1956, images of soldiers confronting civilians—armed not just with rifles but with the machinery of the state—are the stuff of governments bent on keeping citizens afraid and in line.

The Law: Posse Comitatus

The Anglo-American legal tradition has long held that the military should not serve as domestic police—a principle born of centuries of bitter experience with standing armies turned inward.

The chief U.S. embodiment of that principle is the Posse Comitatus Act (“PCA”), which makes it a crime to use the Army or Air Force to execute domestic laws unless the Constitution or Congress expressly allows it (18 U.S.C. § 1385). Parallel restrictions limit the Navy and Marine Corps by Defense Department policy, and other provisions bar military personnel from direct participation in searches, seizures, and arrests.

The political origins of the PCA are telling. During Reconstruction, federal troops protected freed Black Americans and enforced civil rights in the face of violent resistance. By the mid-1870s, Southern Democrats pushed fiercely to end military oversight. After the contested 1876 election and the “Compromise of 1877,” the last troops left the South. Posse Comitatus followed soon after as a legislative lock on that bargain: no domestic policing by the Army unless Congress clearly says so.

“A law meant to stop the Army from protecting freed slaves may now be the last defense against a president using the Army to erode everyone’s rights.”

The irony is stark: the Act sprang from backlash that entrenched Jim Crow, but its core safeguard—keeping the military out of routine civilian law enforcement—has endured precisely because Americans understand the danger of blurring soldier and policeman.

Emergencies and the “Prerogative”

The premise of the PCA is straightforward: civilian policing belongs to civilians, bound by constitutional limits. Soldiers answer to a different chain of command and are trained for war, not neighborhood order.

Yet democracies can’t operate on absolutes. Genuine emergencies—moments when the political community’s survival is at stake—can require bending legal guardrails, briefly and transparently. Stable democracies recognize a narrow safety valve for extraordinary powers to quell existential threats.

In his Second Treatise on Government, John Locke called this the “prerogative”: acting outside the law to preserve society itself. The corollary is crucial—it must be narrowly justified by immediate necessity, and the leader bears full accountability. Political theorist Michael Walzer adds that a leader invoking extreme powers should expect sanction afterward, so the exception never becomes precedent.

Lincoln’s point and Locke’s warning converge: emergencies may require extraordinary action—but never a standing license to rule outside the law.

The Narrow Legal Avenues

U.S. law contains only a few functional exceptions to the PCA, allowing the President to call in federal troops or federalize the National Guard when the chips are truly down. Trump has repeatedly invoked these in an effort to extend military control over some 15 million Americans in major Democratic strongholds—pointedly ignoring cities in red states with the nation’s highest homicide rates.

For example, in California, he relied on 10 U.S.C. § 12406, which permits such action only in cases of invasion, rebellion, or inability to enforce federal law in the courts. The trial before Judge Breyer will likely hinge on whether the Administration can prove any of those triggers.

Trump’s method is to take these narrow seams and drive a tank through them—recasting ordinary unrest as “national emergencies” and stretching statutory language past recognition. It’s the classic strongman playbook: declare a threat, suspend normal rules, and normalize the suspension until it becomes the rule. The political justifications often defy basic facts, as with his D.C. crime claims.

In the legal challenges ahead, the central question will be how much deference the courts will grant. In California, Judge Breyer initially stayed Trump’s order, finding the situation in L.A. did not meet the statutory definition of a “rebellion”—a determination for the court to make. The Ninth Circuit reversed, saying he should have been more deferential to Trump’s reading of events.

That gap will be the battleground for Trump’s martial ambitions. The courts, particularly the Supreme Court, traditionally give presidents wide leeway. But in Trump’s case, that risks enabling lies to greenlight a constitutional collapse.

The danger in giving him broad license—which he doubtless will abuse—is that it would create a standing power to send in troops whenever and wherever he chooses. That is a giant step toward dictatorship.

It’s not hard to see the endgame: a contested election Trump calls “fraudulent” becomes an “emergency” justifying troops to “restore order.” That way lies totalitarian rule.

We are at a hinge moment. The PCA, the Insurrection Act, and related laws assumed presidents would use emergency powers in good faith. That assumption no longer holds.

Trump has made clear he will misrepresent facts and exploit every procedural crack to consolidate power. If Congress and the courts don’t rise to the challenge, we could follow Hungary’s path, where a once-democracy now exists in a near-permanent state of emergency under Viktor Orbán.

The judges in these cases face a stark choice: one path leads back to the constitutional balance that has kept troops out of domestic policing for nearly 150 years. The other leads, step by calibrated step, to a system in which the president governs with soldiers at his side and citizens under their watch.

And we, in turn, face a call to action: to push back with everything we have against the day when tanks—not laws—decide our political fate.

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.

Trump, Bondi And Gabbard Mount A Vulgar And Vicious Purge

Trump, Bondi And Gabbard Mount A Vulgar And Vicious Purge

It’s the moment we’ve feared, the moment the Supreme Court invoked in giving Trump immunity, and the moment that marks an authoritarian government at its most vulgar and vicious.

On Monday, Attorney General Pam Bondi signed an order directing an as-yet-unidentified federal prosecutor to convene a grand jury to investigate whether prominent officials in Barack Obama's administration, including Obama himself, purposely manufactured an intelligence assessment in January 2017.

The supposed purpose of this scheme: to promote a “false narrative” that Russia and its president Vladimir Putin engaged in an operation to interfere in the 2016 U.S. election with the intent of helping Trump win.

Problem #1: there's nothing whatsoever false about this narrative.

The Intelligence Community Assessment (ICA), prepared by career professionals and our intelligence agencies, indeed concluded:

"Russian President Vladimir Putin ordered an influence campaign in 2016 to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency."

That conclusion has been repeatedly reaffirmed in multiple investigations—including those led by Mueller, the Senate Intelligence Committee, and Special Prosecutor John Durham.

The bipartisan Senate Intelligence Committee unanimously found that the ICA was “coherent and well constructed” and reconfirmed that Russia “engaged in an aggressive, multi-faceted effort to influence” the 2016 election in Trump’s favor.

Durham’s work is particularly instructive here. He was a Trump U.S. Attorney whom Attorney General William Barr tasked with leading an investigation into the origins of the FBI's Crossfire Hurricane probe into alleged Trump–Russia campaign ties. He investigated exhaustively—over almost four years—whether anyone broke the law in connection with the 2016 intelligence assessments.

While Durham’s final report found certain procedural faults with intelligence actors and the Mueller operation, it confirmed that Russian spies were behind the hacking of Democratic campaign files and the release of campaign emails. It specifically failed to find a plot approved by Clinton to tie Trump to Putin.

So much for the notion—jealously protected and prized by certain Trump loyalists including Hubbard—that the ICA was a fraud cooked up by the Obama administration to hurt Trump’s electoral prospects and thereafter delegitimize his victory.

Or so you might think.

But now enter Tulsi Gabbard, Trump’s controversial pick for Director of National Intelligence. Trump strong-armed her confirmation notwithstanding her lack of any experience in the intelligence community—a depressing point she has in common with so many Trump nominees—and her apparent pro-Syria and pro-Russia sympathies. Over 100 former intelligence professionals wrote to Congress to warn that her candidacy posed a national security risk.

Gabbard has gone on the warpath in recent weeks with a series of document dumps seeking to revisit the unanimous verdict about 2016. Last month, she appeared at the White House press podium to accuse Obama, along with former CIA Director John Brennan, former Director of National Intelligence James Clapper, and former FBI Director James Comey, of engineering a “years-long coup” against Trump.

She then chimed in that the information she was releasing showed a “treasonous conspiracy” by top Obama administration officials.

A few days later, Trump touted Gabbard’s comments and took it over the top, laying it on Obama himself: “It’s there. He’s guilty. This was treason.”

Unsurprisingly, both Trump and Gabbard’s treason charges were constitutionally illiterate. Treason—the most serious crime a citizen can undertake against the country, and one punishable by death—is expressly defined in the Constitution:

“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

It’s only Trump’s twisted “l’état, c’est moi” mindset that can construe a supposed political attack on him as an act of treason against the state.

At her White House appearance, Gabbard crowed: “There is irrefutable evidence that details how President Obama and his national security team directed the creation of an intelligence community assessment that they knew was false.”

The “irrefutable evidence” turns out to be stray bits of unverified intelligence that the agencies could not substantiate and that did not alter or weaken their bottom-line assessment of Russia’s involvement.

Gabbard capped her deranged performance with a criminal referral to DOJ, seeking investigation and prosecution of the members of the “treasonous conspiracy,” including Clapper, Brennan, Comey, and Obama.

And sure enough, Bondi—who, like Gabbard, is duty-bound to be apolitical—greenlighted the scurrilous investigation.

That piled impropriety on top of impropriety. The DOJ manual—which one suspects has been run through the shredder—requires an “adequate factual predicate” before convening a grand jury. It’s unethical to use it for a fishing expedition. That rule, in fact, is what prompted the resignation of the criminal chief of the D.C. U.S. Attorney’s Office, whom Ed Marin Jr., Trump’s first choice to lead the office, ordered to undertake a grand jury investigation without predication.

And of course, since there’s no way of showing the ICA is false (because it isn’t), there’s even less prospect of proving beyond a reasonable doubt that Obama and his supposed co-conspirators not only got the intelligence wrong but intentionally set out to falsify it.

Gabbard’s argument for criminal intent seems to begin and end with her false allegation that the ICA was inaccurate—so, of course, it must have been intentionally manufactured, and of course that must mean a political conspiracy reaching all the way to the top, displacing the entire network of intelligence professionals.

It’s the hallmark of the Trump faithful: viewing every act of government through a political lens, and assuming everyone else is doing the same.

That doesn’t mean the damage here is limited to rhetoric. First, a prosecutor in the right district could easily ram a bogus case through a grand jury, and so saddle Obama and others with the cost, burden, and stigma of criminal defense. Or they could ultimately decline to bring charges—because no legitimate prosecutor would touch them—and then hold up that decision as some twisted badge of fairness. See, they’ll say, we’re the ones who exercise restraint, unlike the partisan hacks who dared to prosecute Trump for actual, documented crimes.

Republicans will claim this is all just payback for what Democrats did to Trump. In a country that still gave a damn about facts or the rule of law, that argument would be laughed out of the room. The cases against Trump weren’t political—they were textbook examples of what the justice system is supposed to do when someone in power breaks the law.

Trump hoarded classified documents and bragged about them on tape. He tried to strong-arm election officials and incited a mob to stop the peaceful transfer of power. The prosecutions were slow, careful, and supported by mountains of evidence.

What’s happening now is the opposite: the weaponization of the justice system to settle political scores, built not on facts but on fever-dream conspiracies that have already been repeatedly debunked.

It’s hard to overstate how dangerous this moment is, and how strongly it calls on all of us to reject it categorically. Using the machinery of criminal justice to pursue manufactured charges against political predecessors is the stuff of strongmen and collapsing democracies.

From Putin’s endless prosecutions of opposition figures like Navalny, to Erdoğan’s jailing of rivals and judges after labeling them coup plotters, to the cycles of vengeance in post-coup Egypt, this is the textbook authoritarian move. It corrodes trust in democratic transitions, chills dissent, and redefines political opposition as criminal subversion.

As Steven Levitsky and Daniel Ziblatt argue in How Democracies Die, once democratic norms around restraint and mutual legitimacy are breached, they rarely recover easily. Trump is mowing down the guardrails of democracy—and the institutions built to stop him are watching with the sound off.

Ironically, this very kind of weaponization of law enforcement to pursue political attacks was one of the dangers the Supreme Court cited in granting Trump immunity for official acts. Chief Justice Roberts stressed that the rule was essential:

“Without immunity, such types of prosecutions of ex-Presidents could quickly become routine… an executive branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

So who is cannibalizing their predecessors now?

Reprinted with permission from Substack.

Bondi And Bove Both Abuse Justice -- And They Have Many Enablers

Bondi And Bove Both Abuse Justice -- And They Have Many Enablers

The rule of law took it on the chin this Tuesday.

First, Emil Bove’s confirmation delivered a lifetime judicial appointment—and potential Supreme Court candidacy—to a spectacularly unqualified nominee. In his brief tenure as Donald Trump’s personal fixer inside the Department of Justice, Bove amassed a record of bullying career attorneys and disregarding legal norms, including, according to multiple whistleblowers, ordering DOJ attorneys to defy court orders.

Second, later that same day, Attorney General Pam Bondi filed a silly judicial misconduct complaint against D.C. Chief Judge Jeb Boasberg. The complaint parroted Trump’s relentless attacks on Boasberg, whose rulings in the Alien Enemy Act cases have become a flashpoint for MAGA ire. It was a textbook hatchet job—long on insinuation, short on substance.

Bondi and Bove were the lead antagonists in the day’s events, and multiple commentators have already documented their grave failings. But they are, in many ways, cartoon villains—drawn with two strokes: total faithlessness to law, and total loyalty to Donald Trump.

I write this dispatch to describe the many other contributors to their assaults on the law. A critical part of the story is the coordinated action—and even more damaging, the passivity—across the federal government that advanced Trump’s authoritarian aims. Bove and Bondi may be the headline grabbers, but an equal scandal lies in the cast of officials who aided and abetted.

My views on Bove are well documented. I’ve called him the least qualified judicial nominee in a generation, and now the least qualified sitting judge in the country. In his short tenure as Trump’s handpicked operator inside DOJ, Bove allegedly pressured career prosecutors to disobey court orders, overrode standard prosecutorial processes, and inserted himself into politically sensitive cases in ways that alarmed veteran attorneys. He left behind not just a trail of ethical breaches, but a blueprint for weaponizing the Justice Department to serve Trump’s personal and political aims. He is a lasting black eye on the DOJ, the Senate, and now the Judiciary.

As for Bondi’s tired screed camouflaged as a complaint letter, several others—Steve Vladeck in particular—have utterly demolished it.

The complaint just repackages MAGA talking points into an official grievance with no cogent factual or legal basis, and—as Vladeck shows—it proves nothing beyond that. Bondi assails Boasberg for making public comments when in fact the Judicial Conference, where the discussion occurred, is not public.

Second, Bondi portrays Boasberg’s concerns about the possibility the Administration would disregard legal rulings as unsolicited personal musings. That’s almost certainly wrong. Boasberg was likely relaying concerns expressed by his colleagues and at the request of the Chief Justice.

Third and most obnoxiously, Bondi asserted that Boasberg was mistaken because “the Trump Administration has always complied with all court orders.” That’s a falsehood out of Orwell: invent a false record and act as if it has always been true. “Oceania was at war with Eastasia: Oceania had always been at war with Eastasia.” Bondi has used the same maneuver to insist that Biden politicized prosecutions while Trump did not—when the exact opposite is demonstrably true.

Bondi and Bove are wicked actors, but drop them into a random democracy in another place and time, and they would never be able to do even a fraction of the damage they have inflicted in the last six months. Their malign deeds are enabled by a federal government as constituted in the age of Trump, in which large chunks of all three branches have been converted into instruments of the president’s personal will.

The Executive Branch—especially the Department of Justice—has been both the source and the signal of the broader corruption within the government. Bondi, Bove, and Deputy Attorney General Todd Blanche—who just took a bizarre two-day trip to interview Ghislaine Maxwell—are each using the immense power of their offices not to serve the public, but to advance Trump’s political and legal interests.

And they’re doing so with an especially ruthless mix of malice and dishonesty. Bondi’s recent complaint is paradigmatic. It would be illegitimate in any case, but the savaging of Judge Boasberg is stunningly off-base. Boasberg is a judge’s judge who enjoys huge respect from Republican and Democratic appointees alike, and who has proceeded cautiously and meticulously in the El Salvador case that Bondi tries to proffer as a sign of his partisanship. More Orwell.

And Bove punched his ticket for the judicial nomination by his service as Trump’s henchman and enforcer within the Department. Other administrations would not have the temerity to nominate someone with Bove’s appalling track record of lawlessness, malice, and deception. For Trump, those were not faults to be overlooked but the most vital credentials—because they provide reassurance that Bove will take his side even if the law and Constitution point the other way.

Just up the street from the Robert F. Kennedy DOJ building sits the Senate, which shamefully voted to confirm Bove. Or more precisely, the Senate Republican caucus did—since Bove received no Democratic votes and all but two Republican ones. The Senators had full knowledge of the allegations against Bove—credible whistleblower accounts, documentary evidence of wrongdoing—and confirmed him anyway with scarcely a pretense of his merit. It was the cynical, sycophantic Senate Republicans at their pusillanimous worst.

Finally, the judicial branch bears some of the responsibility here. Judge Michael Luttig wrote an insightful piece about the Bondi complaint entitled “Where is the Supreme Court of the United States?” Luttig took the Court to task for not defending Judge Boasberg, and lower courts in particular, against the Administration’s benighted viciousness. Luttig wrote, “And with every passing day that the Supreme Court refuses to denounce the President and his Attorney General for these insufferable attacks, out of either fear or favor, the Supreme Court’s own legitimacy is further compromised and the complete corruption of the Rule of Law draws nearer.”

Indeed, the Court has made the lives of district court judges much harder in a number of instances, including the Trump v. CASA decision, which sharply curtailed their authority to issue nationwide injunctions.

Moreover, both Bove’s confirmation and the attack on Boasberg were facilitated by two circuit judges, both Trump appointees, who have imposed an administrative stay on Boasberg’s inquiry into whether the Administration should be held in criminal contempt. This was part of the fallout from the Department’s noncompliance with Boasberg’s orders concerning the illegal deportations to El Salvador’s CECOT prison, which multiple witnesses have ascribed to Bove. Bove’s confirmation prospects might have looked different with a meticulous review and finding by Boasberg that Bove purposely flouted the court’s order. Or, with this go-along, bovine Senate—maybe not.

Bondi and Bove are grotesque figures. But grotesques don’t gain power in healthy democracies. They flourish when institutions falter—when guardrails are removed, norms are shredded, and complicity becomes widespread.

Bove now has life tenure. Bondi continues her know-nothing campaign to delegitimize courts. And they do so with important support—or worse, quiet tolerance—of the branches meant to constrain them.

It’s infuriating. Yet with so many members in government combining to degrade constitutional rule, there are that many targets to push back against. Viewing the Bondi-Bove outrages through the broader prism of federal governance is also a call to redouble resistance—to stand up, speak out, and demand accountability from a wide swath of government officials. If the institutions won’t hold the line, then it falls to the rest of us to call out their complicity and insist that they honor their oaths and defend the rule of law.

Reprinted with permission from Talking Feds

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.


Blanche's 'Odd' Visits With Child Trafficker Maxwell Are Indefensible

Blanche's 'Odd' Visits With Child Trafficker Maxwell Are Indefensible

Todd Blanche, the sitting Deputy Attorney General (DAG) of the United States—and until recently, Donald Trump’s personal defense attorney—flew to Tallahassee last week for a two-day, in-person interview with Ghislaine Maxwell. Maxwell is serving a 20-year sentence for her integral role facilitating Jeffrey Epstein’s notorious sex trafficking of underage girls.

Reporters called the visit “odd,” “unusual,” and “striking.” But those descriptions don’t come close to capturing either the bizarreness of the visit or, more importantly, its impropriety.

It’s an indication of how corrupt the DOJ has gotten that we noticed the anomaly but don’t register the outrage.

For starters, Blanche’s junket wasn’t just odd. It was off-the-charts bizarre. Deputy Attorneys General do not interview witnesses; that’s what Assistant United States Attorneys and investigative agents do.

The DAG’s job is not investigative. It is managerial. It’s policy, supervision, and oversight. The DAG gives keynote speeches, fields crisis calls, and steers the department through complex interagency waters. Interviewing Ghislaine Maxwell? That’s not in the job description. It’s not even in the same building as the job description.

So what was Blanche doing with Ghislaine Maxwell?

That’s the question we should all be asking. Because unless the answer is “advancing the interests of the United States,” then he had no business being there.

In plain view, Blanche was leveraging his position as the second-highest official in the Department of Justice—and the power entrusted to him by the people—to betray their interest in favor of his true client, Donald Trump. He was operating as Trump’s personal emissary—part of an all-hands-on-deck effort by the Trump White House to contain the firestorm surrounding Jeffrey Epstein, Ghislaine Maxwell, and whatever secrets might still burn beneath the surface.

The meeting was plainly a form of negotiation between Maxwell and Blanche—her information for the hope of the DOJ’s favorable treatment. According to multiple reports, Maxwell was granted some form of limited immunity in exchange for talking to Blanche. That’s valuable consideration—real legal benefit conferred in exchange for information. And the cost of that benefit is borne entirely by the American people, in the form of diminished ability to prosecute future crimes and weakened leverage over Maxwell herself. So again: what did the people of the United States get in return?

The answer, again, seems to be nothing. No new charges. No public disclosures. Just a possible card for Blanche or the DOJ to play to aid the personal political fortunes of the President.

And that brings us to the real issue here. Not just the meeting itself, but the nonchalant bastardization of the Justice Department’s mission from investigating and prosecuting crimes on behalf of the people, to political fixers on behalf of the President, with Blanche as fixer-in-chief. His conduct suggests he still sees himself as Trump’s lawyer—only now with the full power of the Justice Department behind him.

Like every other DOJ official, Blanche swore an oath to “well and faithfully discharge” the duties of his office. Longstanding authority, including DOJ internal guidance, makes clear that “faithfully” is a command to serve the public interest and not the interest of any individual, including the President. As former Attorney General Ben Civiletti put it, “The client of the Department of Justice is the people of the United States, not the President who appointed us.”

Blanche’s trip turned that principle on its head. Every aspect of it seemed aimed at shielding the President from the political damage of the Epstein scandal.

And Maxwell is obviously angling to barter her information for some reduction in sentence or even commutation. Again, Blanche is in the official position to make that happen only as an agent of the people of the United States, not a political operative for Trump. He has no business trading a public good for the private political benefit to Trump of a certain spin on the information.

Then consider the (unverified) report that Blanche was the only government representative at the interview—just him, Maxwell, and Maxwell’s attorney, David Markus, a personal acquaintance of Blanche’s. No accompanying FBI agent. No DOJ attorney. No line prosecutor. No formal record of the meeting. Not even a suggestion that Blanche memorialized the contents in a memo. Just a private, undocumented interview between the Deputy Attorney General and a convicted criminal who is sitting on information that could be politically damaging to Blanche’s former (and likely current) client: Donald J. Trump.

There is no benign explanation for this breach of the most basic protocol. Blanche served for eight years as a prosecutor in the Southern District of New York. Any prosecutor learns in their first week on the job that you can’t conduct an interview alone. If the reports are accurate, the likelier explanation is this: the meeting was kept secret to avoid political fallout or to prevent the creation of a record that might prove embarrassing. Except the information belongs to the American people—it’s gathered in their interest and used in their interest.

That interest looks increasingly compromised. The suspicion that Maxwell has damaging information about Trump—and that Blanche’s real role is to contain it—only deepens when we recall Trump’s own coded outreach. To be clear, there is no public evidence that Trump has participated in any criminal activity related to Epstein or Maxwell. But when Maxwell was arrested and charged with lurid crimes, Trump didn’t express outrage. He didn’t side with the victims. He said he “wished her well.”

Trump is a master of coded communication with convicts, and he doesn’t offer up that kind gesture accidentally (or sincerely). It’s his version of an outreach to someone whom he wants not to give dirt to investigators.

He executed a similar coded outreach to Michael Cohen, criticizing the search of his property as a “disgrace” and calling him and telling him to “stay strong.” Similarly, he’s sent unsubtle messages over the years to witnesses and co-defendants, such as praise for Roger Stone’s “guts,” sympathy for Paul Manafort’s suffering, even a public promise to “take care of” those who stay loyal. In that context, Blanche’s prison visit looks less like a DOJ fact-finding mission and more like a coded message to Maxwell: stay strong, you’re not forgotten.

The Department of Justice is not a private law firm. It doesn’t run errands. It doesn’t perform client service. It acts in accordance with the Constitution and longstanding norms, and on behalf of the American people as a whole. Or at least it used to.

None of this could possibly be lost on Blanche. A former AUSA and high-level defense attorney, he knows the rules of the road and the fundamental responsibility of DOJ to serve the public interest.

We’ve reached the point where the Department’s highest officials are violating the most fundamental principles of justice—casually, and without a trace of shame. When the #2 official at DOJ can openly act as the President’s political fixer—when the most sensitive facts in the most radioactive scandal of our time can be quietly gathered, shaped, or suppressed by the very people meant to investigate them—we’ve passed the guardrails of ordinary dysfunction.

We have a right to answers. And if we surrender it, if we chalk it up to just another “odd” episode in the Trump-era DOJ—we won’t just be surrendering accountability; we’ll be surrendering the idea that justice belongs to the people and accepting that Donald Trump is entitled to play by different rules. That’s not politics as usual; it’s the foundation of authoritarianism.

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.

The Epstein Diversion: Trump's Grand Jury Head Fake

The Epstein Diversion: Trump's Grand Jury Head Fake

Faced with a firestorm over his administration's broken promise to provide “full transparency” on all the materials related to Jeffrey Epstein—compounded by the Wall Street Journal’s revelation of a vulgar letter he contributed to a notebook compiled for Epstein’s 50th birthday in 2003—Donald Trump has now agreed to make public the entirety of the Epstein file.

Just kidding.

Trump, in fact, is attempting a cynical and hollow gambit that shouldn’t fool even the most credulous of his supporters.

He directed Attorney General Pam Bondi to seek the release of “all pertinent grand jury testimony” from the Ghislaine Maxwell prosecution, tried in 2021 after Epstein committed suicide while awaiting trial. He is attempting to position himself as a pro-transparency advocate but is content to leave the decision to the court.

The Justice Department motion—which the deputy attorney general signed last week and which Bondi then championed on Fox News—promises the faithful that Trump is “demanding full transparency.” In reality, it’s a ham-handed diversion tactic, carefully designed to reveal nothing at all.

There are two independent and fatal defects in the DOJ motion that ensure it’s a head fake.

First, the motion has no chance of producing what everyone is waiting to see. At Trump’s behest, Blanche and company submitted a short filing to the Southern District of New York court overseeing Maxwell’s case, requesting the release of all “pertinent” grand jury materials. (“Pertinent” is itself a tell—the motion is hedged and lawyered; that word is not part of Trump’s normal working vocabulary.)

Crucially, the Maxwell prosecution had nothing to do with Epstein’s sleazy friends or alleged clients. That’s not how the indictment was structured. The SDNY team, led by Maurene Comey (Jim Comey’s daughter, whom Bondi fired last week), brought the case more than a decade after the Wall Street Journal reported the DOJ had reviewed the Epstein materials. Their clear focus was Maxwell and Epstein himself.

The supporting players in the indictment were Epstein’s associates, led by Maxwell, who helped him locate, groom, and abuse young girls—along with the victims themselves. The charge required only that some commercial sex act was contemplated or intended. The sex acts referenced in the indictment involved Epstein alone.

What Comey successfully moved to keep under seal were the grand jury materials that might be needed if the government were to bring a new case against Maxwell—either the one count on which she wasn’t convicted or in the (highly unlikely) event her convictions are reversed on appeal.

That’s why the grand jury materials Trump now says he wants disclosed are completely unrelated to the information about Epstein’s circle that MAGA is clamoring for—starting with the infamous 50th birthday notebook and Trump’s own ribald contribution.

Ah yes, the notebook—the term that has become shorthand for the real object of public fascination. According to the Wall Street Journal, DOJ officials reviewed a small, handwritten book allegedly recovered during the FBI’s 2006 investigation into Epstein—three years before his sweetheart plea deal in Florida.

That probe, which ran from 2003 to 2006, generated a reported 300 gigabytes of material—equivalent to approximately 150 million pages.

There is likely additional material related to Trump in that vast trove. We know, for example, that he flew on Epstein’s private plane at least seven times.

That’s not to say there is any information tying him to the actual sex trafficking.

Which is exactly what makes it so strange—and so ill-advised—that Trump has opted to go all in on a claim that is near certain to collapse: that the Wall Street Journal fabricated the story about the birthday letter. (My Substack from yesterday deals at length with the misguidedness of that suit.)

The material MAGA is clamoring for—names, logs, financial records, and whatever “wonderful secrets” (as Trump put it in the sign-off to his letter) Epstein’s trove might contain—is not part of the Maxwell grand jury file.

The motion poses no prospect of giving the chunk of Trump’s base deeply concerned about Epstein’s conduct what it is demanding.

More cynically still, Trump has structured things so he can claim he did his best—but that the court simply wouldn’t let him satisfy the MAGA faithful. His stance of leaving it all up to the court’s decision is a bad joke, given that he has treated the judiciary with more contempt and defiance than any president in history.

In fact, this is part of a broader strategy: appear to want the court to grant the motion while actually expecting—and being perfectly content with—the opposite. If the court rejects the request, Trump can throw up his hands and tell the base, “See? I tried.”

That leads to the second obvious problem with the Trump/Bondi gambit.

Even if the SDNY court were inclined to entertain the motion—which it almost certainly is not—Rule 6(e) of the Federal Rules of Criminal Procedure presents an imposing barrier.

Rule 6(e) governs the secrecy of grand jury materials. It strongly disfavors unsealing and provides six narrow exceptions for when disclosure is allowed. None of them includes “public interest,” “public outcry,” or “political meltdown.” You can’t pierce grand jury secrecy just because the public is in a frenzy or a president is under fire.

In its filing, DOJ cites a single case in which a court hinted the six exceptions might not be exhaustive. But that case involved a matter of keen historical interest—and the court expressly distinguished that from political or public interest of the sort DOJ now appeals to. Even then, the court declined to unseal the materials based on the extra-statutory argument.

In sum, DOJ’s precedent provides scant basis for unsealing the grand jury record—and the rules themselves provide none.

And that, of course, is the point. Trump and his team know the motion is a loser. They know it won’t result in disclosures. They’re counting on that.

The goal isn’t to win—it’s to pretend to try. Trump wants to tell his base he pulled every lever to get to the bottom of the Epstein affair, only to be thwarted by the Deep State, the Swamp, the corrupt judiciary, or whichever villain suits this week’s narrative.

The problem? MAGA isn’t demanding transparency in the Maxwell prosecution. They want names. They want proof of the global pedophilia ring they believe was run by Epstein and his powerful friends. They want the notebook. None of that is in the SDNY grand jury file.

This is Trump’s gambit in a nutshell: pretend DOJ is declassifying the “good stuff,” knowing it isn’t; wait for judicial rejection; and reframe himself as the truth-teller blocked by the forces of darkness.

Then, when the well-intended gesture fails, Trump can pivot: “I tried. Enough is enough. Now let’s move on.”

It’s a flimsy con from a lifelong con artist. And given the intensity of MAGA’s obsession with Epstein’s secrets, it’s unlikely to do anything to stem the escalating furor.

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.

Why Pam Bondi Wants To Make Abrego Garcia Disappear

Why Pam Bondi Wants To Make Abrego Garcia Disappear

For the great sin of having been mistakenly transported to El Salvador, Kilmar Abrego Garcia has drawn the full wrath of the federal government, which seems determined to do whatever it can to punish and immiserate him.

The story, almost too baroque to believe, begins in bureaucratic error and ends in calculated cruelty. Abrego, a noncitizen who was legally present in the United States pending an immigration proceeding, was wrongfully deported to El Salvador after a series of cascading mistakes by federal authorities.

What followed was not a correction, nor an apology, but a concerted effort by the Department of Justice—led by Florida U.S. Attorney Markenzy Lapointe and spearheaded in the public arena by the ever-theatrical Pam Bondi—to discredit, disparage, and ultimately criminally charge Abrego with puffed-up offenses that now appear to have exaggerated his conduct.

Rather than acknowledge and correct its own injustice, the government went into a defensive crouch, proffering a shifting series of excuses for why Abrego deserved no sympathy. These ranged from:

  • arguing it was impossible to bring him back because he was under the sovereign control of Salvadoran President Nayib Bukele;
  • portraying him as a serious terrorist who deserved to be deported (remember the photoshopped tattoos on a man’s fingers that Trump brandished?);
  • asserting they would not permit him back in the country under any circumstance, but would deport him elsewhere;
  • resisting disclosure of their own errors on the grounds that the information consisted of state secrets;
  • and finally, arguing in court that the mistake was minor and non-prejudicial—essentially, no harm, no foul.

All of the arguments were legally dubious, factually suspect, or both. More than that, the Administration brought to bear an unmistakable malice and obstinacy: locked in a dispute of its own making, it was determined to win at all costs.

This is not a case being handled on autopilot by a faceless bureaucracy. It bears the fingerprints of a political machine that—from the President on down—appears eager to punish anyone who embarrasses them, even (and especially) when the embarrassment results from their own misconduct.

Evolved systems of justice do not see criminal prosecutions as no-holds-barred personal battles.

The claim that Abrego hadn’t actually suffered anything legally cognizable, despite being stranded for months in dangerous and unstable conditions in CECOT prison, was particularly cynical. Just this week, Abrego’s lawyers alleged the opposite: that he, along with other prisoners, was beaten and tortured in prison, including being made to kneel overnight and denied bathroom access. This is the high-tech hellhole that the United States has paid El Salvador millions of dollars to house its deportees.

The DOJ, facing increasing legal pressure, did eventually bring Abrego back to the United States—supposedly via the heroic intervention of Secretary of State Marco Rubio. But the Administration wasn’t bringing him back to reunite him with his family. Instead, it brought him back in shackles to face criminal charges.

It was a breathtaking inversion: the man wrongly deported by the government becomes the defendant in a case brought by that same government. The obvious theatrics were designed to pull victory from the jaws of defeat, to assert that the Administration had been right all along, and that Abrego is in fact among the “worst of the worst.”

At the center of this prosecutorial contortion is Attorney General Pam Bondi, playing her familiar Trump-era role: serving as both legal mouthpiece and media surrogate for Trump’s personal priorities. Bondi repeatedly attacked Abrego’s character in public and painted him as a dangerous criminal—straying far outside the four corners of the indictment and putting on a clinic of ethical violations.

The indictment that the feds returned before bringing Abrego back took an already known episode—in which state police did not charge him—and bulked it up with a conspiracy charge painting Abrego as a criminal mastermind.

To support that narrative, they secured the cooperation of the actual head of the operation by granting him a sweetheart deal that let him remain in the U.S. despite a long record of federal crimes, many involving immigration. The conspiracy Abrego is charged with began in 2009 even though the cooperator told them he didn’t meet Abrego until 2015. He also said Abrego had driven for him “on multiple occasions,” which hardly sounds like the level of culpability of a co-conspirator.

The use of that cooperating defendant to get at Abrego violated what used to be DOJ policy of not “cooperating down,” i.e., not using a more culpable defendant to get at a less culpable one. But whatever shreds of DOJ norms remain gave ground to the overriding imperative of winning the battle against Abrego.

Then, matters took a surprising turn.

The government moved to detain Abrego pretrial. The judge denied the motion, holding that the prosecutors couldn’t show that he posed any flight risk or threat to the community, and ordered him released.

DOJ promptly played perhaps its nastiest card: it told the court that as soon as Abrego was released, it would seize him and deport him to a third country.

So much for Bondi’s preening lecture about the need to convict Abrego and have him serve a federal sentence before deportation. Now, just as Abrego was able to consider the prospect of freedom for the first time since he was unlawfully seized and sent to El Salvador, the DOJ’s plan is to forgo the criminal trial and deport him immediately.

This prompted Abrego’s lawyers to take an almost unheard-of step that underscores just how Kafkaesque this case has become. They asked the court to keep him in custody—at least until the government could guarantee it wouldn’t deport him immediately upon release.

His fear was simple and chilling: that once outside the courthouse walls, ICE would swoop in and vanish him before he ever had a chance to mount a defense or tell his story.

That’s where matters now stand. The judge has agreed to keep Abrego in jail—separated from his family, but also from the clutches of ICE agents—while it hears his argument that he is entitled to stand trial and therefore must not be deported.

The government has consented to temporarily halting deportation—it doesn’t have much choice while Abrego remains behind bars. But his legal claim that the government can be forced to put him through a criminal trial rather than deport him is a steep uphill climb.

And that means that once his emergency motion runs its course, Abrego will likely again find himself on a plane—this time bound for some third-party country like South Sudan.

Apart from the puerile obstinacy of beating Abrego—of using the full power of the Executive Branch to make life hellish for one man who had the misfortune of being mistakenly deported—the government’s plan to deport him before trial serves another malevolent purpose.

Deporting Abrego ensures that much of the underlying record—both the suspect circumstances of his deportation and the details of the prosecution—remain sealed and buried. If he’s gone, there’s no trial. And if there’s no trial, there’s no public reckoning.

The indictment itself already reads like something of a stretch. And the factual record about what happened to Abrego in El Salvador—and the conditions of his detention—could prove deeply inconvenient for the government. Quietly deporting him to a third country would bury that evidence forever.

So here we are, with a criminal defendant entitled to be at liberty but pleading to be kept in jail, where it’s safer. A man who never should have been deported is brought back not to be made whole, but to be prosecuted. Then, when that fails, to be vanished again.

It’s a tortuous saga, and it may be tempting to view it as an aberration. But it’s not. It’s a window into a government that regularly confuses its own political and propagandistic ends with national security—and that treats every argument against it as an act of aggression that must be crushed.

They are in it not to faithfully execute the law, but to win. To punish enemies. To intimidate opponents. With the structural checks and balances of government increasingly disabled or acquiescent, it falls to us—the people—to call them on it, and to raise our voices in protest at every turn.

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.