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Harry Litman

How A Corrupt And Incompetent Justice Department Is Damaging Public Safety

We have focused, for good reason, on a series of cases brought by the Trump Justice Department in rank violation of the most basic principles of due process and federal prosecutorial practice. The attorneys general who green-lighted them will live in infamy when the history of the Department of Justice’s corrupt work during Trump 2.0 is written.

Reprisal prosecutions brought for nakedly political reasons, like against James Comey and Letitia James, or “talking point prosecutions” against innocent defendants like David Hearn, brought to bolster a false public narrative, or outrageous surrenders of taking care of responsibilities for lawless sweetheart deals to Trump buddies will themselves mark this Department as the most corrupt in history.

It’s only gotten worse in the transition from Pam Bondi to Todd Blanche, who has been out front defending the 180-degree reversal of long-honored Department practice.

These cases have exacted outrageous costs on Trump’s enemies and bestowed outrageous benefits on Trump’s allies. All of them have brought great dishonor to the Department of Justice. All of them are characteristic of the sort of counterfeit justice found in authoritarian societies, not democratic societies governed by the rule of law.

The administration’s conversion of the Department of Justice into a law firm to further the personal interests and grievances of Donald Trump has deeply eroded credibility, built up over generations, since at least Watergate. The so-called presumption of regularity, basically a matter of trust and confidence that the Department was doing the right thing, is now in tatters.

But there is yet another downside to these systematic derelictions, and in some ways it is even more damaging.

The damage comes home to roost in other righteous cases that have always been the hallmark of the DOJ. We’re seeing cases that likely would have and should have proceeded to conviction coming up short, with tangible costs borne by the public.

Case in point: The trial earlier this year in a Washington courtroom of Moises Rivera-Luna, which for a second time ended in a hung jury.

Rivera-Luna is no sandwich-thrower. The Justice Department says he’s a ringleader of MS-13 who ordered murders in the United States from inside a Salvadoran jail cell more than a decade ago—the shootings and stabbings of young men in the D.C. area who had breached the gang’s codes. He is, in other words, exactly the kind of defendant a United States Attorney’s Office exists to convict, and twice now Jeanine Pirro’s office could not do it.

Cases like this, against ringleaders of interstate or international gangs, are among the most important that the Department brings. The DOJ is uniquely positioned to combat large organizations, and Congress has supplied the legal tools to do so.

I believe in the presumption of innocence, so the point here is not to insist that justice wasn’t done—it was the jury’s call whether the government proved its case beyond a reasonable doubt, and two juries declined to make it.

But I have spent a lot of time around DOJ prosecutions of organized crime, including in D.C., and everything about this one carries the presumption of credibility that MS-13 conspiracy cases have always carried. The defendant is very likely a very bad man, properly charged. The lead prosecutor, Nihar Mohanty, is a veteran who won convictions of Rivera-Luna’s co-conspirators in the same case back in 2013. These are, as one defense attorney who has tried nearly a dozen of them put it, cases that come with a playbook—cases that the Department has learned to bring successfully.

So how do you lose twice?

You lose it the way Pirro’s office is now losing a great many things. Before the MS-13 case was retried in April, the D.C. U.S. Attorney’s Office had won convictions in only four of eight federal trials before Washington juries since January. In the roughly dozen cases since, two defendants were acquitted outright, and four more juries hung, deadlocked and hopeless, reporting to the judge that they had reached an impasse. Roughly half.

That against the national numbers: Jurors convict at a rate of about ninety percent. I have practiced and taught in this field for decades, and I have never encountered a record remotely like this one—not in any office, state or federal, anywhere in the country. Judge Royce Lamberth, after nearly forty years on the bench, was similarly struck, remarking on the second MS-13 trial that he had never seen one quite like it.

It is important to understand why that ninety percent figure exists. It’s not because the system is rigged, and not because the juries are pushovers. It exists because a well-functioning Department of Justice charges prudently. Prosecutors, in the ordinary run of things, have enormous discretion over which cases to bring. In normal times, it is axiomatic that they may not and will not bring cases that don’t satisfy the Principles of Federal Prosecution. That means that—and these are two separate requirements—the prosecutors and supervisors have concluded that the defendant did the offense and that it is likely that the government will prove it beyond a reasonable doubt at trial.

That rock-bottom test is the foundation of every criminal trial in this country. Accumulated over fifty years of practice, it has meant that the Department of Justice goes into battle with a certain presumption of regularity and overall credibility with at least the run of jurors.

No more.

Pirro’s office has spent the presumption down to nothing, and that means that a generic juror in the district may well take their seat already jaundiced. They know about the sandwich guy. They know about the indictments that collapsed, the prosecutions the president openly demanded, the office convulsed by Trump-prompted firings and departures. So when a defense lawyer stands up and suggests that a witness shaded the truth or that the government has overreached, that juror is a more receptive audience than they would have been two years ago—because they have been given every reason to wonder whether this office plays by the same rules. It broke the rules in the cases the president wanted. Why would a juror assume it kept them here?

These are the hidden costs of the Justice Department’s corruption and fecklessness, and it is the part few people are talking about. The DOJ’s outrageous cases—the Comeys, the sandwich guys—are largely being lost. There is a rough justice in that (although I emphasize, it is “rough” because the defendants are still being subjected to completely unjust financial, emotional, and reputational harm). The cost lands somewhere else entirely: it is born one hundred percent by the public.

When Rivera-Luna walks out of that courtroom because the jury could not bring itself to trust the government that charged him, the price is not paid by Jeanine Pirro or by the president who installed her. It is paid on the streets of Washington—in the possibility of more violence, more victims from a man the Justice Department insists, with very good reason, is a ruthless killer.

The office says it will try him a third time in September, running the same script that failed twice. Perhaps a third jury will convict, but the deeper problem does not go away with one verdict, because a transnational gang’s ringleader is far from the last hard case they will face.

Here’s a case coming down the pike in the same courthouse, which would be hugely challenging and important for any DOJ: a conspirator in the 1988 bombing of Pan Am Flight 103. The Department has worked the case indefatigably, and it is a critical test of the U.S. criminal justice system, but the prosecutors are going to stand before jurors who have every reason to squint and with the equivalent of one hand tied behind their backs.

The responsibility and dishonor rest squarely with Jeanine Pirro and a Department led by Todd Blanche that is proud to champion the abrogation of the norms of generations of DOJ prosecutors. But make no mistake: it’s the public that pays the wages of the corruption.

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

Parachuting Into The Slush Fund Case, Blanche Proves DOJ Colluded With Trump

After studiously avoiding any role in the litigation of Trump’s IRS lawsuit—the one that gave rise to the bogus settlement agreement—the Department of Justice has suddenly parachuted into the Court of Appeals, where Trump is challenging the district court’s finding that the parties colluded and executed a fraud on the court.

The DOJ’s belated brief is plainly designed to argue that Judge Williams was mistaken in finding there was no real case or controversy because Trump controlled all sides. Its filing was designed to demonstrate that everything in the case was on the up and up, and in particular, the DOJ and Trump were not colluding with one another.

Instead, the filing shows the opposite. It reinforces the conclusion that the case was choreographed by the parties for DOJ to take a dive and Trump to emerge with the $1.776 billion slush fund and tax amnesty, ostensibly in return for the dismissal of his worthless and unconstitutional lawsuit.

Before Blanche’s confirmation, the Department had not even made an appearance in Trump’s lawsuit, one of the signal facts that Judge Kathleen Williams cited in concluding that the whole arrangement was a collusive fraud on the court. It spent 109 days on the sidelines. Meanwhile, the former federal judges who had advised Judge Williams responded to Trump in defense of Judge Williams’s ruling. At this point, the Ninth Circuit clerk recaptioned the case Trump v. 25 Former Federal Judges, underscoring DOJ’s absence.

The department’s plunge into the pool last Friday seems clearly to have been choreographed. First, Trump filed a motion styled “time-sensitive motion for stay,” which is not a thing. It also was not germane since Trump’s stay motion was being adjudicated in the district court.

Later that day, the DOJ dropped its filing, which it called “Defendants’ (not Appellants’) Response (not Opposition) to Appellant’s Time-Sensitive Motion for Stay.”

The DOJ attempts to support Trump and argue for the viability of the settlement, but challenges Williams while still arguing that it’s not on the same side as the president. It fails.

Recall the basics of this tangled and tawdry tale. Trump sued the IRS in his personal capacity over the Littlejohn leak, demanding $10 billion, then voluntarily dismissed his case under Rule 41. The very morning of the dismissal, the Department announced the settlement: in supposed return for the dismissal of Trump’s 100% worthless lawsuit, the Department bestowed the $1.776B “Anti-Weaponization Fund,” followed up with a gratuitous tax amnesty for Trump and family, conservatively worth another $100 million.

So the Department never lifted a finger to contest Trump’s claims, notwithstanding its successful defense of lawsuits just like Trump’s. Then, in coordination with Trump’s dismissal, it executed an immediate rollover and sweetheart offer, literally worth billions more than Trump’s meritless case.

In her opinion finding that the whole arrangement was a collusive fraud on the court, Judge Kathleen Williams emphasized the Department’s complete passivity. It showed, in essence, that the fix was in.

When Blanche was asked about Judge Williams’s opinion at his confirmation hearing, he was in equal measure insolent and insouciant. Blanche testified that he had read the Eleventh Circuit’s law and disagreed with Judge Williams. The apparent suggestion was that the Attorney General’s personal opinion of appellate precedent justified flouting the court’s order.

Trump too, the supposed adversary on the other side of the case, initially ignored Williams’s ruling entirely. For nearly three weeks after the July 13 order, he did nothing at all. Then, on August 1, he noticed an appeal, which certainly signaled that he doesn’t intend to just let the slush fund and amnesty wither on the vine.

Still no DOJ. The only parties who had shown up to argue the other side were the thirty-five retired federal judges who urged Williams to look hard at the fraud—and so the appeal now travels under the caption Donald J. Trump v. Thirty-Five Former Federal Judges. The caption alone tells the story: the United States, nominal defendant, has vanished from the “v.” entirely.

It was last week that the two bedfellows, Trump and the DOJ, got really cute. First, Trump filed a long and vapid “time-sensitive motion for stay” in the court of appeals. He already had moved for a stay in the district court, and Williams had not yet denied it, so he was plainly jumping the gun.

The reason became clear later that day when the DOJ jumped in with a “response”—not opposition—to Trump’s time-sensitive motion.

A better word might have been “endorsement.” Every argument in the DOJ brief supports Trump. Most notably, the Department insists that there was “adversity” in Trump’s tax lawsuit—i.e., it was a real case or controversy.

The main reason the DOJ claims there was adversity is that Trump had to settle for well less than the $10 billion he had sued for. So, the Eleventh Circuit is supposed to believe that the DOJ pushed hard and forced Trump to take “only” the $1.776 billion slush fund plus tax amnesty in return for the dismissal of his completely worthless lawsuit. That’s the best they’ve got on non-adversity.

The other principal argument is that “a party need not file a lawsuit in order to obtain a full settlement with the federal government.” That has it backwards. The billion-dollar payout runs through the Judgment Fund; the permanent appropriation Congress makes available for court judgments and the settlements of actual or imminent litigation. Subtract the legal mechanism, and what remains is a raw unauthorized raid on the treasury.

On a related note, the Department protests that if it really wanted to collude, it could have arranged it without Trump’s bringing a lawsuit at all. And that’s where the whole mess may be going: to a raw money grab not even disguised as an exchange for settling a lawsuit. Here, Mr. President; I love you and this is my way of showing it. Please help yourself to billions of dollars in taxpayer funds. Of course, this would amount not to a lesser offense than what Williams found, but a graver one, the kind of naked self-dealing the impeachment power exists to reach.

The balance of the brief is no more persuasive. The DOJ argues that the judge lacked jurisdiction because the voluntary dismissal divested her of it. They simply whiff on the point that the rules permit a reopening where there has been fraud on the court. It presents the outlandish settlement agreement as routine, but the implicit comparison is with cases that the Justice Department fought hard on the merits and then settled for a reasonable compromise amount. It pillories the district court for imposing sanctions at all, but the sanctions are the natural response, really the court’s only tool, for addressing the fraud.

Finally, the brief goes one step farther. It argues that Judge Williams should be kicked off the case. Their chief argument here is that the court ordered Trump, but not the DOJ, to answer certain questions going to whether the case was legitimate. That’s rich given that it was the DOJ that was purposely steering well clear of the litigation.

The implication of the argument is that the case was legit and the settlement agreement a fair arms-length exchange. And that means that the settlement is enforceable on its terms: Trump is entitled to both the slush fund and the tax amnesty. Todd Blanche’s empty representations to get confirmed do nothing to change that, as I wrote at the time.

The best way for the department to support Trump while being nominally opposed was to stay out of the fray. It worked for a time, until its very absence became a factor in the determination that the case was a collusive fraud on the court. Now it has to execute an impossible two-step: supporting Trump in every particular while feigning opposition to him. Gamblers call that taking a dive, and it’s done in order to fleece innocent players.

Here the marks are Trump’s usual suckers: the American people he is supposed to be serving.

Reprinted with permission from Talking Feds.

Trump's Delusional Orders On Birthright Citizenship Will Crash And Burn

The Supreme Court’s opinion in the birthright citizenship case, Trump v. Barbara, was decided by an unsettlingly close vote, but the actual decision of the Court was clear. The court majority delivered a stinging rebuke to the administration’s argument.

Six weeks later, Trump is running a version of his favorite play: take a loss and call it a win. On August 6, he issued two executive orders on birthright citizenship, and his contention is that neither one conflicts with the Barbara ruling. “There’s absolutely nothing in here that runs afoul of any of the Supreme Court’s opinions on the subject,” staff secretary Will Scharf said as the president put pen to paper. (Scharf’s know-nothing description takes on new significance with this morning’s announcement that he shortly will replace David Warrington as White House Counsel.)

It’s a fever dream. The chief order directly conflicts with Barbara, and it is destined to fail the first time the administration tries to use it. The second is subtler, and its fate will depend on how it’s administered.

Start with the delirium that drives Trump’s policy proposals. Trump’s obsession with the issue led him to attend (and then boorishly leave in the middle) the oral argument in Barbara. For years he has described birth tourism as a practice “where hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegitimately and illegally obtain U.S. citizenship for the child.”

The Supreme Court at oral argument had asked the Solicitor General how many people are affected. The government’s chief advocate before the High Court couldn’t supply a number. At the signing of the orders, Trump simply snarled the figure into being: asked how many people actually benefit, when his own Solicitor General couldn’t give the Court a number, Trump answered, “hundreds of thousands, OK? Hundreds of thousands.”

The actual number of births to tourists, per a Penn State study, is under 0.3 percent of all U.S. births.

Trump’s new orders arrived with a constitutional theory. Per legal eminence Stephen Miller (errr maybe not: he doesn’t have a law degree), “As the president mentioned, the Fourteenth Amendment was passed exclusively in the aftermath of the Civil War, so to ensure that the children of slaves would be citizens,” Miller said. “It had no other meaning and purpose outside of that.” Trump repeated those terms: “This was for the babies of slaves.”

This is an astonishingly brazen argument, since the Supreme Court precisely, emphatically rejected it in the Barbara case. In fact, Justice Clarence Thomas, joined by Justice Neil Gorsuch, made the basic argument in dissent. Thomas wrote that the Citizenship Clause merely “constitutionalized the Civil Rights Act’s citizenship provision,” that its “main object” was to settle “the citizenship of freed [slaves],” and that “subject to the jurisdiction thereof” means complete or primary allegiance—allegiance owed solely to the United States—which in his view excludes the children of temporary visitors.

Miller and Trump are channeling Thomas’s dissenting argument as authority, six weeks after the Court rejected it decisively. (I laid out why Thomas’s reasoning was bankrupt in an earlier piece; the short version is that he asked what the drafters intended rather than the meaning of the provision they wrote.)

It’s stunning that the Trump administration would claim with a straight face that nothing in these orders “runs afoul of any of the Supreme Court’s opinions.”

What the Court actually held is close to the opposite view. Writing for the majority, Chief Justice Roberts explained that “subject to the jurisdiction thereof” means what it sounds like: you are subject to the laws of the United States. You can be taxed. You can be jailed. The phrase, Roberts wrote, refers to “the power of the United States to govern those within its territory” —and that power reaches everyone standing on American soil. A child born here and bound by our laws is a citizen at birth, period, full stop.

The exceptions are vanishingly narrow, and they prove the rule. The classic one is the child of a foreign diplomat. Why? Because a diplomat, by a legal fiction of extraterritoriality, is treated as if she never left home soil. She can rip up a parking ticket in front of the officer who wrote it, and there is nothing he can do, because she is not subject to his jurisdiction. That is what the exception is about: actual immunity from our laws, not disfavor.

Now hold the first executive order against that rule. The order decrees that a child born here is not a citizen if either parent falls into one of several new categories: an “alien enemy,” defined to sweep in members of foreign terrorist organizations; a foreign government employee; or someone who entered, or hired a surrogate who entered, in a “commercial transaction” to obtain citizenship for the child.

Ask of each the only question Barbara makes relevant. Is an accused terrorist subject to the laws of the United States? Of course they are—we arrest them, we try them, we can put them away for the rest of their life. Is a foreign national who came here to give birth subject to our laws? Obviously—they can be taxed, sued, deported, prosecuted for fraud, and given a speeding ticket. None of these people carries a diplomat’s immunity. Every one of them is fully within the jurisdiction of the United States, which is precisely why every one of their children born here is a citizen, full stop.

The order is silly and benighted, and it is going to crash and burn the first time the administration tries to enforce it against a real child from one of the new categories.

The second order, “Ending Birth Tourism,” is less clear-cut. It hands the president’s authority over who enters the country to the Secretaries of State and Homeland Security and tells them, in their discretion, to deny visas and turn away people who mean to come here to give birth.

In general, Trump stands on firmer ground here. That’s because the president has broad power over the border, and a regulation already lets a consular officer deny a visa to someone whose purpose is birth tourism. To that extent, the order adds almost nothing to the law, which is why even a Homeland Security official conceded it “simply restates existing law.”

But the order does convey broad discretion to the Cabinet Secretaries of State and DHS—to deny a visa, to revoke one and bar the holder for life, to move against anyone they decide is “facilitating” birth tourism—and they have all been hand-picked to serve Trump’s caprices, even over the Constitution. So the question becomes whether Trump’s loyal servants use their discretion to unmake the citizenship of a child already born here, to the delight of the big boss. At that point, it would run into the same constitutional brick wall as the first order.

We are left with two visions of the country.

In Donald Trump’s crabbed and fearful vision, hundreds of thousands of “birth tourists” huddle near the border, planning to filch something that was never theirs; and a president can strip them and their children of citizenship by decree.

In the vision of the 14th Amendment, as the Supreme Court has made clear, the citizenship clause lays down a promise, and it is one that has reverberated around the world: if you are born here and subject to our laws, you are a citizen and entitled to full participation in our society.

Go ahead, Trump: sign away.

The children born here today and tomorrow are citizens: his fever dream cannot touch them, and the Constitution’s promise outlasts him.

Reprinted with permission from Talking Feds.

Forced Retreat From Reflecting Pool Case Didn't Make Hero Of Unethical Pirro

It’s hard to imagine a more consummate and humiliating debacle than the complete retreat that the Department of Justice was forced to execute in the Reflecting Pool case.

It would loom even larger if the Department’s reputation were not already in tatters. Having staked a large portion of its remaining credibility on the charges against David Hearn, the 67-year-old former Olympic canoeist whom her office had accused of vandalizing the Reflecting Pool, U.S. Attorney Jeanine Pirro was reduced on Friday evening to confessing, in a twenty-page filing, that its whole theory was false: the Lincoln Memorial Reflecting Pool had been ruined not by vandals but by the administration’s own botched, rushed renovation.

Some observers gave the DOJ credit for belatedly doing the right thing, taking Pirro at her word: diligent prosecutors misled by a careless sister agency, who moved to dismiss the moment they learned the truth. In fact, Pirro had zero choice. A grenade had been hurled into her office, and she was forced to fall on it. No points here for virtue.

Pirro’s motion did not just fold quietly. It took the Interior Department to task for withholding what it knew, insisting that had the agency “been forthcoming with the information clearly in its possession, the government would not have sought a grand jury indictment.” And it repudiated the prosecution’s own theory, conceding that the damage “was the result of a botched installation and not vandalism,” and that “it is difficult to attribute the widespread damage to the Reflecting Pool to vandalism, let alone to establish that fact beyond a reasonable doubt.”

Pirro even put herself crosswise with the president, a friend and ally since the 1980s, who to this hour insists the pool was slashed with knives and box cutters and wants the case pressed. “I disagree 100% with Jeanine Pirro,” Trump fumed on Truth Social. “I don’t know what she was thinking?” For a prosecutor who has spent this administration as one of Donald Trump’s most reliable instruments, dismissing his pet case and blaming his renovation looks like a rare act of conscience.

The move that forced Pirro’s hand was the receipt of documents from the Department of the Interior demonstrating that the pool’s lining was peeling because of a rushed, failed installation—in other words, not because David Hearn tugged at a flap of it. That revelation is classic Brady material: evidence that supports the defendant’s innocence. Such material has to be turned over to the defense right away. Pirro’s own motion piously recites the point, reminding the court that “prosecutors have an affirmative obligation pursuant to Brady v. Maryland“ to produce such evidence to the defense—which takes some nerve, given that the reason she was writing was that the Brady bomb had just gone off in her hands.

So once those documents surfaced, Pirro found herself, like Odysseus, between Scylla and Charybdis. She could dismiss on her own terms, spinning the story as diligent prosecutors misled by a careless agency. Or she could turn the material over to Hearn’s lawyers and let them present it to Judge Todd Edelman—a former career public defender who, a week earlier, had already warned the government it was “operating at its own peril” in the case. Handed the Interior documents, he would have blown his top and dismissed the indictment himself, and potentially referred Pirro for disciplinary proceedings to her state bar.

Pirro’s hand was forced. The dismissal was not an unlikely visitation of virtue. It was damage control and cutting her losses. Her motion nonetheless drapes the retreat in principle, reciting that under “the Department of Justice’s Principles of Federal Prosecution, a criminal prosecution should only be maintained if the defendant ‘will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.’” She invokes the Department’s high charging standard as though walking away were an act of conscience rather than the only move left on the board.

Pirro’s immediate surrender served other, self-interested purposes. The prosecution was already so slapdash and improper that it raised the prospect of two looming train wrecks. The hasty dismissal is designed to avoid them both. We should hope some reckoning is still ahead.

The first is the distinct prospect of yet another gross impropriety in the grand jury. Hearn filed a motion on July 27, alleging that the government failed to present the grand jury with any evidence of damages. The administration had elevated what elsewhere were misdemeanor charges to a felony on the strength of a single statutory element: $1,000 or more in damage. Yet it apparently had no proof to offer of that amount of damages, or any amount. It is no different from charging a felon in possession and never introducing evidence of the gun.

And the hole was not incidental; the grand jurors saw it themselves. They questioned the government’s witness about the cost of the damage, and he could not quantify it. He testified, moreover, that the repairs would have been necessary regardless of anything Hearn did—the pool was already leaking more than a million gallons of water a week, its expansion joints past their service life, the liner already torn.

On that record, the grand jury somehow returned a felony indictment. Hearn accordingly moved for the full transcript and the instructions the jurors were given—a motion that, if granted, would have exposed how the prosecution steered a grand jury to a felony it had no evidence to support, and whether DOJ had once again committed misconduct behind those closed doors. Dismissing the case makes the question go away. For now.

The second glaring problem Pirro may hope to circumvent is her own flagrantly unethical conduct. When the indictment came down on July 2, Pirro did not let the charging document speak for itself, as DOJ norms require. She called a news conference and went well outside the record. “This is not only a priority for the president, but for myself,” she announced—publicly welding her office to Trump’s political grievance—and vowed, “We will prove beyond a reasonable doubt that Hearn willfully destroyed property at the Lincoln Memorial Reflecting Pool.” For good measure, she added that she had witnesses who saw him pull the lining up and destroy it, and that he faced up to ten years.

Making prejudicial, extrajudicial statements about a defendant is improper in itself, because it can taint the jury pool. It violates both DOJ policy and the state ethics rules that bind prosecutors. But it is far worse when the out-of-school statements are, as these sure now seem to be, whopping lies. A bar complaint over her handling of the Hearn case has already been filed in New York. Pirro can hope the spotlight on her conduct dims now that she has dismissed the case behind a skein of bromides about the Department’s high standards and the diligence of her prosecutors. She should not get that reprieve.

Which brings us to the telling gaps in Pirro’s own motion. Her defense, in essence, is that Interior misled her—that had she known the truth, she never would have charged. The first question that provokes is how the hell she rushed through a felony indictment without first checking with the responsible agency about the actual evidence.

And Interior does not concede that it left her in the dark. Interior Secretary Doug Burgum took to social media to contradict her outright, insisting his department “provided the U.S. Attorney’s office expert and eyewitness testimony to the damage done by vandals and provided every piece of evidence they asked for.” So the two arms of the government are now blaming each other in public—Pirro says Interior stiffed her; Interior says it handed her everything. It hardly matters which is lying: either way, Pirro charged a man with a felony she could not support.

And what about the witnesses she assured the public had seen Hearn tear up the pool? If they existed and were prepared to say he caused the widespread damage, they were prepared to perjure themselves—the government’s own records show that damage predated Hearn by weeks. So is the Department pursuing them? Were they friendly partisans, massaged into saying what the case required? Or did they never exist at all? The dismissal aims to bury those inconvenient, glaring questions.

A pedantic aside that I can’t resist. Pirro’s motion complains that Interior gave her office “less than fulsome” information—using “fulsome” to mean abundant. That usage has become common enough that the dictionaries now grudgingly allow it, but the older and better meaning is nearly the opposite: excessive to the point of being offensive or insincere, as in fulsome praise or fulsome flattery (more on the etymology of the word here). And that sense is almost too perfect here, because it was precisely the fulsome reinforcement of Trump’s false talking point—the swaggering, the boasts of tremendous evidence, the ten years—that produced this injustice in the first place.

All of this bluster and sloppiness gives the episode an element of farce. There is a Keystone Cops quality to the whole affair: Burgum insisting he could “absolutely” prove vandalism from the drained pool’s photographs, a president raving about a 300-foot slit cut with a box cutter, a U.S. Attorney promising tremendous evidence—all of it collapsing into a filing that concedes the pool fell apart due to the administration’s own botched renovation.

But the farce shouldn’t obscure the gravity—perhaps the purest instance of totalitarian abuse of the Trump years: the government cast a private citizen with no quarrel with Trump and no connection to the pool as the villain of a fiction, and moved to put him in prison for years.

The leader tells a lie everyone knows is a lie, and the machinery of the state sets about forcing the rest of us to repeat it, all the way to felony prosecution of a totally innocent bystander. That is what makes it the most perfectly Kafkaesque prosecution I can remember outside of the annals of fiction.

David Hearn went for a bike ride, stopped to touch a flap of coating that was already peeling, and put it back when a park employee asked him to. For that, the government of the United States tried to take ten years of his life. He is owed more than a dismissal. He is owed an apology—and the rest of us are owed an accounting of how the Justice Department came to be a willing and corrupt instrument of the president’s vanity.

Reprinted with permission from Talking Feds.

How Trump's Mail Ballot Gambit Could Lay Groundwork For A Stolen Election

Last Monday, the Trump administration asked the Supreme Court, by emergency application, to lift a lower-court order blocking its executive order on mail-in voting—clearing the way for it to operate in November.

The request has the elements of a potential perfect storm: a likely unconstitutional executive order on mail-in voting, brought up on an emergency appeal, to this Supreme Court.

In an inexhaustible effort to secure unfair advantage in advance of the election, the administration has been throwing everything against the wall. Not much has stuck.

And through all of it, win or lose, it had never once asked the Supreme Court, its preferred port in a storm, to review any of these efforts. When courts struck them down, again and again, the Solicitor General stayed home. Monday’s application broke that pattern—the first time the administration has taken one of its voting orders to the Court.

Take just its parallel campaign to bully states into handing over their voter rolls: there, it has gone to district court eighteen times and lost every single one—a record of 0 and 18, the latest defeat coming Wednesday, when Judge Zahid Quraishi dismissed the suit against New Jersey.

The mail-voting suit now before the Court is a separate front. It was brought by 23 states and the District of Columbia, most of them Democratic-led. On Wednesday, a dozen red states that had intervened to defend the order filed a related application of their own to the High Court.

The battle will play out in short order.

The presidential order in play, Executive Order 14399, signed March 31, directs the Department of Homeland Security to compile state-by-state lists of citizens deemed eligible to vote, and directs the Postal Service to refuse to send a mail-in ballot to any voter whose name does not appear on the list.

Many commentators have explained why such a maneuver—which Trump tries to justify on the tired canard of widespread voting by non-citizens—would be revolutionary and cataclysmic. There never has been a federal citizenship roster, much less one assembled and policed by the executive branch, and all indications are that the upshot would be the disenfranchisement of millions of eligible voters, and of course, disproportionately Democratic.

The lower courts have invalidated the order on multiple grounds, most importantly as a violation of the separation of powers. The Constitution accords the primary role in running elections to the States, who decide who is eligible and the “Times, Places, and Manner” of voting; Congress has a limited, secondary role, the power to “make or alter” those rules by statute. The president has no role whatsoever. That is the brick wall that the Executive Order, and other Trumpian efforts, continually run into.

The same principle drives the administration’s losing streak in the voter-roll fight. Every one of those defeats turned on the same defect—the Trump administration’s reaching for a power the Constitution never gave it. The mail-voting order is that same defect, with a stamp on it.

And here is the critical point: in its emergency application, the government has not tried to defend the order’s legality. It is mounting a narrow procedural argument.

As always, the “emergency” shadow docket appeal asks the Supreme Court not for a final ruling on the merits, but for a provisional decision vacating Judge Talwani’s injunction. So we’re in the by-now-familiar territory of the four-part test to vacate and stay, a domain in which the Court’s performance has been, to say the least, inconsistent.

The first and most important factor is likelihood of success on the merits: is the government likely to win the case?

The distinctive point here is that the administration is not even trying to argue that it is likely to succeed because Trump in fact does have the power that court after court has denied him.

The administration’s argument for likelihood of success—its only such argument—is that the case is not ripe. The states sued too soon, the argument runs, before any agency “finalized” a rule or a list, so there is no concrete injury and nothing to enjoin. The Solicitor General avers that, as of now, Trump’s order is a mere “intra-Branch directive,” something the agencies are still “deliberating over how (if at all) to implement.” Nothing has happened yet. Come back later.

Both courts below rejected that story, and on a summary-judgment record the government did not dispute. They found the states already injured, in three distinct ways. First, the states must divert staff and money now to plan for the order’s demands. Connecticut, for one, has pulled election officials off legally required work to build a compliance plan. Second, they face certain and imminent pocketbook harm: several states have already bought mail-ballot envelopes the coming Postal Service rule would render useless, with Massachusetts alone out roughly $3 million. Third, and most ominous, the order threatens the states’ own officials with criminal prosecution for issuing ballots to eligible voters who happen to be missing from a federal list the government concedes will be incomplete. Those injuries are happening now, on the calendar the election runs on, not the one the litigation runs on.

The administration’s “premature” pitch subsumes a genuinely sly and sinister scenario. Were it to prevail, the administration would be freed up to implement the order, only to suddenly spring it on the states in, say, October. At that point, with ballots going out and little runway left for litigation, the machinery comes down: the lists go to the states, the Postal Service starts refusing to mail ballots to voters whose names don’t appear on them, and a criminal-referral threat hangs over any election official who sends one anyway. The states can fight back, but it’s an uphill battle to a stay with the clock running out before the midterms.

It would be an October ambush, if not quite an October surprise. The Court endorses the administration’s current view that the suit is premature, and by the time it isn’t premature, it’s quite late—perhaps too late to restore order and lawfulness. And as we well know, Trump’s hole card in election chicanery has always been chaos.

There is a more sanguine view, and the sharpest chronicler of the shadow docket, Steve Vladeck, has laid it out.

Professor Vladeck emphasizes that the administration has not asked the Court to bless the order on the merits. So even a ruling in its favor would not settle the president’s authority over mail-in voting. It would only put off the merits, perhaps by a matter of weeks.

And he presses the same pressure point from the other side. Either the administration takes meaningful steps to implement before the election, in which case the standing and ripeness problems it is hiding behind necessarily go away and the challengers can come back to court on a ripe record; or it doesn’t, in which case we needn’t fear the consequences of the order. Heads the states have a case; tails the government has no emergency.

I lean the other way, toward worry. The administration filed this application now—on an emergency basis—for the first time, after two years of losing these election-regulation fights. The Solicitor General did not break a two-year pattern of staying home and rolling the dice on the ripeness issue to win a mere procedural delay in a merits fight. He must be calculating that the emergency application buys something—some more favorable angle in the administration’s paramount goal of tilting the election.

The Trump administration’s application talks out of both sides of its mouth, and not subtly. Its sole argument on the primary factor of likelihood of success is that the case is premature—nothing has yet happened to injure the plaintiffs. It’s too early.

But on the next factor, irreparable harm—why they need the stay right now—the position is that it’s getting too late. Time is short. Implementation “will need to begin well before November—indeed, as soon as early to mid-August.” Every day of delay makes it harder to get the machinery running before the election; unless the Court acts immediately, the harm will be “effectively unreviewable.”

So: too early for the states to sue, and too late for the government to wait. Not ripe enough to be a real case, but so urgent it can’t survive an ordinary appeal.

And the irreparable-harm claim collapses on its own terms, because of how narrow the injunction is. It stops the administration nowhere but in the 23 plaintiff states and Washington DC, and for no election but this one. The government stays free to build its lists and its Postal Service rule in 38 other states, and everywhere for the elections to come. Asked what irreparable harm all that residual freedom leaves it suffering, the government offered the First Circuit only that running a two-tiered mail system would be “confusing”—a claim the panel found entirely conclusory.

There is, by contrast, nothing conjectural about the harm to the states, which brings us back to the criminal threat. The government’s own lawyer, asked in district court whether he’d have probable cause to prosecute an official for mailing a ballot to someone the federal list omitted, answered, “I don’t know the answer to that question, Your Honor.” That is not a mere conjectural harm. It’s a gun on the table.

Monday’s filing was the 35th emergency application of the second Trump administration—more than four times as many as the Bush and Obama administrations combined filed over sixteen years. It has treated the emergency docket as its express lane, filing application after application to a Court that has granted relief in case after case, often provisionally, often without explanation, always fast.

It’s a bad way to make important constitutional law. Speaking last year to the Ninth Circuit’s lawyers and judges, Justice Kagan advised the Court to “be cautious about acting on the emergency docket”—where cases arrive “without full briefing or a robust lower court record,” and where the justices “sometimes rule . . . without explaining their reasoning.” Last Thursday, to the same conference, she allowed things had improved “by a fair bit,” but conceded the Court was still “granting too many of these applications,” creating a “kind of momentum” that only invites more.

The administration is not seeking an emergency ruling that its order is lawful. If and when it does, the odds are long: the courts have overwhelmingly rejected its attempts to muscle in on the authority of the states and Congress, and this Supreme Court’s recent election decisions give it little to build on.

The danger is subtler than that, and worse. It is the chain of events in which the Court accepts the “premature” story and vacates the injunction; the administration then fully readies the order and deploys it when the states are relatively flat-footed, and the calendar is greatly compressed.

And it would be of a piece with this administration’s brazen maneuvers to game the midterms: each depends on a combustible mix of law, politics, and the opportunistic exploitation of chaos—and chaos, as we have learned, is Trump’s stock in trade for end runs around the Constitution. As Trump told his own Justice Department in the last days of 2020, “just say that the election was corrupt and leave the rest to me and the R. Congressmen,.”

That’s our lookout as this emergency application plays out. What looks at first glance like a technical squabble over ripeness may wind up landing a far heavier practical blow. If the Court buys the “premature” story and the order comes online when it’s too late to stop, this dry procedural footnote is what the histories will circle: the day “too soon” became too late, and a technicality became a prelude to a stolen election.

Reprinted with permission from Talking Feds.

Foul Smell Arises From ICE Killing Of Longtime Houston Resident

There was a time when the federal government’s record justified withholding judgment, when, in the wake of another gut-wrenching killing by ICE agents, a fair-minded person could count on the Department of Justice to investigate its own officers and bring charges if the facts warranted them.

That time is long past. ICE is now a rogue agency. It has lied about and obstructed the investigation of previous killings, and it has been regularly contemptuous of court orders. As the chief judge of the federal district of Minnesota wrote, “ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence.” The presumption of regularity—the baseline courtesy we once extended to the government’s account of what its agents did—has been put through a wood chipper.

So when word emerged of another ICE killing—this one in Houston, of a longtime resident named Lorenzo Salgado Araujo—and ICE immediately claimed that the victim had “weaponized his vehicle” to run down an officer who fired only in self-defense, there was every reason to expect the worst.

And the worst is just what we’ve gotten—not just in the facts of the killing itself, but in the federal government’s apparent determination to circle the wagons and smother any effort to achieve justice.

It is a fetid, still-unfolding scandal, and it has come in four stages: the killing; the official excuse; the evidence that gives that excuse the lie; and the wagon-circling to foreclose any accountability.

Lorenzo Salgado Araujo was, by every measure, what our political leaders all claim to prize. 52 years old, he had lived in the country for 35 years, raising 3 sons—all U.S. citizens—whom he sent to college while running a construction business that gave dozens of other people jobs. He was diligently in the process of legalizing his immigration status.

As Bill Kristol put it, Salgado Araujo was a better American than the people leading our country.

Last Tuesday, July 7, Salgado Araujo woke up at his normal five a.m., got in his work van, and picked up his crew, comprising 3 other men, including his younger brother, Victor.

As he was on his way to work, at around 6:50 a.m., ICE agents confronted the van and delivered the fatal shots. The details remain murky but are coming into focus.

One particular heart-rending detail: That morning, Salgado Araujo’s wife, worried that something had gone wrong, called their eldest son, Ronaldo. Ronaldo drove to the site, found his father’s white van, but no sign of him. Then a video surfaced on his social-media feed: a man on the ground, shot, struggling. Ronaldo recognized his father instantly: not by his face, he said, but by his voice, crying for help as he lay bleeding out in the street.

Salgado Araujo arrived at Ben Taub Hospital, where all three of his sons had been born, carrying no identification. At the family press conference, a community leader asserted ICE agents removed all his personal identification. He therefore was logged in as a John Doe. He died hours later.

As we were learning about the killing, the Department of Homeland Security (DHS) issued an official statement. It cited no actual sources other than “information we are receiving.” People familiar with the ICE playbook could probably recite the account with their eyes closed.

DHS reported that Salgado Araujo had refused commands and “weaponized his vehicle in an attempt to run over an ICE law enforcement officer,” who fired “in self-defense.”

That’s more or less the identical account, down to the use of the word “weaponized,” that they proffered after the killing of Renée Good. But video evidence showed that the shot that killed Good was fired through her open driver’s side window, with the agent standing out of the vehicle’s path—severely undermining the claim that the shooter was defending himself from Good’s car plowing into him.

So Salgado Araujo’s killing and the official defense repeated the same rotten pattern as in the Good case. The third stage, as with Good, was the revelation of facts that make the official claims of self-defense look like a bald lie.

Good’s killing arose in the context of a robust, lawful demonstration. Consequently, there was a lot of video that rolled in. The 6:50 a.m. shooting on their way to a construction site is harder to piece together. Moreover, the ICE agents were not wearing body cameras, notwithstanding the promise in February in the wake of the Minnesota tragedies that DHS would “rapidly acquire and deploy body cameras to DHS law enforcement across the country.”

But there were three eyewitnesses: the three workers in the van with Salgado Araujo. Their accounts would be central to any bona fide investigation.

That makes ICE’s treatment of them particularly reprehensible. Instead of trying to elicit the facts from them, ICE put all three in immigration detention, apparently facing removal. The agency reportedly has imposed pressure on them to self-deport.

Fortunately, an attorney for the surviving passengers, Hugo Balderas-Ibarra, was able to speak to all of them, separately, in detention. Each of them flatly contradicts ICE’s self-defense scenario.

According to the lawyer’s account, all three passengers report that they were heading to work around 6:30 a.m. when an unmarked car pulled up behind them at a stoplight. When the light turned green, the unmarked car swung onto the shoulder, cut in front of them, and tapped its brakes. At that point, Salgado Araujo made a U-turn, and then the officers switched on their lights. According to the passengers, Salgado Araujo was on a road with heavy construction and crawling along at about five miles per hour.

One of the three, Jose Trinidad Rojas, wrote out his denunciation of ICE’s version by hand. “That is a lie,” Rojas wrote. “It is impossible for them to say that they were going to get run over … there were no officers in front of or behind the vehicle. They were on the sides.”

The ICE car rammed the van, not the other way around. Another ICE vehicle then pulled up on the other side, hemming them in.

An ICE officer proceeded to jump out of the unmarked car and ran at the van from the side, yelling “stop.” He began firing through the front passenger window. A shot hit Salgado Araujo in the abdomen. Victor, the brother, was in the passenger seat and said that when the officer fired the fatal shot, “the gun was in front of my face.”

If the witnesses’ unanimous and separate accounts are accurate, the ICE “weaponized vehicle” yarn fails outright. Salgado Araujo was not bearing down on the shooter, who shot through the front passenger window, so obviously was not in danger from the car.

One final wrenching detail. ICE was not even looking for Salgado Araujo or any of his passengers. Their target was a Guatemalan national who had nothing to do with Salgado Araujo, and who was nowhere in the vicinity. But supposedly someone in the van “resembled the target,” at least to the ICE agents.

Not so the aftermath. The feds appear to be waist-deep, and getting deeper, in a conspiracy to prevent the investigation of Salgado Araujo’s killing and stonewall any efforts to determine if a crime occurred.

A straight-shooting Department of Justice would initiate an investigation in the Civil Rights Division into whether the agents deprived Salgado Araujo of his civil rights in violation of 18 U.S.C. § 242. It’s the same charge that the officers who killed George Floyd were convicted of. The Department has employed it against law enforcement officers.

If the feds chose not to move forward, the assumption would be that the state authorities, who have a strong interest in possible homicide charges under state law, would get the baton, and that the feds would cooperate with their efforts, starting with the sharing of evidence.

With Todd Blanche’s DOJ, this normal approach is a pipedream.

First, the federal authorities appear to be undertaking efforts to prevent the most important evidence we now have, the eyewitness accounts, from ever seeing the light of day. All three witnesses were immediately taken into immigration detention and are now facing removal. If they are deported, the evidence walks out of the country with them.

As for the state of Texas’s efforts to look into the killing, the feds are actively trying to squelch it. Harris County DA Sean Teare revealed that “federal authorities continue exclusively handling all aspects in this case,” and that “access to key evidence remains under federal control.” The Houston Police Department issued a carefully worded statement: local law enforcement has “no independent jurisdiction to investigate federal agencies or federal law enforcement personnel who are acting in the course and scope of their official duties.”

That hedged account significantly understates Houston PD’s independent role. It incorporates the legal standard for federal immunity, roughly whether the federal agents’ conduct was necessary and proper. If a court were to determine that was the case, Houston law enforcement would be stymied; but that’s the whole issue that a state prosecution would take on. There is no law that strips a state of the power to investigate a killing within its borders simply because the killer wore a federal badge.

And most gallingly, the feds are not even pretending to undertake an investigation of the killing. They have announced a two-part inquiry. The DHS Inspector General—Joseph Cuffari’s office, currently sitting on more than six hundred open misconduct complaints against DHS employees—will “lead” the inquiry. But the Inspector General has no criminal jurisdiction over a homicide; at most, it can find that some internal deadly-force protocol was broken.

But never fear, the FBI is also on the case. Actually, never mind and start fearing: the FBI’s Houston office has announced that its inquiry will focus on whether Salgado Araujo assaulted a federal officer. They have opened a file on the victim and aren’t even looking into the killing. It’s akin to a kick to the dead victim’s stomach.

Even the most benign reading of the facts of Salgado Araujo’s killing screams out for a thorough investigation. The more sinister versions—fully warranted by ICE’s recent track record—present a litmus test for any Department of Justice.

A government that violates the Constitution, then lies about it, then circles the wagons to keep the lies from coming out, is failing that test in real time; worse, it gives every indication of indifference to, if not pride in, its derelictions. The deeply bitter irony is that the victim’s humility and dedication to the American dream were matched, point for point, by the government’s hubris and indifference to the rule of law.

It all doesn’t pass the smell test, meaning, in this case, it stinks to high heaven.

Reprinted with permission from Talking Feds.

The Supreme Court Rebuked Trump On Birthright Citizenship, But That’s Not The Real Story

By Monday evening, the storyline had already solidified: a mixed bag for Trump at the Supreme Court. A split verdict on executive power. The Wall Street Journal had the Court “expanding presidential authority” in one breath and “rejecting” Trump’s bid to fire a Fed governor in the next. Trump himself, never one to undersell, called it a “tremendous loss” on the mail-in ballot case and a “BIG WIN” on the firings, and even that whiplash got reported straight, as if he were just providing the scoop—a president taking his lumps along with his victories, proof the system is working as designed.

Don’t believe it. The last two days of decisions only advance the actual storyline: a radically conservative court consolidating its constitutional overhaul and leaving open the prospect of further radical changes to come.

Set against the real stakes of the cases the Court decided this week, this was a week to leave conservatives celebrating, topping off a term that was a conservative juggernaut. And the single most important thing that happened, by a wide margin, isn’t the birthright citizenship case that dominated the headlines. It’s the essential consummation of a project this Court has been working on for sixteen years: the dismantling of the structural architecture that has insulated huge swaths of the federal government from raw presidential control.

Start with Trump v. Slaughter. Read the first paragraph of most of the coverage, and you’d think it was a wash—the Court let Trump fire an FTC commissioner, but it stopped him from firing a Fed governor in the companion case. Tossup, right? Wrong. Slaughter isn’t one beat in an even trade. It’s the demolition, and Cook is the small, fragile thing sitting, illogically, in the rubble.

For ninety years, Humphrey’s Executor v. United States—a unanimous, 9-0 decision, the kind of case first-year law students learn as black-letter, foundational, not-up-for-debate—held that Congress could protect FTC commissioners from being fired without cause. That single case has been the load-bearing wall underneath the entire modern administrative state: the NLRB, the SEC, the Federal Reserve itself before this term, dozens of agencies built by Congress specifically to operate at one remove from whoever happens to be sitting in the Oval Office.

Slaughter lays waste to this entire project on a straight 6-3 ideological vote.

Steve Vladeck called Slaughter “the most important separation-of-powers ruling of the twenty-first century,” and I don’t think that’s hyperbole. It embraces the closest thing to an absolutist version of the unitary executive theory that has been a hobbyhorse on the right for two generations.

Let’s now turn to Trump v. Cook, in which the Court declined to lump the Federal Reserve in with all the other agencies whose wings the Court and Trump now have clipped. It’s the other side of the supposed “split verdict” the Court delivered to the President. In fact, that emerging view both overstates the importance and understates the incoherency of the case.

Five justices—with Roberts and Kavanaugh reversing their positions from the Slaughter case—held that the Fed’s unique historical lineage, tracing back to the First and Second Banks of the United States, exempts it from the unitary executive logic that governs everything else.

The Court didn’t carve out a coherent doctrinal exception for the Federal Reserve, and it’s hard to see what principle of executive power would exempt the Fed. The muddle presented Sotomayor with a field day in her dissent, which she read from the bench. Why do the distinctive characteristics of the Fed amount to a constitutional argument, overcoming the force of Article II, that Congress can insist on the president’s having a good reason for firing Fed governors? The majority’s attempted proffer of historical analogues or influence of monetary policy feels like the sort of makeweight distinction for exempting the Fed, when the real reason is that giving the president the same controlling power could wreak havoc on the national and international economies. Whatever else that is, it is not a constitutional argument.

Properly understood, the Cook decision only underscores the weakness of the Court’s entire line of cases aggrandizing the president and eliminating Congress’s ability to provide for agency independence.

The “balance” narrative the press is running with gets this exactly backwards. The Fed carve-out doesn’t prove the Court is being moderate or restrained. If anything, it underscores just how contingent and unpersuasive the other cases are. In Cook, the majority essentially invents a bespoke, ad hoc exception out of whole cloth for reasons that make eminent sense but don’t stand up alongside the Court’s overall project of taking a wrecking ball to the administrative state.

The stakes of the Court’s arch-reactionary project—wiping the books clean of nearly 100 years of canonical constitutional law—are easy to underappreciate. The dozens of agencies that the Court now has gutted have played a huge role in American life since the New Deal, comprising more or less every area of health, safety, and well-being. The modicum of independence that Congress has provided has meant that they go about their work with an emphasis on expertise and political nonpartisanship.

The independence Congress built into the FTC, the NLRB, the Nuclear Regulatory Commission, the Consumer Product Safety Commission, and dozens of other agencies was salutary and beneficial. Each time, Congress concluded that some questions are better answered by people with expertise and some distance from whoever just won an election than by political appointees taking orders from the West Wing. These agencies bring exactly that—expertise, continuity, nonpartisanship—to decisions that are, quite literally, life-and-death: whether a drug is safe, whether a nuclear plant is sound, whether the money supply is being managed honestly.

Conservatives have long insisted that independent agencies constitute a “headless” fourth branch of government that cuts against the grain of the tripartite constitutional scheme. Nobody has pressed that argument longer, or more patiently, than John Roberts himself. As a young Reagan White House lawyer in 1983, he wrote that “the time is ripe to reconsider the constitutional anomaly of independent agencies.”Two decades later, newly installed as chief justice, he began laying the groundwork to get there, writing in a 2010 case that without unrestricted removal power, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Seila Law followed a decade after that. On Monday, from the center seat, he finished the job he started forty years earlier, declaring flatly: “If anything more is left of Humphrey’s, we overrule it.”

It’s the same kind of strategic patience that produced his slow-motion dismantling of the Voting Rights Act—wait for a reliable majority, chip away case by case, and fully swing the hammer once the votes are no longer in doubt.

Justice Elena Kagan, almost certainly the Court’s preeminent expert in administrative law, has most carried the project of explaining the fundamental flaws and real-world damage of the Court’s evisceration of agency independence. She wrote the principal dissent in Selia Law in 2020, when the Court carved the CFPB’s single director out of Humphrey’s protection. Kagan argued, presciently, that the majority’s supposed “exceptions” to presidential removal power were, in her words, “made up for the occasion,” gerrymandered to reach the result the Court wanted. She joined Breyer’s dissent in Collins the next year, when the Court extended that same logic to the Federal Housing Finance Agency. And now she’s joined Sotomayor’s dissent in Slaughter, as the Court finally erased the unanimous decision in Humphrey’s Executor.

Six years ago, Seila Law arrived as a sort of exception eating the rule, one bite at a time. Now there’s no rule left to eat, just a poorly reasoned carveout of the Fed.

It’s important as well to assess the breadth of the damage to the administrative state that the Court now has green-lighted. It’s not just a matter of the firings that will actually happen, though there will be plenty of those: nothing excites Trump more than the power of saying “you’re fired.”

But the impact will be broader and more corrosive. An expert at the Nuclear Regulatory Commission deciding whether a reactor is safe, an economist weighing a rate decision, a scientist evaluating a vaccine—all of them now know that the “wrong” finding, the politically inconvenient one, can get them sacked at will, no cause required. You don’t have to fire very many people to make everyone else flinch. That’s the thumb on the scale: toward partisan convenience and away from independent expertise, exactly the trade the people who built these agencies thought they had foreclosed for good.

I want to close with a word on the term-ending decision in the birthright citizenship case, Trump v. Barbara, because it is of a piece with the more accurate narrative of the executive power cases. The case is likely going to get covered today as the big Trump rebuke of the term, and on one level, that’s fair. Roberts wrote for five justices holding that children born here to parents who are undocumented or here temporarily are citizens, full stop, exactly what the text of the Fourteenth Amendment says.But it’s stunning and stomach-turning that four justices were ready to say otherwise.

Thomas, in a cribbed, nasty opinion, argued the Fourteenth Amendment was really only ever about overruling Dred Scott and doesn’t mean what it plainly says. And Kavanaugh, presenting himself as the careful institutionalist, concurred in the judgment but argued the real problem is only statutory—that Congress could amend the citizenship statute tomorrow to carve out children of undocumented parents, fully consistent with the Constitution as he reads it. But there is no such position consistent with the Constitution: the question is always, and only, whether people are born here and are subject to the jurisdiction of the United States. If so, they are citizens by the plain command of the constitutional text

Trump noticed within hours, taking to Truth Social, announcing that “no long and unwieldy Constitutional Amendment is necessary,” that Congress should “start TODAY” on legislation ending birthright citizenship, with his “Complete and Total Support.” That’s not freelancing. That’s Trump reading Kavanaugh’s opinion correctly and picking up exactly the tool the Court left sitting on the table for him.

So yes, we dodged a bullet. But it landed in the vicinity, close enough to feel the whistle of it. A case this easy, this dictated by text, this nearly self-evident—and four members of the Supreme Court were willing to read it the other way. That’s in many ways the bigger story.

It’s in fact the same story, told twice in two days: a court inclined to bend toward the administration’s preferred outcome whenever doctrine gives it the slightest room to do so, and restrained by margins more thin, fragile, and narrow than the headlines suggest.

Reprinted with permission from Talking Feds.

Abusing 'The Most Dangerous Power' Against Trump Adversary Gavin Newsom

Multiple news outlets reported last week that federal agents have been questioning friends, former employees, and associates of Governor Gavin Newsom of California and his wife, Jennifer Siebel Newsom. A person familiar with the matter, speaking anonymously, confirmed to The Times that multiple investigations are underway, including at least one focused on Jennifer Siebel Newsom’s finances.

In contrast to others of the administration’s political prosecutions, Jennifer Siebel Newsom presents a fairly checkered financial background. She has been the subject of allegations and at least one prior federal inquiry into potential self-dealing, improper financial arrangements between her nonprofit organizations and private entities, and possible conflicts of interest involving donors with business before the state.

Moreover, Governor Newsom’s former chief of staff, Dana Williamson, just pleaded guilty to three felonies, including lying to the FBI about confidential state litigation she leaked to a former business partner, an investigation that was initiated during the Biden administration.

So Todd Blanche and the Department of Justice, who have been pilloried in the courts and public opinion for their rank reprisal prosecutions against blameless targets such as James Comey, may be making a sort of calculated wager. Yes, the multiple investigations certainly seem of a piece with the indefensible investigations and indictments of other Trump enemies. But if they can prospect wide and deep enough, they may come up with a charge against Jennifer Siebel Newsom that they can make stick. And at that point, the calculation goes, their improprieties are redeemed. It’s all in the service of a valid prosecution. The fishing expedition has landed something in its net.

That reasoning is precisely, fundamentally wrong. And the reason it is wrong was spelled out with devastating clarity eighty-six years ago, in words that ever since have carried canonical status in the Department of Justice.

On April 1, 1940, Robert H. Jackson, then Attorney General of the United States and later Associate Justice of the Supreme Court and America’s chief prosecutor at Nuremberg, stood in the Great Hall of the Department of Justice and addressed the country’s assembled U.S. Attorneys. The speech, “The Federal Prosecutor,” came immediately to serve as a sort of Bible for federal prosecutors.

For more than eighty years, it has been taught to new prosecutors, quoted by senior ones (as well as countless courts discussing prosecutorial practices), and invoked in training sessions and ethics discussions across generations as the definitive statement of the value and danger of federal prosecutorial power.

Jackson began by declaring that the prosecutor “has more control over life, liberty, and reputation than any other person in America.” Notice the important substitution for Jefferson’s “the pursuit of happiness.” Jackson was keenly aware the mere investigation of a citizen can be ruinous. This prospect is a chief reason why prosecutors are not supposed to reveal anything about pending investigations, one of several cardinal principles that Blanche’s DOJ has simply ignored.

Jackson went on to explain an alternative way an unscrupulous prosecutor can exact reputational harm: “the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.” No doubt the Newsoms understand too well how that works.Jackson then identified what he called “the most dangerous power” a prosecutor possesses: “that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” It is in this realm, Jackson wrote, where the prosecutor “picks some person whom he dislikes or desires to embarrass” and then hunts for a charge to fit—that the abuse of prosecutorial power is most dangerous and consummate.

Critically, a prosecutor who has taken that step—chosen the person whom they dislike or desire to embarrass and then hunts for the crime to pin on them—has already committed the cardinal sin.

Jackson makes this point with pellucid clarity. “With the law books filled with a great assortment of crimes,” Jackson wrote, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.”

The grave danger is not the prosecutor who can’t find a crime. It is the one who picks his target first and then goes looking: not discovering a crime and finding its perpetrator, but “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

That, Jackson concludes, is when “the abuse of prosecutorial power is most dangerous and most complete.”

In truth, Jackson’s stern assessment was designed for a Department of Justice that would never even have considered bringing bogus, meritless charges to harass a president’s political enemies. That abominable practice—now a staple of Trump’s DOJ—was so far beyond the pale that it didn’t even figure in Jackson’s calculation. Jackson was speaking to prosecutors who still operated within the basic constraints of institutional good faith. That this Justice Department has shown us an even more dangerous and complete abuse of prosecutorial power doesn’t diminish the force of Jackson’s words.

Jackson’s classic admonition maps directly onto the multiple investigations of the Newsoms. Gavin Newsom is clearly a person whom Trump (and therefore Blanche) “dislikes or desires to embarrass.” In fact, Trump already called for Newsom’s arrest last year. It’s Gavin Newsom’s potential presidential candidacy, not Jennifer Siebel Newsom’s financial peccadillos, that lies at the core of the investigations.

The fresh wave of inquiries to Newsom’s friends and former employees hit around the time Trump announced his intent to nominate Blanche for Attorney General. There is no indication of any new factual development or new witness that landed Jennifer Siebel Newsom in the feds’ crosshairs.Gov. Newsom is not simply presidential timber but one of Trump’s and Blanche’s most prominent antagonists. He has called Blanche “the guy covering up the Epstein Files,” and accused Trump of selling the presidency for golf course approvals and cryptocurrency deals and a private jet. In Jackson’s taxonomy, he has made himself “personally obnoxious to or in the way of the prosecutor himself.”

It was Gavin Newsom who revealed the multiple investigations and fanning out of law enforcement to their friends and employees. In his video, Newsom accused Trump of using the Justice Department to punish a political enemy, described the investigation as a fishing expedition sifting through “years and years of random documents,” and was direct about the motive: “Donald Trump isn’t just coming after me because of my mean tweets. He’s coming after me because I am considering running for president.”

This strategy, also adopted by James Comey in the wake of the second set of charges against him, is the complete opposite of conventional wisdom. Except that wisdom was developed in the context of a Department that follows the rules and respects the Constitution.

In an honest Justice Department, targets of federal investigations keep their heads down, say nothing, and pray that no charges are filed and no one outside a tight circle ever finds out. That is the standard playbook, and it exists for good reason: federal investigations are strictly confidential, charges are not proof, and public exposure of a federal inquiry is itself a form of punishment. DOJ policy has long prohibited the Department from confirming or denying the existence of investigations precisely for this reason.

But the Newsoms had a second, equally compelling reason to get out in front: they cannot trust this Justice Department to stay quiet. This DOJ has a well-documented track record of improperly making investigative activity public for political effect. The Department has repeatedly publicized or permitted disclosure of investigations long before charges were filed—from the criminal investigation of Fed Chair Jerome Powell, to the renewed Russia-investigation inquiries, to public disclosures concerning Comey and Letitia James.

Newsom opted to wear the target as a badge of honor and to frame the investigation as evidence of his political prominence and the president’s fear. Newsom said he was proud to join the “hit list” of people standing up to Trump. He excoriated Trump personally: “You can subpoena my records. You can investigate me. You can harass me. Put my name on every and any enemies list you have, but leave my wife and family out of your personal vendetta.”

In the normal order of things, being investigated by the Justice Department is a mark of potential criminality. In this one, it is a mark of how much Donald Trump loathes and fears you: practically a credential for the 2028 primary. Newsom understands this, and he is playing it accordingly.

The Justice Department has already committed the abuse that Robert Jackson identified as the gravest danger and abuse of prosecutorial power. They have “picked the people” they think they should get, “rather than pick cases that need to be prosecuted.”

Jackson closed his address by sketching the ideal he urged every federal prosecutor to embody: someone who “seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

It’s as fundamental a statement of DOJ’s defining mission as we have, and generations of prosecutors took it as sacrosanct. Todd Blanche has trashed it, stomped on it, and then shredded it for good measure; and he has done so proudly, invoking the superior and ultimate authority of the president for whom he has publicly proclaimed his love.

The Newsoms are the latest victims of a Department of Justice that Jackson could not have begun to recognize. And the transgression is complete already, without regard to whether a phalanx of federal investigators and prosecutors is able to dredge up some tenable federal charge.

Reprinted with permission from Talking Feds.

Take The Kennedy Center Win -- And Then Get Up For The Next Battle

Well, that was pretty fun.

There was an almost physical satisfaction seeing the letters “Donald J. Trump” removed from the facade of the John F. Kennedy Center for the Performing Arts. We saw the tangible payoff of the triumph of the law over Trump’s raw vanity, like the expulsion of a usurper to the throne. It was reminiscent of the post-Communist toppling of the giant statues of Stalin that Russian people had had to endure for decades.

In its ultimate pettiness, the Trump administration launched a 12th-hour appeal for a short delay in complying with the order to take down the Trump name that had sullied the John F. Kennedy Center for the last six months. The apparent goal was to deny the gathering crowd the satisfaction of seeing the tyrant’s name physically removed. They got a 12-hour extension and then waited until the wee hours to comply, in a process that took less than an hour.

Besides the satisfaction of a modest but tangible victory, the case provides a workable template for many of Trump’s lawless power grabs.

A significant percentage of the outrages of Trump’s second term reduce to some version of the same move as with the Kennedy Center. Congress long ago made a decision and put it into law, and the Trump administration acted as if it could just ignore it.

The administration has refused to spend appropriated funds, asserted the power to fire officials Congress insulated by law, rewritten election procedures Congress had already legislated, and stood up a $1.776 billion “compensation fund” with no clear appropriations basis at all. Each of these fights involves its own tangle of doctrine and politics, but the general principle of steamrolling congressional decisions is the unifying factor.

In the case of the Kennedy Center, Congress passed a statute in 1964 designating the National Cultural Center as “the John F. Kennedy Center for the Performing Arts” and providing that it would serve as the nation’s “sole national memorial” to the slain president. Nothing in that statute gives a board of presidentially appointed trustees the authority to rename the institution. Full stop.

U.S. District Judge Christopher Cooper’s meticulous May 29 opinion runs 94 pages, but its holding fits in two sentences anyone can understand:

“The Kennedy Center’s organic statute makes crystal clear that the Center is to be named for President Kennedy, and it cannot bear any other formal name or public memorial based on the Board’s unilateral say-so. Congress gave the Kennedy Center its name, and only Congress can change it.”

That’s the whole separation-of-powers argument, stated with simple elegance.

The Trump takeover of the Kennedy Center was of a piece with his takeover of the government. The whole operation rededicated the Kennedy Center to the interest of the new Trump namesake, abandoning the broader cultural mission and service to the people that was its animating purpose.

The letters “THE DONALD J. TRUMP AND” had been installed last December, less than 24 hours after a hastily called, off-agenda board vote. When Rep. Joyce Beatty (D-OH), the board’s ex officio member and the only trustee not chosen for loyalty, tried to object, her microphone was cut; and the vote was gaveled through as “unanimous.” The new letters went up on the building’s portico the very next day. The fix was in.

The Center’s foundation, the entity raising private money for the renovation, adopted bylaws conditioning every donation on the name staying exactly as Trump wanted it: “Donald J. Trump and John F. Kennedy Memorial Center for the Performing Arts.” If the Center ever removed Trump’s name from “its filings, marketing, branding, façade, or any other affiliated location,” the Foundation would claw back every dollar it had given.

Anyone who has served on a nonprofit board knows what the job entails: looking out for the health, finances, and reputation of the institution. It was a straightforward breach of fiduciary duty for the board to insert a provision saying that if the Center ever complied with the law and dropped Trump’s name, every dollar raised under the Trump brand would be clawed back. Plainly, the only person this policy served was Trump.

The same instinct drove the emergency stay motion DOJ filed once the litigation went south. As with the wacky legal submissions in the ballroom case, the brief here seemed to bear Trump’s personal imprint: its first paragraph runs three solid pages, larded with overheated rhetoric to the effect that only Trump could fix the Center.

It didn’t matter legally, but in fact, that submission was dead wrong. Judge Cooper’s opinion, along with a stream of accounts from people who worked at the Kennedy Center before Trump’s team purged them, makes clear that the takeover, far from being the salvation Trump claimed, gutted a storied institution.

Under Trump’s nominal leadership, the institution was quickly driven into freefall. A discharged curator, Josef Palermo, described leadership with no arts management experience whose apparent goal was to “show up on a red carpet and take pictures,” and a fundraising operation that sold proximity to Trump as the product. His overall word for the takeover: desecration.

That same pettiness ran through the broader record of how this institution treated the artists it depended on. A series of performers canceled their bookings, unwilling to lend their names to the Trump brand.

In January, the great American composer Philip Glass withdrew the premiere of his Symphony No. 15, “Lincoln,” from the Center, explaining that “the values of the Kennedy Center today are in direct conflict with the message of the symphony.” Trump’s response was a sneering dismissal.

The institutional toll was equally stark. The Washington National Opera, the Center’s resident company since 1971, announced it would leave, while ticket sales across the Center’s programming plunged 70 percent after the renaming. It was the same flim-flam Trump perfected decades ago in Atlantic City and New York, bankrupting one venture after another while insisting each was the greatest of its kind, selling brass and calling it gold.

As it does in every dispute, the administration led with a standing argument—not that it had the legal right to rename the Center, but that nobody had the right to bring a court challenge in the first place. The emergency stay motion repeated the claim that Rep. Joyce Beatty, the board’s ex officio member who brought the suit, lacked standing to challenge any of this in the first place.

Cooper didn’t buy it. Beatty, as a trustee with fiduciary obligations under the statute, had standing to challenge the full board. And at that point, the path was clear to restore what Congress had written into law. Congress gave the Kennedy Center its name, and only Congress can change it. Q.E.D.

Cooper’s order didn’t specify that the restored name had to remain visible, and that apparently gave someone in the White House the idea of covering it with a tarp—to spare Trump’s bruised feelings and deny the public the satisfaction of watching his name come down.

It’s as if the federal government were saying that if Donald Trump’s name couldn’t appear on the building, nobody’s could. Had the protagonist been anyone else, the spectacle might have seemed pitiable. Because it was Trump—the third-grade spoiled child incarnation—it registered instead as ridiculous.

That fairly absurd coda aside, it’s evident that while legal doctrine fueled the opinion, public outrage at Trump’s vainglory supplied the kindling. It’s one of several recent episodes in which the public, and as a result at least some Republicans in Congress, stood against the Trump tide. Democracy-loving Americans should take the win, and then get up tomorrow and fight the next fight.

Reprinted with permission from Talking Feds.

Trump Lawyer: We Can Bulldoze The Statue Of Liberty Without Any Public Recourse

A single exchange in last Friday’s District of Columbia Circuit argument laid bare the Trump administration’s strategy in a series of recent cases: push through deeply unpopular and frequently illegal measures, disable Congress, and freeze out the public from being able to do anything about it.

The exchange concerned Trump’s most cherished goal of remaking the White House—the people’s house—in his imperial and garish image.Recall how we got here. Last fall, with no congressional authorization and no completed legal process, the administration simply got up one day and started digging a huge hole where the East Wing had been. By the time the National Trust for Historic Preservation sued in December, the East Wing was gone, and large-scale excavation was well underway.

Judge Richard Leon initially rejected the Trust’s first two injunction requests because they rested on flawed legal theories. Then, in March, he granted a preliminary injunction on the Trust’s amended complaint, halting above-ground construction. The administration took an emergency appeal, and the DC Circuit administratively stayed the injunction the very next day, permitting construction to proceed while the appeal was expedited.

By the time of Friday’s argument, three million pounds of steel rebar were in the ground, and the structure was beginning to rise above it.That brings us to last Friday’s argument. The DC Circuit is commonly considered the second most powerful federal court in the nation. Given the court’s sophistication and the personal importance to Trump of the project, the administration sent its version of the A-Team. Yaakov Roth is a senior official in the DOJ’s Civil Division, as well as a lawyer with a gold-plated résumé that includes a clerkship for Justice Antonin Scalia and extensive appellate experience.

The most active questioner on the panel was Obama appointee Judge Patricia Millett. In the course of pressing Roth on the administration’s standing argument, Millett dropped the hypothetical that crystallized the Department’s position.

“If this were the Statue of Liberty,” Millett asked, “the people whose ancestors—that was the first thing they saw coming to this country, but the government moved too fast—nothing can be done by them to challenge it?”

Roth’s answer: “I think that’s right, yes.”Roth’s answer was not a mistake under pressure. He had thought through the implications of the administration’s position and understood that Millett would be quick to exploit any inconsistency and use it to unravel the administration’s case.

Millett simply followed the logic to its destination and asked him to confirm it. He did, as he had to. The only check, he allowed, would be Congress—which would have to pass a law that Trump could veto, requiring two-thirds to override.

Millett then named what she had gotten Roth to concede: “Move fast and break things and then nobody has standing.” Roth conceded that was essentially correct.

That is the administration’s playbook for a series of recent high-handed moves: the $1.8 billion slush fund for January 6 defendants; the systematic destruction of presidential records; the collusive settlements with Flynn and Bannon; and now the ballroom rising on the demolished White House East Wing.

In each of these examples, the administration follows the same two-step plan.

First, neuter Congress: anything requiring legislation to stop faces a certain presidential veto, and the two-thirds override is a mathematical fantasy as long as enough Republican members remain terrified of Trump’s one remaining real weapon, the threat to come after them.

Second, neuter the courts: argue that no one has legal standing to challenge what is being done, that the injury is too generalized, too abstract, too aesthetic to cross the Article III threshold.

The argument is not that they’re acting in the interests of the American people; it’s rather that the American people can’t do anything about it.

Congress can’t act. Courts can’t hear it. The bulldozer rolls with no brakes.

There is nothing inherently improper about an administration’s invocation of standing doctrine. The requirement that plaintiffs show a concrete, particularized injury before federal courts will take up their claim is a valid constraint, rooted in Article III, and courts across the ideological spectrum have enforced it against litigants of every stripe. The constitutional design is that federal courts are not a substitute for legislative action.

But the administration has taken its reliance on standing to a new low, and used it to bypass legal accountability for a series of issues of intense popular concern. It has combined aggressive standing arguments with bare-knuckle intimidation of Republicans in Congress. The result is a pincer movement that leaves the public—the people who overwhelmingly object to a $1.8 billion giveaway to January 6 defendants, who feel in their bones that the White House belongs to all of them, who do not want their government shredding documents that belong to the people–with no branch to turn to and no courthouse door that will open.

The power of the Millett hypothetical is that it smokes out where the administration’s argument leads. Can the executive lay waste to the Statue of Liberty? Damn right, says Roth—and even if it’s a rank violation of the executive duty to take care, nobody can stop it because nobody has standing.

It’s their game plan, anyway. But the administration’s retreat last week on the slush fund shows what can crack it: a combination of legal exposure and political pressure. The payout to January 6 insurrectionists was odious as well as unconstitutional, and the legal attacks and political pushback reinforced each other. That process is ongoing: Judges Williams, Brinkema, and Leon can still bring the legal hammer down, making it that much harder for the administration to work its will, and for Republicans in Congress to just acquiesce to Trump’s lawless action.

That is the 1-2 punch the moment calls for, and it is available for the ballroom as well. Roth told the court that the public has no voice in the Mar-a-Lago-ization of the people’s house. We can prove him wrong. The task is to raise the political stakes so that every Republican representative feels the heat for going along with Trump’s massively unpopular project.

The White House is the most universally recognized symbol of the national government. Its relatively modest, neoclassical structure stands in harmony with the Capitol and the Supreme Court up the hill. It is the building that millions of schoolchildren visit, that Americans call “the people’s house.” It’s the antithesis of the gaudy ornateness of Trump’s gold-plated imperial design.

There is a profound un-American quality to Trump’s ballroom makeover. He is, in effect, trying to crown himself Emperor—cowing Congress and parrying court action with aggressive standing arguments pressed all the way to the Supreme Court. It is a gesture of deep contempt for the country whose most beloved building he is trying to remake in his own image.

Many of my colleagues believe that he can’t be stopped. I see the force of their positions, but I don’t share them. My best guess is that Trump’s Xanadu monstrosity does not get completed, even though it has been engineered to parry every legal and political challenge the system can throw at it. Some combination of legal and political resolve will hold the line.

An administration lawyer told the judges in the second most powerful court in the country that no court can stop a president who moves fast enough from destroying the White House or the Statue of Liberty. The administration is counting on paralyzing the courts and the Congress, and ultimately on the public’s apathy. The slush fund showed that’s a losable bet. The formula is public pressure, judicial accountability, and Republicans made to own it at the polls. The first part is up to us.

Reprinted with permission from Talking Feds.

As Trump Retreats From Slush Fund, Judge Must Probe This Bogus Scheme

As of this afternoon, President Trump is retreating from the $1.8 billion Anti-Weaponization Fund, according to The New York Times and multiple other reports. The White House communicated the decision to Republican leaders on Capitol Hill today. The decisive moment came earlier Monday, when Speaker Mike Johnson met with Trump and told him bluntly that the fund was torpedoing the $70 billion immigration enforcement bill—the centerpiece of the administration’s legislative agenda.

That conversation, a source says, is what finally convinced the president to drop it. Senate Majority Leader Thune had already told reporters that changes were a “safe bet” and that “the best way to handle it is if the administration decides to shut it down themselves.” House Republicans had been actively looking for ways to kill the fund, and the Senate was already in open revolt—with more than a dozen Republican senators, including Lindsey Graham, privately urging Trump to pull the plug.

Trump and the DOJ waged a similar, strategic retreat a few weeks ago, when his lawyers filed a panicked voluntary dismissal two days before they would have had to walk into Judge Williams’s courtroom and explain, under the solemnity of federal proceedings, how Donald Trump suing an agency he controls, defended by his own former personal criminal defense lawyer, constituted a genuine adversarial lawsuit. Pinned between a rock and a hard place, he bolted.

So Trump blinked. Again. And on an ill-advised move—bogus and illegal on multiple fronts—on which he nevertheless had fully staked his diminishing political capital.

DOJ issued a statement today that it would “abide by the Court’s ruling”—meaning Judge Leonie Brinkema’s temporary restraining order out of Virginia, which froze the fund Friday, not Judge Kathleen Williams’s order reopening the settlement, about which more below.

The DOJ statement defended the fund, said nothing about it being permanently dead, and left conspicuously open the question of whether it could be revived.

So the parameters of the retreat remain unclear as of this writing. It may be a full capitulation. It may be a tactical pause dressed up as a concession. Either way, as a matter of political reality, it is a humiliation—the administration’s biggest self-inflicted wound of Trump 2.0, now compounded by a very public retreat.

In my dispatches on this scandal going back to February, and in my conversations with Representative Jamie Raskin and others, I argued that while the legal avenues for challenging the fund were real but difficult—standing problems, appropriations law hurdles, the fund’s architecture designed specifically to be unreachable—the political blowback would ultimately be too powerful to ignore.

That was because the emotional and political core of the entire scheme was the proposition that the January 6 rioters were victims—“patriots” at a “love-in,” not insurrectionists at a riot designed to hijack the Constitution—entitled to taxpayer-funded compensation. That core was part and parcel of Trump’s relentless and corrupt effort to whitewash history and his own role in trying to steal the 2020 election.

And the political winds, in fact, proved too strong to ignore. The moment Republican Senators and House members had to confront the question—do you support giving money to the people who beat police officers on January 6?—the fund became politically radioactive. Ted Cruz called a meeting with Blanche and Senate Republicans last week one of the roughest he had seen in his Senate career. Another attendee called it the toughest grilling of any administration official they had ever witnessed. Lindsey Graham, of all people, privately urged Trump to drop it.

Thune told reporters that “the best way to handle it is if the administration decides to shut it down themselves.” And Johnson, in his Monday meeting with Trump, delivered the message that finally landed: The fund was killing the immigration bill, and House Republicans were looking for ways to stop it with or without the White House.

Senate Democrats twisted the knife further today, with Schumer releasing a “Dear Colleague” letter vowing a coordinated multi-front assault—floor votes, oversight, appropriations fights—and Senators Schiff, Kelly, and Slotkin introducing the Drain the Slush Fund Act to bar any payouts to those convicted of crimes or connected to January 6. They might not have been positioned to stop the arrangement legally, but they were able, with the foreseeable aid of Republican defectors, to keep the spotlight turned up high enough to make it impossible to look away, as the White House plainly was hoping.

Trump will now take serious lumps from the MAGA base—far more than if he had never embarked on this asinine detour in the first place. The pardoned rioters who were salivating over their anticipated windfalls are going to be furious. Brandon Fellows, who spent three years in prison for his January 6 conduct, had already sought $30 million from DOJ before the fund was even announced and told CNN he was “feeling confident.” The Proud Boys leader expected a $2 to $5 million personal payout. Robert Gieswein—who marched with the Proud Boys, sprayed aerosol irritant at Capitol Police officers, threw a punch at another officer, and served four years in prison—told The Free Press he wants up to $10 million, though he’d be willing to settle for less.

It looks as if all of them, and the roughly 1,600 other January 6 defendants, are going to be left empty-handed and enraged. More, Trump is backing down precisely because the politics of supporting them became untenable—it is they whom Trump is plainly abandoning. All of that amounts to a richly deserved comeuppance for Trump’s staggering audacity in trying to make the American people not just pardon but financially reward the most serious assault on American democracy since the Civil War.

But if Trump, Blanche, and the attorneys involved in the original scheme—including Associate Attorney General Stanley Woodward and Trump private attorney Boris Epshteyn—think that retreat puts an end to the prior misconduct, they may be in for a rude surprise.

Whereas Brinkema’s order froze the fund’s operation going forward, Williams is asking a fundamentally different question: What already happened in her court? She is not interested in where the fund goes from here. She is interested in whether she was deceived, whether her court served as an instrument of fraud, and whether the lawyers who were involved in the bogus settlement violated their most basic obligations to the tribunal.

Last week, a bipartisan group of 35 former federal judges filed a motion urging Williams to reopen the case under Federal Rule of Civil Procedure 60(b)(4). Their filing was blunt: “The Court was deceived.” They argued that Trump and his co-plaintiffs deliberately withheld any mention of the settlement from their dismissal notice—timing the withdrawal to outrun Williams’s scrutiny—and that the resulting arrangement “is a product of collusion and is itself a fraud on the Court.”

Williams did not hesitate to act on the suggestion. On Friday, she issued an order reopening the case, invoking Rule 11—which requires attorneys to certify that any filing serves a legitimate purpose—and citing extensive case law for the proposition that a court may raise Rule 11 violations on its own initiative and that a party cannot avoid sanctions simply by voluntarily dismissing the case.

I expect the administration to try the same move with Williams that it just tried with the fund itself: a strategic retreat dressed up as compliance. He and Epstheyn may try to elude her order altogether, or failing that, to submit on June 12 a filing that treats the whole reckoning as moot: the case is closed, the voluntary dismissal is self-executing under Eleventh Circuit precedent, there is nothing left for her to adjudicate. It is the legal equivalent of a stiff arm: not quite refusing to respond, but responding with nothing of substance.

Williams is unlikely to find that satisfying. We have seen this movie before—most vividly in the Boasberg-Bove-Rao confrontation over deportation flights, where the administration’s combination of contempt and foot-dragging met a judge who simply would not stand down. I don’t think that a dismissive June 12 filing will cause her to close up shop. Nor should it: the retreat from the fund is completely separate from the past potential abuse of the court.

If Williams insists on getting to the bottom of what happened, the various lawyers and participants will look like flies on flypaper, trying to wriggle away from the consequences of their conduct. That would presumably include Trump and the administration’s tried-and-true technique of seeking emergency review in the Eleventh Circuit, and if that fails, the Supreme Court (where the circuit justice for the Eleventh Circuit is Clarence Thomas). But in effect, they’d be doubling down on the whole dubious wager, and risking even greater humiliation.

Williams is not done. She has the record, the legal tools, and clearly the will to press forward, and the 35 former judges have handed her both the doctrinal roadmap and the judicial mandate to act. Political retreat does not erase a fraud on the court. The lawyers who engineered this heist still have a June 12 deadline, and a federal judge waiting for their answer.

The fund may be withering. But the investigation and accountability of the overall constitutional swindle may just be getting started.

Reprinted with permission from Talking Feds.

With Slush Fund, Trump And Blanche Conjured A Metastasizing Scandal

Editor’s Note: This is the second part of a two-part essay on the Trump administration’s $1.776 billion “Anti-Weaponization Fund”—the administration’s most grave dereliction of duty since the January 6th pardons themselves. Part One catalogued the multiple layers of legal violation: the collusive non-lawsuit, Judge Williams’s declaration that no settlement exists, the Judgment Fund statutes and DOJ regulations trampled, and the administration’s cynical bet that the corrupt architecture is legally unreachable. This part details the most recent developments in what has now become a full-blown scandal, analyzes the gravest injury of all—the one done directly to the American people—and ends by discussing possible lines of resistance to the whole racket.

Trump and Blanche are betting they can get away with the IRS settlement and its $1.8 billion fund, but they already are facing a rip current of resistance.

The bet is that the heist is politically outrageous but legally stitched up: file an unconstitutional lawsuit, then voluntarily withdraw it before the judge could rule; bury a billion-dollar fund in the fine print of a phony settlement; count on a compliant Republican majority to swallow the violations of congressional appropriations law without a word. One or two news cycles, then move on.

But it’s not working out that way so far.

The scandal is metastasizing.

The days since Acting Attorney General Todd Blanche announced and defended the agreement have been brutal—for Blanche in particular.

Trump has left Blanche to take the heat, claiming on Monday that he knows “very little about it” and “wasn’t involved in the creation of it.” This from the man who said he was “supposed to work out a settlement with myself” and instructed the Treasury Secretary to “tell ‘em to pay me.” The president who openly boasted about controlling both sides of his own lawsuit suddenly has no idea how the resulting $1.776 billion fund came to exist.

It falls to Blanche to defend this toxic waste dump, and he has jumped to the task with his characteristic eagerness to please the man who controls his future at DOJ. Blanche has repeatedly suggested that the arrangement is not unprecedented and that Trump “isn’t taking a dime.” Both arguments have been blown out of the water.

The New York Times reported Wednesday that career lawyers at the IRS last month prepared a 25-page memorandum laying out multiple defenses to Trump’s lawsuit and recommending the Justice Department move to dismiss it, as it had done in other similar cases. It identified two likely winning arguments, including one that DOJ successfully advanced in another case with the same facts.

That puts the lie directly to Blanche’s suggestion that the “settlement” here is basically business as usual—unless he means business as usual for Trump, who, of course, calls the shots. Instead of the vigorous defense the case demanded, DOJ rolled over in a lawsuit its own client agency had told it was meritless and should be dismissed.

The day after the settlement was announced, DOJ quietly expanded the agreement with a further sweetener: the IRS will forgo any audits of Trump, his family, and related entities. IRS procedures require an annual audit of the president’s tax returns. A 2020 New York Times investigation found that a loss in one pending audit could cost Trump more than $100 million. That $100 million is a personal benefit to Trump, funded directly by taxpayers, on top of the more than $20 each of the 84.2 million American families are already absorbing to pay for the $1.8 billion fund.

That makes Blanche’s assurance to the Senate that “President Trump isn’t taking a dime” comically misleading. Trump and his family have effectively been handed a blank check on tax evasion and tax fraud—written by all of us. Recall that when we finally got a glimpse of Trump’s taxes, they revealed a shocking pattern of dubious deductions and past losses. This add-on guarantees that scrutiny of exactly that kind of conduct is now permanently off the table.

As I wrote in Part One, this scandal has layers, and each one is more rotten than the one beneath. The multiple legal violations have been well-catalogued. The fundamental illegal core is that the purported settlement was of a collusive lawsuit that couldn’t be brought in federal courts and couldn’t lawfully be the basis of an expenditure from the congressional Judgment Fund. But cataloguing the legal violations risks becoming a fog that obscures something simpler and more fundamental.

Imagine Trump had brought, and voluntarily dismissed, the sham lawsuit, and rigged a bogus settlement for $5,000. It would have been obnoxious. It would have been legally defective in every way described in Part One. But it would not have been the most serious political scandal of Trump 2.0. The scale and the identity of the beneficiaries are what elevate it to one.

That is because the deepest offense here is not the legal violations—grave as they are—but the unconscionable affront to the American people. That affront operates on two distinct levels.

The first is financial. Trump “settled” a case worth nothing at all—a case the judge declared left no settlement of record, that could not be heard in the federal courts, and that his own agency’s lawyers said should be dismissed. Moreover, Trump’s underlying claims, even if they could be brought, were worth at most a few thousand dollars under the governing statute, which caps damages at $1,000 per unauthorized disclosure. In return, the public pays as much as $2 billion or more for the dismissal of a worthless lawsuit. That dwarfs the payouts in the Teapot Dome scandal—where, moreover, the government at least got some oil in return. The art of the deal, indeed.

The second offense is moral and civic. The American people are being compelled to fund—and by funding to implicitly endorse—a bounty for the people who stormed the Capitol, beat police officers, and tried to stop the peaceful transfer of power. All of us are, in effect, being conscripted into Trump’s campaign to rewrite the history of January 6th. The message the fund sends—that the rioters were victims, that their convictions were injustices, that the government owes them not accountability but a check—is sent in all of our names, with all of our money. We are being made, without our consent, co-signatories to the biggest lie of Trump’s presidency.

Outgoing Republican Sen. Thom Tillis put the case in exactly those terms: “I think it’s stupid on stilts,” Tillis said. “When you take money from me to give to a purpose that I vehemently disagree with, that’s tyranny.”

At the Senate hearing, Sen. Jeff Merkley (D-OR) asked Blanche directly: “Do you feel they should get compensation after being convicted of violent acts against police officers?” Blanche’s demurral—“My feelings don’t, don’t matter, Senator”—was as revealing as any direct admission.

The notorious offenders who will soon be lining up for their millions have confirmed the worst expectations about the fund’s intended uses. A lawyer representing January 6th defendants declared that “everybody’s very excited about it.” Tommy Tatum, charged with civil disorder for interfering with police, hailed the fund as historic: “This is the UNITED STATES DEPARTMENT OF JUSTICE acknowledging the possibility that Americans were targeted through political abuse of government power.” Pardoned rioters are already discussing how to spend their anticipated windfalls: new cars, new houses, money to scrub their names from Google. One pardoned rioter charged with child molestation allegedly promised to pay off his victim with the payout he was certain was coming.

Trump and Blanche are trying to divert focus from the prototypical beneficiaries by suggesting the fund is nonpartisan. At his Senate hearing, Blanche blithely asserted that the fund is for “anybody... It’s not limited to Republicans.” But a few surprising beneficiaries can’t alter the fundamental character of Trump’s largesse with the public’s money. And in any event, we won’t even know who gets the money. The identities of recipients and the amounts they receive are to remain confidential, known only to the attorney general. The claim of evenhandedness is unverifiable by design.

The beneficiaries will not consist solely of the 1,600 January 6th defendants. Many others who took up Trump’s corrupt fight will surely line up at the trough: the fake electors from seven states; Trump aides who paid legal fees responding to Jack Smith’s grand jury; Republican members of Congress whose phone records were seized; One America News, which settled defamation suits for promoting 2020 election lies and is “seriously considering” filing a claim; and MyPillow’s Mike Lindell, who claims $400 million in losses from “weaponization.”

How’s that for a parade of horribles? It’s like a remake of Night of the Living Dead.

Trump and Blanche designed this to be legally unreachable. Taxpayers generally cannot sue to contest specific government expenditures. Members of Congress face enormous standing hurdles. Judge Williams’s courthouse door is closed. Even if enough Republicans join Democrats for a counteracting law, Trump will veto it. The architecture is built to be beyond the reach of the law.

I will be writing more about these obstacles, and whether and how they might be overcome. The take-home point is that the pushback must be immediate, impassioned, and countrywide.

The scheme already has generated the biggest Republican pushback of Trump 2.0. Capitol Hill Democrats are up in arms, which Trump probably expected, but Republicans are adding their dissent to Tillis’s tart comment. Just yesterday, Republicans abandoned plans to take up an immigration bill out of reported deep concerns about the $1.8 billion fund, a development the New York Times called “stunning.”

More ominously for Trump, Senate Majority Leader Thune told reporters that “there are and will continue to be a lot of questions that the administration is going to have to answer.” Senator Mitch McConnell lamented, “So the nation’s top law enforcement official is asking for a slush fund to pay people who assault cops? Utterly stupid, morally wrong—take your pick.” Pennsylvania Congressman Brian Fitzpatrick went further, telling reporters he “100%” wants to prevent the fund. He has sent a letter to DOJ demanding answers and is already drafting legislative text to stop it. Look for him to have company in his party before too long.

The task now is to keep these fires burning. All of us need to keep the issue front and center through the midterms and beyond, when, if the Democrats take the House, it will be time to consider impeachment.

We have to make the case, in every forum, including the office and the kitchen table, that this grotesque scheme is a bridge too far. Every Blanche appearance should include a demand to make public the identities of the fund’s beneficiaries. Every Republican member of Congress should be asked at every town hall whether they support giving taxpayer dollars to the people who beat police officers on January 6th. The Democrats should bring up any procedural device to force Republicans to state their position about the fund on the record. And every Republican who voices support should be made to answer for it on the ballot in November 2026.

Trump’s presidencies have been defined by self-dealing, but never as raw and consummate as here—a barely disguised, immense enrichment of himself and his allies that would make Putin and Orbán proud. He has pushed democracy to the precipice.

Reprinted with permission from Talking Feds.

Trump Built His Slush Fund 'Settlement' On A Lie -- And An Impeachable Offense

Editor’s Note: The creation of a $1.8 billion fund for supposed victims of (nonexistent) weaponization of the Department of Justice in the last administration is the most grave dereliction of duty in Trump 2.0, save only the pardons of the January 6 offenders. Trump and Blanche are attempting to bypass the constitutional responsibilities of all three branches. At the same time, they are trying to force the American people to pay a wholly undeserved bounty to perpetrators of some of the most perfidious crimes against the nation in our history.

This is a two-part essay. Today’s part canvases the multiple legal violations and anomalies of the scheme to settle a bogus lawsuit in exchange for creation of the fund. Part Two will focus on the ultimate victims—the American people—as well as discuss what can be done going forward to try to blunt or nullify the outrageous swindle.

The most corrupt president in the nation’s history has managed to reach a new low.

Not in terms of sheer violence to the country: that dubious distinction remains with his repugnant pardon of the January 6th offenders. But for layer upon layer of corruption—abuse of every branch of government, the Constitution itself, and the American people—the bogus “settlement” and creation of a $1.776 billion fund for supposed victims of Biden’s weaponization is a new nadir.

Imagine that Trump had simply announced the creation of a $1.8 billion fund, drawn from general DOJ funds, to compensate Proud Boys, Oath Keepers, and everyone else who claims they were victimized by Biden’s weaponization of the justice system.

The political uproar would have been immediate and thunderous. Trump’s allies in Congress would have buried their heads deep in the sand while Democrats went on the political warpath, promising, among other things, a thorough investigation and challenge if they regain the House, including a possible impeachment inquiry.

Yet what Trump and the administration—which is to say, Trump and Trump—in fact did was much worse: a raw violation of his constitutional duty to faithfully execute the laws, an abuse of every branch of government, and a sizable shakedown of the public’s money. All of it by subterfuge: using a sham lawsuit, a rigged settlement, and a voluntary dismissal timed to outrun a federal judge who was closing in on the scheme.

This scandal has layers, and each one is more rotten than the one beneath it. With the exception of the January 6th pardons themselves, it is the most glaring violation of the public trust in Trump 2.0—and that is a crowded field.

I have been writing about Trump’s IRS lawsuit since February—calling it what it is: a collusive non-lawsuit in which Trump controlled both sides. He sued the IRS and Treasury, agencies he runs with an iron fist, defended by a DOJ led by his own former personal criminal defense lawyer, Todd Blanche, who declared at his first press conference, “I love working for President Trump.”

As I explained in prior pieces, this fails the Constitution’s basic requirement that federal courts only hear genuine cases or controversies between adverse parties. You don’t have a lawsuit when the plaintiff tells reporters he is going to “work out a settlement with myself” and instructs the Treasury Secretary to “pay me.” Asked about it at the White House on Monday, Trump said he knows “very little about it” and “wasn’t involved in the creation of it.” The man who said “tell ‘em to pay me” suddenly knows nothing about it. Which tells you much of what you need to know.

Judge Kathleen Williams of the Southern District of Florida saw it too. She ordered briefing on the collusion question and appointed a gold-plated set of amici—former federal judge and legendary AUSA John Gleeson, former Solicitor General Donald Verrilli, and Faith Gay—to present the arguments that neither Trump nor his captive DOJ could be trusted to make. That filing was supplemented by a brief on behalf of 93 members of Congress arguing flatly that the court lacks jurisdiction because the lawsuit is collusive.

Two weeks ago, I predicted that DOJ would run rather than face that hearing. They did, filing a notice of voluntary dismissal just two days before they would have had to choose between two untenable alternatives: either concede the DOJ stands in genuine opposition to Trump, a position the entire record belies, or admit it does his bidding—which would be a confession that the lawsuit was a constitutional nullity from the start. They chose an off-ramp instead.

The dismissal instructs Judge Williams that there was nothing left she could do, but that’s not quite right. It’s true that Judge Williams had to accept Trump’s voluntary dismissal: the Eleventh Circuit has held that such a notice is self-executing and strips the district court of jurisdiction. But Judge Williams put down a marker in her order granting the dismissal, and it’s going to continue to have a legal and political impact on the pushback against the fund.

After canvassing the law strongly indicating that Trump v. IRS was a collusive suit, i.e., a constitutional nullity, Judge Williams wrote that because the notice of voluntary dismissal “does not reference or include a stipulation of settlement, there is no settlement of record.”

Read that again. There is no settlement of record before her court. The entire settlement agreement, which says up front it is settling the case before Judge Williams, is built on a lie, and the parties know it. The agreement declares that the United States—you and I—receive the benefit of the dismissal of Trump’s lawsuit. But a lawsuit that is unconstitutional and cannot be brought in federal courts is of zero value. You cannot settle something that never existed. The consideration on the government’s side of this transaction is pure air.

Williams expressly tied the statement of no settlement to the “outstanding question as to whether an actual case or controversy existed.” That means, at a minimum, that the unconstitutionality of the original case, which is the only even purported consideration for the creation of the fund, is in serious doubt.

Worse, as Williams made plain, the DOJ under its own regulations has “an independent obligation to uphold the public’s strong interest in knowing about the conduct of its Government and expenditure of its resources”—and it filed nothing to fulfill that obligation. Not a word in court to justify spending $1.776 billion of public money. (Note the cute nod to 1776, just months before the semiquincentennial, as if by a feat of patriotic magic that’s the fair value) And how could there be? The administration is creating a huge slush fund to benefit some of the most perfidious offenders against the Constitution in our history, in exchange for the dropping of an unconstitutional non-lawsuit.

This is not a settlement. It is a money grab. It’s a party for all of Trump’s fellow travelers who claim the Biden administration weaponized the DOJ and harmed them, featuring a piñata with $1.8 billion that Trump will let fly. And who will oversee the distribution of the booty? Five commissioners appointed by Blanche and serving at Trump’s pleasure. The fix is in up and down and side to side.

Stuart Rhodes, five million? Sounds about right. Steve Bannon, thirty million? Why not? Every January 6th offender—people who together committed the most serious assault on American democracy since at least the Civil War, and who have already had their entirely fair convictions swept away by pardon—can dip into the cookie jar.

And, another of the cascading outrages of the whole setup, the agreement provides that the names of people who get payouts and the amounts they draw from the honeypot are to remain confidential, provided only to the attorney general.

Oh, and one more thing added this morning as if by afterthought. The DOJ has beneficently appended a promise that the IRS will not pursue any claims it may have against Trump and his family over unpaid taxes. That significantly increases the enormous price tag to the public of the deal, in exchange for, well, nothing.

Blanche reaches for Keepseagle v. Vilsack as legal cover. That Obama-era settlement came after eleven years of genuine adversarial litigation by Native American farmers proving decades of documented discrimination—a payout representing 98 percent of what plaintiffs could have won at trial. This case started and ended in four months, with the government never filing a single word in defense. The analogy doesn’t limp. It doesn’t walk at all.

The arrangement is also a direct affront to Congress, and a rank violation of the law governing disbursement of money Congress has allocated.

Congress has set aside money in the Judgment Fund precisely for bona fide settlements of actual or imminent litigation against the United States. The GAO has explained that the Fund “is limited to litigative awards, meaning awards that were or could have been made in a court.” The law that Blanche invokes—28 U.S.C. § 2414—requires the same: it authorizes settlements only for suits against the United States, not for separate free-standing compensation funds paying unnamed future claimants who have filed nothing and sued nobody.

Rep. Jamie Raskin (D_MD) —who, as ranking member of the House Judiciary Committee, may be leading the charge against this whole foul arrangement—threw down the gauntlet Monday. Only Congress has the power to appropriate federal dollars, he said, and Congress never authorized a nearly $1.8 billion political slush fund for aggrieved MAGA foot soldiers and sycophants. Sen. Ron Wyden (D-OR), the ranking member of the Senate Finance Committee, was even more pointed: he called it the most brazen theft and abuse of taxpayer dollars by any president in American history.

In Blanche’s Senate testimony today before the Appropriations subcommittee on the overall DOJ budget request, he evaded answering whether January 6 offenders who had attacked Capitol police officers would be eligible for a bounty. He adopted the all-purpose deflection that he was not going to be one of the Commissioners.

During the same hearing, Democratic Senators said they expected there to be a vote on the slush fund as part of the “vote-a-rama” later in the week. More about that in Part 2, which will explore possible lines of future resistance.

And then there is DOJ itself—an institution with its own independent obligations, which this arrangement completely compromises.

Federal statute limits the attorney general’s settlement authority to “compromise settlements of claims…for defense of imminent litigation or suits against the United States.” 28 U.S.C. § 2414. The Judgment Fund regulation at 31 C.F.R. § 256.1 likewise requires that payments be for “actual or imminent litigation” and comply with “the statutory and regulatory requirements that authorize the award or settlement.” DOJ’s own settlement policies prohibit paying claims of parties who were never before the court.

The Anti-Weaponization Fund violates every one of these requirements. It pays future claimants who were not parties to Trump v. IRS, who have no pending litigation against the United States, and whose claims do not yet exist. Blanche’s own letter concedes as much, stating that the corpus “does not represent the value of any current claim by Plaintiffs.” He intends that as an explanation. It reads as a confession.

It also sets up a minefield for some unlucky Executive Branch official to navigate. Someone will have to certify that the funds are spent in compliance with 28 U.S.C. §1414, which governs the DOJ’s settlement authority. But that statute specifies that the funds can only be used for defense of “actual or imminent litigation.” As the brief filed for 93 members of the House explains, “There must be a legitimate dispute over either liability or amount.” After all, “the Judgment Fund is limited to litigative awards, meaning awards that were or could have been made in a court.” (quoting GAO report and CRS article on Judgment Fund; emphases in brief).

That may explain the report in this morning’s Wall Street Journal of the abrupt resignation of the general counsel of the Treasury Department, which will bear responsibility for approving the use of the government’s judgment fund. Brian Morrisey is a highly credentialed lawyer, a former clerk to Justice Clarence Thomas who left a partnership at the white shoe firm of Sidley & Austin to take the plum government job. The Journal report leaves the conspicuous implication that Morrisey’s exit was to avoid having his fingerprints on the programmatic approvals going forward.

You can bet that many more government officials will be taking cover before the radioactive fallout from this constitutional meltdown has run its course. In the second part of this essay, I will analyze the grave injury to the American public and sketch possible lines of legal and political resistance to the whole debacle.

Scam! Why Blanche Is Rushing To Settle Trump's Bogus $10 Billion IRS Lawsuit

I recently wrote a long piece explaining the greater importance of what looked like a routine briefing order in Trump’s $10 billion lawsuit against the IRS.

The order signaled that Judge Kathleen Williams of the Southern District of Florida was on to the administration’s scam of letting friends and allies—and maybe Trump himself—scoop up large sums of money from the treasury under the pretense of settling lawsuits that weren’t really lawsuits at all, as the court and constitution use the term.Instead, they are collusive schemes in which the United States has “jumped the v.” By that I mean that the administration has cozied up to nasty characters that the previous DOJ had charged. And they may be poised to do it on a much larger scale, including the worst January 6 offenders whose convictions they recently wiped away.

A paradigm case is the recent “settlement” with Michael Flynn. Flynn pleaded guilty twice, Merrick Garland’s DOJ won the motion to dismiss his civil suit, and Blanche’s DOJ then turned around and paid him $1.25 million anyway—unabashedly calling it a remedy for “historic injustice.” The government had already won. It paid anyway. That’s the scheme in miniature: jump the v, shake hands across the caption, and invite your pal to help himself to federal tax dollars.

The New York Times report suggests the DOJ is scrambling to settle Trump’s lawsuit against the IRS before its brief is due in Judge Williams’s court. The report raises the prospect of a relatively lowball settlement, for example, a promise to Trump that the IRS won’t audit him or his businesses going forward, and perhaps a little cash. (Note, however, that in Trump’s case, that would be worth quite a lot; a 2024 Times report found that a pending audit loss could cost Trump more than $100 million.)

Don’t let the supposed modesty of the settlement distract you. The real point of the deal is to get Todd Blanche and the DOJ out of the tight corner Williams has put them in. The low amount is to make it look palatable. It isn’t, but for different reasons.

Yes, Trump filed a $10 billion lawsuit against the IRS in January—a grandiose number premised on a real underlying wrong: Charles Littlejohn, a former IRS contractor, stole Trump’s tax returns and delivered them to The New York Times and ProPublica. Littlejohn pleaded guilty and went to prison for five years.

So unlike, for example, the Flynn lawsuit, the problem here wasn’t that the whole suit was bogus. The privacy violation was genuine. The problem, though, is that Trump was suing the government he presides over and controls with an iron fist.

For that reason, the case—filed by Trump against an agency he controls, defended by a DOJ that exists to do his bidding—is not a bona fide lawsuit in the constitutional sense. The Constitution requires a genuine case or controversy with parties on opposite sides. Here, the two parties are rowing in precisely the same direction and under Trump’s command.That’s the point that gave Judge Williams pause, and led her to order briefing on, among other questions, “whether a case and controversy exists in this matter.” Moreover, she appointed a gold-plated set of legal talent to present the other side that neither Trump nor the DOJ could be counted on to do.

That put Blanche and the DOJ firmly between a rock and a hard place. Blanche cannot credibly claim the DOJ stands in genuine opposition to Trump: his entire tenure as Acting AG has been a demonstration of the opposite. But he also cannot concede the court lacks jurisdiction, because that unravels not just this case but the Flynn settlement and every other collusive arrangement the administration has quietly stitched together (including, according to a letter Democratic Rep. Jamie Raskin of Maryland sent Blanche on Tuesday, many awards to Trump-friendly FBI agents without even going through the farce of a lawsuit.) Either answer is ruinous.

Blanche has apparently hit on a third option: turn tail and run.

The Times piece reports that the DOJ is holding internal discussions about settling the case “in the coming days,” citing three people familiar with the deliberations.

This is for a case in which the government has yet to enter an appearance or answer Trump’s complaint, and in which it previously asked for 90 days to do so. The “coming days” is the obvious reveal that it’s Judge Williams’s May 20 deadline that is driving the department’s deliberations. The deliberations have nothing to do with the merits or strategy of the case, and everything to do with avoiding the patent embarrassment of having to respond to the court.

The real prize here is escape. Escape from Judge Williams’s courtroom, from the amici she appointed, and from the likely determination that the lawsuit never presented a genuine case or controversy under Article III at all. Rather, from the jump, the case was a sham, as was the Flynn settlement and other contrived rewards to Trump’s friends.

There’s a certain irony here. The point of the lawsuit was to treat the federal court as a spot to launder a collusive deal and gain a judicial imprimatur. Now that a judge is actually doing her job, actually probing whether the whole enterprise is constitutionally void, they want to withdraw.

Williams’s hands are largely tied if the parties simply settle or withdraw before she rules. There would be nothing left on her docket to oversee. Even so, she can call it out for what it is, and receive the briefs the amici are preparing. That spotlight matters greatly in itself. And now that she’s called attention to the government’s corrupt and unconstitutional maneuvers, other judges will have occasion to pick it up in other cases.

So keep your eyes on the calendar. If a settlement materializes before May 21st—before the amici file, before Williams gets her answer—you’ll know exactly what it means. It means the DOJ assessed its options and opted to run for cover, hoping nobody notices. It means they are scared of their own shadow, and the shadow of the Constitution.

Reprinted with permission from Talking Feds.

ABC v. Carr: The Media Empire Strikes Back At Trump's Bullying

The last time ABC played a role in the Trump 2.0 wars, it was to capitulate meekly to a dubious Trump lawsuit, one of many such acts of appeasement by the media in the early days of Trump 2.0.

But last week, ABC rejoined the battle and served notice that it’s ready for a prolonged, aggressive and direct fight against the crass bullying of the FCC under Trump acolyte Brendan Carr.

On Friday, ABC filed a 52-page petition with the FCC that is the most aggressive legal counterattack any network has launched against the Trump administration to date. The most noteworthy line in the petition may be the last one: a signature by Paul Clement, former Solicitor General under George W. Bush and the most formidable Supreme Court litigator in private practice, particularly for attracting the attention of the conservative members of the courts of appeals and the Supreme Court.

You don’t hire Paul Clement for a regulatory skirmish. You hire him when you’ve decided to gird for the long battle, and you want the other side, and the courts, to know it.

What makes ABC’s stance particularly noteworthy is its previous record of caving to legally weak demands. The network paid Trump $15 million to make a losing lawsuit go away, and it suspended Jimmy Kimmel’s show when Carr came calling. This conduct helped set the early template for media capitulation in Trump’s second term.

Trump’s defamation lawsuit grew out of an on-air statement in March 2024 by George Stephanopoulos that Trump had been found liable for rape in the E. Jean Carroll civil case. That was imprecise, which is a far cry from actionable under the First Amendment. The jury had found Trump liable for sexual abuse; the trial judge noted the distinction with rape was largely technical, and the jury, in effect, had found rape as the word is used in common parlance.

ABC initially signaled it would fight. Then, in December 2024, one day after a judge ordered both Trump and Stephanopoulos to sit for depositions, Disney, ABC’s parent company, folded. ABC paid $15 million to Trump’s presidential foundation, put in an additional million for Trump’s legal fees, and published an editor’s note declaring that ABC News and Stephanopoulos “regret statements” about the president-elect.

The legal community was unsparing. The strong consensus among defamation lawyers was that ABC’s odds of liability were minuscule. The problem that made the settlement rational, if craven and short-sighted, was that everyone understood that Trump would bring unrelated tools to bear against media companies that displeased him.

The demands, meanwhile, have kept coming regardless. Two weeks ago, the administration ordered early license renewal reviews for all eight of ABC’s owned stations, years ahead of schedule, triggered by another Kimmel joke that annoyed the president.

FCC Commissioner Anna Gomez, the lone Democrat on the three-person panel, called out her colleagues: “The targeting of a group of stations to punish a parent company has never happened in history. The irony is not lost on anyone. A joke made about an event meant to honor the First Amendment is now being used as a justification to curtail it.”

ABC has apparently concluded that appeasement of a tyrant doesn’t work; it only brings additional demands on its heels. It’s that calculation—and Carr’s latest provocation—to which the Clement filing responds.

To appreciate the full significance and stakes of ABC’s pushback, it’s important to understand what Brendan Carr has built at the FCC.

Carr was a co-author of Project 2025’s communications chapter. Since Trump appointed him to the chairmanship in January 2025, he has set about converting an ostensibly independent regulatory agency into an instrument of presidential media policy.

Within his first weeks, Carr revived complaints against ABC, NBC, and CBS that his predecessor Jessica Rosenworcel had just dismissed. Rosenworcel had warned that the complaints sought to “weaponize the licensing authority of the FCC” in a way “fundamentally at odds with the First Amendment” and that the agency “should not be the president’s speech police.”

Undeterred, Carr launched a DEI investigation into Disney. He threatened Comcast’s broadcast licenses over NBC News coverage of the Kilmar Abrego Garcia deportation story. He investigated CBS’s 60 Minutes over the editing of a Kamala Harris interview—after Trump had already sued CBS personally, and while Paramount, CBS’s parent company, needed FCC approval for a merger. Paramount settled Trump’s lawsuit for $16 million and got its merger approved. He reposted Trump’s demand that NBC fire Seth Meyers. He threatened ABC over a Kimmel joke, got the show suspended, and backed off only when public protest made the pressure untenable.

Kim Zarkin, who has written the history of the FCC, told The Hollywood Reporter that Carr’s approach was “jaw-droppingly different” from normal FCC practice.

What unites every target is not a regulatory violation. It is viewpoint. NBC, ABC, CBS, PBS, NPR, the BBC—their common sin has been coverage not fawning enough over Trump.

Carr himself declared that the FCC is “not formally an independent agency,” after which all references to “independence” were quietly scrubbed from FCC.gov.

So ABC is not quibbling over regulatory technicalities. It is challenging the constitutionality of a large part of Carr’s portfolio and, at the same time, taking on government censorship of disfavored viewpoints.

On its surface, Friday’s filing is small relative to its ambitions.

The immediate focus is a single ABC-owned station in Houston, KTRK-TV, and its interview of James Talarico, then a Democratic Senate primary candidate in Texas (who has since won the primary).

The Communications Act requires broadcast stations to give equal airtime to all candidates for a given office; so an interview with one candidate generally triggers the opposing candidate to demand equal time. The Supreme Court upheld the general regime in Red Lion Broadcasting v. FCC in 1969. It held that scarcity of broadcast spectrum justified government oversight in order to protect the rights of viewers.

But the equal airtime provision is subject to several major exemptions. Most important for current purposes, Congress in 1959 carved out an exemption for “genuine news programming.” Shows that provide such programming are not required to give equal time to all candidates. A contrary regime would make it impossible to deliver the news and would put the FCC in charge of editorial decisions.

The test for programs that provide “genuine news programming” has multiple factors, but the gist is that the station has independent editorial control and is not just providing an open forum for one candidate to sound off.

The View, which presents a mix of political and pop culture news, is a down-the-middle example of genuine news programming. It has always enjoyed an exemption for genuine news programming. The show received a formal declaratory ruling confirming its exempt status in 2002, never challenged in the 24 years since.

That is, until Carr announced in January that the longstanding exemption for so-called bona fide news interview programs—the provision that has protected shows like The View for decades—would be applied far more narrowly going forward.

And narrowly, it turns out, means selectively: the new interpretation, he said, simply does not apply “on the radio side”—meaning it does not apply to the Mark Levin Show, the Glenn Beck Program, or the Guy Benson Show, conservative talk radio hosts who booked Texas candidates in the same relevant period, with no paperwork filed and no FCC inquiry forthcoming.

Carr’s Media Bureau sent KTRK escalating letters culminating in something the FCC has never done before: an order directing a licensee to file a new petition re-establishing an exemption it already held. ABC’s filing calls it “unprecedented, beyond the Commission’s authority, and counterproductive to the Commission’s stated goal of encouraging free speech.”

Clement’s brief, which certainly had to have been okayed by Disney, makes plain that nothing whatsoever has changed since the FCC previously recognized The View’s eligibility for the exemption. The program has aired in the same weekday timeslot since 1997. ABC’s executive producer controls every content and booking decision. The Talarico appearance was newsworthy: his campaign was gaining national traction, and the show had just hosted his primary opponent. On the merits of eligibility for the equal time exemption, it isn’t close.

But rather than holding fast on that narrow ground, as most regulatory lawyers would have done, the brief attacks on a much wider front. It opens with a frontal First Amendment assault on the entire statutory regime—a sharp challenge to the equal time rule that underpins Carr’s bullying.

The brief argues that Red Lion is defunct, the scarcity rationale is gone, and the equal time rule cannot survive First Amendment scrutiny in the modern media environment—an invitation to the Supreme Court to bury a fifty-year-old precedent.

It then fires a second arrow at Carr personally: even if the equal time rule is constitutional on its face, it cannot be applied to The View consistent with the First Amendment, because this proceeding is transparently driven by disapproval of the show’s viewpoint, among the most categorically forbidden actions by the government.

The factual record of viewpoint discrimination is quite strong. Carr publicly declared, before his own investigation concluded, that The View faced an “uphill climb.” The White House called the hosts “Trump-deranged wackos.” ABC’s filing lays the asymmetric enforcement record alongside those statements. The Mark Levin Show interviewed Dan Patrick on February 16, on a station Patrick himself owns. The Glenn Beck Program interviewed Chip Roy on February 18. The Guy Benson Show interviewed Roy on February 11.

In other words, conservative-leaning shows have all interviewed conservative candidates without a peep from the FCC suggesting they needed to give equal time to progressives.

The chilling effect is already real. CBS lawyers reportedly advised Stephen Colbert against booking Talarico at all. California’s upcoming gubernatorial jungle primary has more than 60 legally qualified candidates—under Carr’s interpretation, booking one means offering time to all of them, which means booking none. Less political speech on the eve of a midterm election, not more.

The equal time rule is the legal foundation for virtually all of Carr’s campaign against broadcast news. If Red Lion falls and the equal time rule is held unconstitutional as applied to news and public affairs programming, Carr retains jurisdiction over technical broadcast matters, but his ability to weaponize regulatory threats against news content is largely gone. ABC is not just fighting to protect The View. It is trying to disarm the enforcer.

The overall message to the FCC is: careful what you wish for. If you push this equal-time argument, you may wind up losing the regulatory tool altogether.

The petition sits with Carr’s Media Bureau, and from there will go to the full Commission, where Carr holds a 2-1 majority. Absent a strategic jiu-jitsu move by the Commission to cut its losses before the courts weigh in, ABC will lose at every agency level.

But that’s when the tide should turn. The review path after the full Commission is to the U.S. Court of Appeals for the D.C. Circuit, which has exclusive jurisdiction over final FCC orders. A favorable ruling there on viewpoint discrimination alone—without even reaching Red Lion—would be a severe blow to Carr’s entire operation. It also would clip his wings with respect to other broadcasters whose coverage displeases the president.

Then there is the prospect of the Supreme Court’s accepting review to hear a top-notch argument from Clement that the Court should revisit Red Lion. Several justices, including Justice Thomas, have previously signaled they would welcome the chance

Not everyone at the FCC is rooting against ABC. Gomez, responding directly to Friday’s filing, said Disney had chosen “courage over capitulation”—and that what the public will remember is “who complied in advance and who fought back.”

ABC has found its spine. It took a while, and it cost $15 million to figure out that paying tribute only invites more tribute. The previous skulkers are now the cavalry. It’s in all of our interest that they rout the enemy.

Reprinted with permission from Talking Feds.

Why Trump's 'Seashellgate' Prosecution Of James Comey Is Dead On Arrival

When the first James Comey indictment dropped last September, I called it the single most shameful act in the Department of Justice’s history. My singular outrage led me to devote five consecutive Substacks that week to cataloguing the wreckage: the legal infirmities, the procedural malpractice, and the naked political origins.

That case duly crashed and burned, dismissed as a legal nullity after a series of courtroom debacles that would have been farcical if the stakes hadn’t been so grave. Rather than accept the rebuke, the DOJ has doubled down with a bespoke indictment, custom-built for one defendant and one audience.

Even as that failed indictment remains technically on appeal, the DOJ now has brought a second indictment of the former FBI director in a different district on an entirely different theory. The charge, if anything, is even more bankrupt and tawdry than the first.

Of course, the filing does not come as the same sort of surprise this time. In his less than 4 weeks as Acting Attorney General, Todd Blanche has quickly reached new lows of lawlessness and shameless servility to the president. It was entirely predictable that he was out front at the press conference preening about the latest charges against one of Trump’s most avowed enemies.

But the charge, if less stunning, is no less appalling. And the press conference included a series of lies and half-truths that not long ago would have been stunning to hear from the lips of the nation’s highest federal law enforcement officer.

Contrary to the multiple whoppers Blanche told at his press conference Tuesday afternoon, this is decidedly not a normal case nor one the Justice Department would bring against any other defendant. Moreover, like last week’s indictment of the Southern Poverty Law Center, it offers literally no evidence of the core alleged conduct, and the theory embedded in the charging document actually contradicts what Trump and his circle of sycophants have been publicly claiming for nearly a year.

The facts are almost too silly to state with a straight face, but here they are. Last May, James Comey was on vacation on the North Carolina coast. He came upon—did not arrange, did not commission, did not construct—a collection of seashells that someone else had assembled on the beach in the pattern “86 47.” He photographed it and posted it on Instagram with the caption, “Cool shell formation on my beach walk.”

That’s the case, the entire godforsaken case.

On that filament, the Department has tried to balance a federal indictment for threatening the life of the President of the United States.

Comey responded to the indictment Tuesday with calm resolve: “I’m still innocent. I’m still not afraid. And I still believe in the independent federal judiciary. So let’s go.”

The charging statutes are 18 U.S.C. § 871(a), which prohibits knowingly and willfully threatening the life of or bodily harm to the president, and § 875(c), which prohibits transmitting such a threat via interstate commerce.

Both are real statutes that real prosecutors charge in real cases. Actual examples include the defendant who mailed President Reagan a series of letters specifying the exact date, time, and place he planned to kill him. Or the security guard who told a coworker he was going to Washington to kill President Nixon, and repeated it days later with a Secret Service agent listening from the trunk of his patrol car.

As these examples illustrate, § 871 carries a high intent requirement. To gain a conviction, the DOJ will have to prove that Comey “knowingly and willfully” transmitted a threat to kill or harm Trump.

Compare those to the wan facts in the Comey indictment. Most glaringly, the Department has not proffered a shred of evidence to suggest that in posting the found seashell pattern to his Instagram account, Comey was knowingly threatening the president.

To the contrary, the record points entirely the other way. Within hours of the post, Comey sat voluntarily with Secret Service agents and told them flatly that he had no idea the image would be read as a threat; that he understood “86 47” as a political sentiment, not a call to violence; and that he opposed violence of any kind. He deleted the post the same day.

Knowing all this for nearly a year, the government, or really Blanche, decided now to bring the charge that surely delighted Trump. But it included no evidence of the core element in the statute, namely, Comey’s intent.

Pressed on the point Tuesday, Blanche prevaricated. A reporter asked Blanche directly, how do you prove intent when Comey said he associated the numbers with politics, not violence, and took the post down immediately, Blanche had nothing to offer. He fumfered a generic, “Witnesses, documents, the defendant himself.” In other words, "beats me."

And in fact, there is no answer. I wrote about the SPLC indictment that the absence of any fraudulent statement is a hole you can drive a truck through; the same is true here of the absence of any proof of intent to threaten.

The paucity of proof of intent also puts the lie to both Blanche’s and Kash Patel’s assurances that this indictment is the fruit of a painstaking, eleven-month federal investigation marshaling the full resources of the FBI. Nonsense. Every fact necessary to evaluate this case was on the table within forty-eight hours of Comey’s post: the photograph, the caption, the deletion, and Comey’s on-the-record disavowal to federal agents. The three-page indictment adds nothing. The eleven months were not spent developing evidence. They were spent waiting for the right moment and the right acting attorney general.

No less than the first indictment, this filing is destined to go nowhere.

A brick wall stands only a few feet from the indictment in the form of the leading Supreme Court case interpreting § 871. Watts v. United States arose from the Vietnam War era. A man at a political rally declared, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” The Supreme Court reversed Watts’s conviction under § 871. The Court held that Watts’s statement was political hyperbole protected by the First Amendment.

Watts presents an insurmountable barrier to the Comey charge. The government knows that full well. It knows, therefore, that it should never have brought the case, which requires (or did before the Trump DOJ shredded the Principles of Federal Prosecution) a determination that a conviction beyond a reasonable doubt is probable.

If “the first man I want in my sights is LBJ” spoken aloud at a rally does not constitute a true threat, a photograph of seashells on a public beach—arranged by a stranger, captioned as a curiosity, posted and deleted within hours, and absent any additional proof of intent—is D.O.A. The courts will never countenance it, even if the Department is banking on a sympathetic jury in the Eastern District of North Carolina.

It’s one of the more heartening signs of a broader pushback against authoritarianism that Trump’s reprisal prosecutions have consistently run aground. In this crucial area, the rule of law has, so far, withstood the rule of one. I expect it will here as well. But that has to turn on the continued vigilance of courts and all of us, even when confronting ridiculous conduct from DOJ that should, and in better times would, collapse of its own weight.

To close with the words of the unjustly charged defendant who today appeared in court and was briefly placed under arrest, “It’s really important that all of us remember this is not who we are as a country…Keep the Faith.”

Reprinted with permission from Talking Feds.

Worse Than The Old Boss: Todd Blanche Drives Justice To A New Low

When Pam Bondi was sacked earlier this month, amid reports that her firing offense was, of all things, insufficient zeal in securing convictions of Trump’s enemies, the logical question was: just what more could she have done? Bondi had seemingly pulled out every possible stop to deliver the scalps to the King, foiled only by the checks that exist outside DOJ’s walls, especially grand juries that refused to indict the innocent targets she had placed before them.

At the time, the question seemed rhetorical. It wasn’t. In Todd Blanche’s three weeks as Acting AG, he has taken screws that seemed fully turned and tightened them another notch. His initial moves suggest that, hard as it is to conceive, he will be even more vicious, more slavish toward Trump, and more willing to jettison the public interest and the rule of law than was his consummately servile predecessor.

Meet the new boss. Worse than the old boss.

In 14 months, the shortest confirmed tenure of any Attorney General in 60 years, Bondi managed to eviscerate the mission and good faith of the DOJ to the point where courts that had always assumed the best of government lawyers had begun to assume the worst. It was the antithesis of justice without fear or favor, the Justice Department’s historic watchword: instead, Bondi’s DOJ delivered favor to Trump’s allies and tortured his enemies.

Yet in barely three weeks on the fifth floor, Blanche has done Bondi one better, which is to say the country one worse. The Department, in April, has moved to whitewash the criminal records of the worst January 6 offenders; fired career prosecutors for working righteous cases now in political disfavor; deployed loyalist assistants to intimidate the Federal Reserve in a manner both nakedly political and downright bizarre; and routed a reprisal perjury prosecution to a division with no conceivable jurisdiction over it.

Start with the most historically consequential. On Tuesday, the Department filed a bare-bones motion in the D.C. Circuit seeking to vacate the seditious conspiracy convictions of the worst January 6 offenders: eight Oath Keepers, including founder Stewart Rhodes, and four Proud Boys, including Joseph Biggs and Ethan Nordean.

These men were the architects of the worst assault on democratic self-governance in our lifetimes. Their prosecutions, for seditious conspiracy, arguably the most serious and demanding charge in the federal arsenal, were the hardest and proudest achievement of the largest criminal investigation in DOJ history.

The seditious conspirators had already received an outrageous windfall when Trump commuted their sentences on his first day back in office. Since then, he has embraced them as “hostages,” “unbelievable patriots,” and “warriors,” and called January 6 itself “a day of love.” The motion to vacate takes this grotesque revisionism to its logical conclusion.

The four-page motion offered no legal argument, no claim of innocence, no suggestion of prosecutorial error. It simply declared that dismissal “is in the interests of justice.”

Whose justice might that be?

On remand, the government will move to dismiss with prejudice, meaning no retrial is ever possible. The legal system will formally reflect that Stewart Rhodes and company committed no January 6-related crimes. At that point, these newly exonerated defendants will be positioned to sue the United States for malicious prosecution, just as Michael Flynn did, walking away with 1.25 million taxpayer dollars. A collection of pardoned January 6 defendants has already brought a class action against the Capitol police officers they overran that day, alleging excessive force. Rhodes and company can now wave their own dismissals with prejudice.

This is not, as Bondi and Trump might suppose, the triumph of one political faction over another. The whitewashing of the worst January 6 crimes is an offense against the entire country, Republicans and Democrats, MAGA and never-Trump alike. The convictions Blanche erases belonged to all of us.

The second item involves firing people for doing their jobs, and smearing them on the way out.

This week, the department fired at least four career prosecutors who had worked FACE Act cases under Merrick Garland, simultaneously releasing a 900-page “weaponization” report accusing those same prosecutors of selective enforcement. They got the knife and the smear at the same time.

The Freedom of Access to Clinic Entrances (FACE) Act was passed in 1994 with bipartisan support, its primary target the physical blockading of abortion clinics, with protections for houses of worship added to bring Republicans along.

The felony cases Garland’s prosecutors brought involved defendants who physically blockaded clinic entrances. Not people standing peacefully with signs. The cases were not close calls. In Washington, D.C., defendants forced their way into a clinic and blockaded the doors while a co-conspirator livestreamed it. In Mount Juliet, Tennessee, a coordinated group physically blocked a patient from receiving care while two ringleaders ran a deliberate deception operation to delay police. That is the conduct Blanche has now declared a firing offense to prosecute.

What makes this doubly perverse is the asymmetry Blanche has enshrined as policy: FACE Act cases involving houses of worship get the Justice Department’s full attention, as with the tenuous prosecution of Don Lemon for covering a protest in a St. Paul church; cases involving abortion clinics are now restricted to “extraordinary circumstances.” Same conduct, same statute, different outcomes depending on the political valence of the victim.

Then there is Tuesday’s drop-in visit to the Federal Reserve by two prosecutors in Jeanne Pirro’s office and an investigator.

Chief Judge James Boasberg had already quashed Pirro’s subpoenas targeting the Fed in March, finding that the government had produced “essentially zero evidence to suspect Chair Powell of a crime” and that the investigation was transparently designed to pressure Powell on interest rates. So Pirro dispatched two prosecutors, Steven Vandervelden and Carlton Davis, to show up unannounced at the Fed’s Washington headquarters and request a tour of the renovation project Trump has cast as the source of Powell’s supposed criminal exposure.

It is hard to overstate how anomalous this is. Prosecutors don’t make unannounced visits to subjects of an investigation and ask for a tour. Beyond that, the Fed is represented by counsel, Robert Hur, the former United States Attorney who investigated Biden’s handling of classified documents and found no basis for charges. Contacting a represented party without counsel present is a blatant ethical violation. Hur responded with a tart letter advising Pirro’s office that if it wished to challenge Boasberg’s ruling, the courts provided an avenue. That avenue is called an appeal. Pirro has yet to file one.

A word about Vandervelden and Davis. They are also the same Pirro soldiers who previously tried to indict six sitting Democratic members of Congress for taping a video urging military personnel they need not comply with illegal orders. Vandervelden has no prior federal prosecutorial experience; Davis previously served as a congressional staffer and has a single brief stint as an AUSA to his name.

The result: not a single vote to indict. It’s the first total shutout in federal grand jury practice that I’ve ever even heard about. The old saw is that a grand jury will indict a ham sandwich. It wouldn’t bite on the very different malodorous sandwich Vandervelden and Davis were serving.

The only plausible explanation for the Fed field trip is raw intimidation, a rattling of sabers, saying we still have you in our sights. Trump confirmed as much the next morning, telling Fox Business the probe would continue and that it was “more than a criminal probe.” The President of the United States, on camera, volunteered that his prosecutors are doing something other than pursuing criminal justice.

Finally, there is Cassidy Hutchinson, the then-25-year-old former White House aide whose June 2022 testimony remains one of the most consequential public accounts of Trump’s conduct on January 6. She was a loyal Republican staffer with no political animus toward Trump. She simply told the truth under oath, at considerable personal cost, against documented pressure from her Trump-supplied attorney not to, an attorney she eventually discharged.

The prospective perjury charge centers on her relaying what she had been told by White House Deputy Chief of Staff Tony Ornato about Trump lunging for the steering wheel of the presidential vehicle. The Secret Service agent in the car disputed the account; Ornato himself later claimed not to remember telling her. Relaying in good faith what a senior White House official told you is not perjury, by any stretch. The willful and material falsehood the charge requires is nowhere in evidence.

Bondi opened the inquiry in her final weeks as a last-ditch bid to please Trump. Blanche greenlighted the next step: assigning the matter to Harmeet Dhillon’s Civil Rights Division. Dhillon is a longtime Trump personal attorney, an ardent promoter of his 2020 election fraud claims, and an official who has described her mission as not merely slowing civil rights enforcement but “turning the train around and driving in the opposite direction.”

But perjury prosecutions are not her job. Every division in the Department has its own bailiwick. I don’t know of a single instance in which the Civil Rights Division has handled a congressional perjury case. There is no institutional authority to do so. The assignment is designed for one purpose: to show Trump that the Hutchinson prosecution is in the hands of a trusted enforcer.

What distinguishes Blanche, and has earned him particular contempt among former DOJ colleagues, is that he knows better. Bondi was over her head from day one, a Fox News personality dropped into the nation’s premier law enforcement institution. Blanche is a former Assistant United States Attorney who spent years in the Southern District of New York. He knows that the career prosecutors he has fired acted with integrity and dedication to justice. He knows the value of the traditions he is feeding through a meat grinder, because he was formed by them.

Blanche served in a Justice Department where it was forbidden for the White House even to communicate with DOJ about a pending case, and he knows precisely why that rule existed and what its abandonment means. Now he takes pride in turning that rule upside down.

At his first press conference as Acting AG, asked about Trump’s explicit public demands that DOJ investigate his political opponents, Blanche said: “It is true that some of them involve men, women, and entities that the president in the past has had issues with and believes should be investigated. That is his right, and indeed it is his duty to do that, meaning to lead this country.”

Whoa. The Acting Attorney General of the United States describes it as the president’s duty, and a function of his leadership, to order prosecutions of his political enemies. It is a breathtaking characterization of Trump’s corrupt agenda, now become the Department of Justice’s mission statement.

In three weeks, Blanche has made clear there is no floor he recognizes. He is all in, past Bondi, past any limiting principle. We thought we had seen the bottom. We hadn’t.

And that gives rise to one question, also unfortunately not rhetorical: how much lower can he drive the Department of Justice?

Reprinted with permission from Talking Feds.

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