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With Slush Fund, Trump And Blanche Conjured A Metastasizing Scandal

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.

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.

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

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

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.

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.

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

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.

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.

James Comey

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.”

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.


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

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?

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.

Bondi Botch: Attorney General's Reveal Clears Jack Smith And Implicates President

Bondi Botch: Attorney General's Reveal Clears Jack Smith And Implicates President

Pam Bondi played the game by her own, illegal rules; and she still managed to completely bungle it.

Last Friday, the Department of Justice (DOJ) shipped to the House Judiciary Committee some documents about the Mar-a-Lago prosecution against Donald Trump led by Special Counsel Jack Smith. Recall that the case was more straightforward than the January 6 prosecution, and by most prosecutors’ assessment, it likely would have resulted in conviction of Trump, but for the 2024 election and the repeated pro-Trump ministrations of Judge Aileen Cannon.

Wait a second. Hasn’t the same Judge Cannon ordered documents from the case to remain sealed and barred from disclosure? And didn’t the DOJ threaten Smith it would prosecute him criminally if he revealed anything about the case in congressional testimony, while refusing to explain what the boundaries of disclosure would be?

Yes. And to be clear, Cannon’s order extends not just to Volume II of the Smith report but also to “any materials that would reveal the substance of Volume II.”

Since the report is an account for the Attorney General of the investigation, a January 13, 2023 memo to the AG laying out the state of the evidence is nothing if not a reveal of part of the substance of that report.

But as part of its campaign to rewrite the history of Trump’s crimes—and in the process discredit Jack Smith, whom Trump continues to smear as “a deranged lunatic” and “political hack”—DOJ made selective disclosures to the House Judiciary Committee of documents, including that January 13 memo. Somebody at 950 Pennsylvania Avenue concluded it would dirty Smith up. That may illustrate the paucity of documents reflecting poorly on the prosecution, which professional prosecutors on both sides of the aisle averred was basically open and shut.

In fact, the memo is replete with demonstrations of Trump’s guilt and Smith’s probity.

Congressman Jamie Raskin, the ranking Democrat on the House Judiciary Committee, seized immediately on the embarrassing revelations. He sent a letter to Bondi on March 24, accusing her of being so consumed by the “frenzied search to find any scrap of evidence” to discredit Smith that she had “quite amazingly, missed the fact that some of the documents you provided include damning evidence about your boss’s conduct and may well violate the gag order your DOJ and Donald Trump demanded from Judge Aileen Cannon.”

Raskin proceeded to call out Bondi’s selective application of the very Cannon order DOJ had argued for. “DOJ appears to view the judicial order as rules for thee—Jack Smith—but not for me,” Raskin wrote. The prosecutors’ own files, he noted, were so damning that even DOJ’s carefully curated production could not fully excise the evidence of what Trump had done.

Here’s what the memo actually revealed about the investigation of Trump for improperly taking sensitive documents from the White House at the end of his presidency and obstructing justice to keep from having to give them back.

  1. One of the documents Trump purloined was so sensitive only six people in the entire federal government could see it. Having spent years as a federal prosecutor and U.S. Attorney, I’ve handled a lot of classified material, and I have never even seen such a close-hold document. The government does not restrict access to six people unless you are dealing with something that can do grave harm to national security. This is the kind of designation reserved for information that, in the wrong hands, could get people killed or destroy critical intelligence operations. That Trump cavalierly included it in his haul was breathtaking.
  2. Trump showed a classified map to friends on his plane. In June 2022, on a flight from Palm Beach to Bedminster, prosecutors identified a classified map chief of staff. No security clearance. No remote basis in law—just, look what I have, isn’t it fun? When Republicans accused Hillary Clinton of accidentally mishandling classified material on a private server, they did cartwheels demanding prosecution. Trump knowingly waved a classified map around a private plane full of political operatives. Same people: not a word.Contrast Trump’s big-shot boastfulness with the potential consequences of his illegal conduct. As Raskin tells Bondi, if the map “is related to our military posture in the Middle East, and it was in fact shown to any foreign official, Saudi or otherwise, that would amount to an unforgivable betrayal of our men and women in uniform who are currently valiantly fighting in President Trump’s disastrous war against Iran.”
  3. The investigation was zeroing in on Trump’s reasons for absconding with national defense information for the most base, and characteristically Trumpian, reason: self-enrichment. The memo makes clear that at this point in the investigation, prosecutors had identified outstanding documents tending to show that Trump selected what he purloined in part because they “would be pertinent to certain business interests.” The prosecution team added, “We must have those documents.”Prosecutors generally don’t have to prove motive, but where they can, it sharpens everything—for the jury, for the public, for history. Watergate became Watergate once we learned that the “third-rate burglary” was undertaken in the service of Nixon’s 1972 reelection campaign.When they wrote the January 2023 memo, prosecutors knew only that the documents Trump retained “would be pertinent to certain business interests”—suggestive, but unnamed.With three years of hindsight, Raskin closes the loop. We now know what “certain business interests” means: LIV Golf, Dar al Arkan, and the $2 billion that flowed from the Saudi sovereign wealth fund into Jared Kushner’s firm within months of Trump leaving office. A month after Trump showed a classified map to passengers on his plane, he was on the golf course with Yasir al-Rumayyan, head of that same Saudi sovereign wealth fund. And Trump had separately brandished to a staffer at Bedminster what he acknowledged was a classified Pentagon plan of attack against Iran—a country whose regional rival was at that very moment positioning itself to pour billions into his family’s business ventures.Raskin’s assessment to Bondi is more than fair; it is urgent: “This glimpse into the trove of evidence behind the cover-up reveals a President of the United States who may have sold out our national security to enrich himself.”
  4. The memo establishes that the classified documents Trump purloined sat commingled with other documents he created after leaving office—a fundamental violation of the protocols governing the handling of national defense information. A 23-year-old Trump aide, now director of Oval Office operations, scanned the contents of one classified box onto her laptop, uploaded the scan to the cloud, and held it for nearly two years before a Trump lawyer retrieved it and flew commercially with a thumb drive containing the material. DOJ redacted what happened next. Nobody knows whether those documents fell into the wrong hands.

And remember, this is the document DOJ thought would damage Smith!

Raskin closes his letter with eight specific questions he asked Bondi to answer by March 31, such as what the classified map depicted and what document Trump stole that was so sensitive only six people in the federal government could see it. He added a demand that “DOJ must cease cherry-picking investigative material and produce all remaining investigative files.”

The response from DOJ and the White House was sadly unsurprising. DOJ took to social media to accuse Raskin of being “blinded by hatred of President Trump,” pronounced the department “the most transparent in history,” and dismissed the letter as “a cheap political stunt, almost as if taking cues from members of the corrupt Jack Smith prosecution team.” The White House called Raskin a Democrat “with zero credibility” who was “clinging to deranged Jack Smith and his lies.”

Notice what’s missing: any denial of the underlying facts. Not a word disputing that the six-person document exists, that Trump showed a classified map on a plane, that the documents pertained to business interests, or that a 23-year-old aide uploaded classified material to the cloud. Bondi and the administration have made name-calling their standard substitution for responses on the merits; it’s the move they reach for every time the facts close in.

Step back and take in the full picture. The Department of Justice has spent the better part of a year threatening Smith with criminal prosecution if he so much as breathed a word derived from Volume II of his report on the Mar-a-Lago documents case. But now DOJ has served up to the House Judiciary Committee hand-picked selections plainly designed to discredit Smith and the prosecution—except it did exactly the opposite. How damning and inculpatory must the rest of the file be?

It is scandalous that Volume II of Smith’s report continues to be hidden from public view, thanks to a lawless decision by Judge Aileen Cannon and the DOJ’s own Trump-serving actions. The question now is whether Bondi responds to Raskin’s letter by March 31, or whether, as her past conduct would indicate, she tries to squirm and stonewall.

We already know the broad strokes of the crimes, and make no mistake, they were crimes. The president knowingly absconded with some of the most sensitive national security secrets in the government’s possession; he stored them pell-mell in a Mar-a-Lago bathroom and ballroom, showing them to political operatives and quite possibly to foreign interests; and he systematically obstructed every lawful effort to recover, including defying a search warrant.

It’s clear that powerful actors, including Cannon, Bondi, and Trump, will pull whatever levers they can, legal or otherwise, to keep Smith’s report buried. Still, as I’ve said before, I think that it’s likely that one way or another, one day or another, the truth will out. If nothing else, copies of the illuminating report will continue to exist after Trump’s reign of terror ends and a responsible government comes into power understanding the paramount public importance of the report.

Until that happens, it falls to us to keep the drumbeat going. What Bondi, Trump, and their allies are counting on is exhaustion and apathy. The flood of outrages, the relentless pace of scandal, the sheer volume of it—they are banking on the public’s losing the thread. Don’t let them. The record of Smith’s investigation into the most serious crimes by a sitting president in our history belongs to the people. That’s not a political position. It’s the price and privilege of self-governance.

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.

Bondi's Department Of Obstruction Aims To Protect Killers Of Pretti And Good

Bondi's Department Of Obstruction Aims To Protect Killers Of Pretti And Good

For many weeks, we’ve been waiting for charges to emerge from Minnesota in the killings of Renee Good and Alex Pretti by masked federal agents during Operation Metro Surge. The investigation has gone conspicuously quiet.

Now we know why.

Minnesota prosecutors filed a lawsuit Tuesday in D.C. federal court that lays out what’s been happening behind the scenes. The federal government has forced Minnesota to run the gauntlet just to obtain basic evidence to move forward: Good’s car, still shrink-wrapped and unexamined in an FBI storage facility in Brooklyn Center; shell casings; forensic evidence; and multiple statements in the wake of the shooting by federal officers.

It turns out that the feds not only have failed to cooperate with the state but have gone to great effort to stonewall the state’s requests, and they continue to do so.

Minnesota has jumped through every procedural hoop the federal government has demanded. Even so, the official answer, delivered through a combination of bad-faith denials and contemptuous silence, has been: too bad.

In both the Good and Pretti killings, federal officials on the scene agreed to cooperate, then the call came from D.C. Trump called Minnesota officials “crooked.” Noem declared the state “doesn’t have any jurisdiction.” The Minnesota Bureau of Criminal Apprehension (BCA) was excluded from interviews, turned away from crime scenes, and denied even the names of the masked officers who fired. In the Pretti matter, federal agents physically blocked state investigators holding a valid judicial warrant.

The lawsuit also seeks evidence from a third non-fatal shooting of Julio Cesar Sosa-Celis. Federal authorities quickly charged Sosa-Celis with attacking the agent who shot him. DOJ then voluntarily dismissed the case in February, citing newly discovered evidence ‘materially inconsistent’ with the complaint. The reporting was blunter: the federal agents had lied under oath.

In excessive force cases, the two sovereigns have always worked in tandem: federal civil rights investigators and state homicide prosecutors pursuing parallel tracks, sharing evidence, coordinating on witnesses. Sometimes the feds go first, sometimes they hang back. Sometimes one sovereign concludes there’s no case under its law, and the other proceeds alone. But they cooperate. The evidence flows.

That is the basic operating assumption of American federalism when a law enforcement officer kills someone on a public street under circumstances that suggest they were not in reasonable fear of deadly force from the victim. That was the model here, at least initially, until Bondi, Blanche, and company put the kibosh on.

Longtime veterans of DOJ’s Civil Rights Division have told me that this is the first time they have ever seen DOJ try to block state prosecutors. DOJ has tried to block state prosecutors from proceeding with a civil rights investigation. From my experience in the field, I can second that.

Normally, a fatal shooting like Good’s would trigger an immediate investigation by the division’s Criminal Section. Instead, the administration actively blocked it, leading to the resignations of the four top DOJ officials in the section. The Department did announce, tepidly, an investigation of the Pretti shooting, but there’s no indication it’s being vigorously pursued; moreover, it’s a convenient fact the government can cite to resist sharing evidence of the incident.

Minnesota’s complaint documents over a month in which the state jumped through federal hoops to request evidence in the feds’ possession. They filed so-called “Touhy“ requests, the regulatory mechanism for seeking evidence from federal agencies. The state first directed the request to DHS, which had possession of the evidence. DHS said, “not our department; try DOJ.” Minnesota did, starting in early February. To date, DOJ has said…nothing at all.

I previously have explained that if and when Minnesota files charges in the killing, the federal government and the defendants can assert claims of supremacy clause immunity. Those arguments will turn on whether the agents reasonably believed the victims posed an immediate threat of deadly harm. So there plainly will be an opportunity for the Department to press the point if it believes the officers acted reasonably, though the arguments seem to cut violently against the evidence. But that’s not enough for the Department. It wants to scuttle any effort to bring the case to the justice system.

When the federal government denies a Touhy claim, the recourse is a challenge under the Administrative Procedure Act. Minnesota’s first two claims arise under that statute. The first lays out the long history of cooperation between the two sovereigns, and alleges that the failure to provide access to the evidence is arbitrary and capricious. The second is a similar challenge to the DOJ’s continuing non-response, and the attendant delay that frustrates the public’s interest in the prosecution of notorious shootings and threatens the degradation of evidence.

Notably, Touhy regulations don’t create any right to withhold. They govern procedure, such as where to direct a request and which official decides. The underlying statute is a housekeeping measure, not a privilege. Federal agencies still need an independent legal basis to say no.

Minnesota purposefully chose to bring the case in the district court in Washington, D.C., which provides an important advantage relative to other venues. In most circuits, a Touhy denial gets deferential review to the feds, and even if you win, it’s usually just a remand that lets the agency restate its denial more artfully. But D.C. takes a different, minority approach, which is less deferential to the agency decision.

The case has been assigned to Judge Emmett Sullivan, an exacting and no-nonsense judge with a strong independent streak. Sullivan is not reflexively anti-government, but he will not shy away from putting the Department through its paces to back up its factual assertions and legal claims.

It’s the third claim in the complaint that gets closest to the heart of what this case is really about.

The claim is brought directly under the 10th Amendment to the Constitution, which effectuates the full sovereignty of the states in our federalist system. In essence, Minnesota is arguing, with good reason, that the DOJ is giving it the Rodney Dangerfield treatment, trying to foil the state’s critical sovereign responsibility to investigate and prosecute a serious crime within its borders.

But while the 10th Amendment incorporates the right principle here, it has no real berth in the Supreme Court’s decisions. The Court has made clear that the 10th Amendment precludes federal demands on states to do even small tasks; but the Court hasn’t used the amendment to force the federal government to take action at the behest of the states, such as providing access to evidence. This case may force courts to take up the issue.

Importantly, even if the lawsuit falls short, it doesn’t spell the end of the prosecutions. The Pretti and Good killings are a powerful illustration of how excessive force cases have changed completely in the smartphone era, where nearly everyone on the scene has a good video camera.

I worked on the Rodney King case, where the federal prosecutors had to make do with one grainy video. Here, there not only are dozens of excellent videos, but they can be assembled to cover all angles and moments, such as the fatal shot Jonathan Ross fired at Renee Good through the driver’s window. That evidence, plus eyewitness testimony, can go a long way toward compensating for the absence of, for example, the car. And if the defense tries to make a big deal out of the absence of the evidence the feds have withheld, a court should instruct the jury that it’s the feds’ decision that kept the evidence from them.

Have another look at the harrowing videos — images that appalled a nation — and watch the federal agents gun down Good and Pretti on public streets under circumstances that put the lie to the feds’ reflexive claim that the victims were deadly threats. Then consider that the DOJ is pulling out all stops to prevent justice from being done, in any court. The obvious reaction to this obstruction campaign is disgust.

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.

Pardons, Sopranos Style: Indictment Of MAGA Lobbyist Exposes Systemic Rot

Pardons, Sopranos Style: Indictment Of MAGA Lobbyist Exposes Systemic Rot

A fixer is owed money. The client won’t pay. So the fixer turns to an enforcer: How far should I go? Do you want him hurt? A broken jaw? A missing finger?

The fixer’s answer: do “anything and everything” to collect.

It has the makings of a mob drama. Except it’s all true. And this isn’t North Jersey. It’s Washington, D.C. And the product isn’t illicit goods—at least not in the traditional sense.

It’s presidential pardons.

Josh Nass is a Washington lawyer who recently helped secure a presidential pardon. He now faces criminal charges for extortion.

Nass’s story illustrates a larger point. When a president turns the pardon power into a favor-trading racket, the corruption radiates outward—into the lawyers, fixers, and enforcers who operate in its shadow.

Nass is a conservative lawyer and lobbyist who circulates in MAGA circles and reportedly purchased property in Trump Tower, an immediate credential for proximity to the boss. He is one of a growing number of figures operating in the shadows of Trump’s pardon bazaar, advertising access and charging would-be recipients six- and seven-figure fees.

Figures from Rudy Giuliani to Corey Lewandowski have been drawn into this orbit. Giuliani reportedly sought as much as $2 million from a client for a potential pardon in 2020.

Nass worked the system successfully. That almost certainly means he traded not in the traditional currency of clemency—rehabilitation, remorse, equity—but in something else: proximity, flattery, politics.

But the client couldn’t pay the $500,000 contingency fee.

That happens to lawyers. When it does, they turn to the legal system—negotiate, restructure the debt, write it off, or, if all else fails, file suit.

But Nass had no interest in operating within the legal system. Instead, according to prosecutors in the Eastern District of New York, in filings seeking his pretrial detention, he hired someone he believed to be a thug enforcer to “persuade” the client to pay up, using the traditional tools of the trade: terror and violence.

That person turned out to be a confidential informant. The result was a series of recorded conversations and, now, an extortion charge. In the taped conversations, Nass and the informant discuss how far to take the intimidation.

Cut off a finger? Put a gun to his head?

Nass’s answer: do “anything and everything.”

And then, according to prosecutors, Nass offers a justification:

“You came to him as a human being… and he told you to go f*** yourself. So you can’t be a human being with him.”

It’s not hard to hear Paulie making the same argument to Tony.

The point is not simply that Nass allegedly crossed a criminal line.

It’s that someone like Nass exists at all, part of an ecosystem that has grown up around Trump’s transformation of the pardon power.

I’ve argued before that Trump’s use of clemency is among the most corrupt features of his presidency, not because of any single decision, but because the entire process has been reoriented away from law and toward personal and political advantage.

Nothing surpasses the pardons he issued on his first day in office to the January 6 marauders; they are a lasting stain on our history. But that was only the most visible example. He has since doled out a long string of pardons to flagrantly undeserving individuals for illegitimate reasons.

In some cases, the surrounding circumstances—for example, clemency for relatives of major political donors—have such a stench that they ordinarily would trigger oversight in Congress or criminal investigation. In Trump 2.0, fuggedaboutit.

The institutions that would ordinarily check the outrages have stepped back, stood down, or been sidelined. The Department of Justice sees no difference between Trump’s political maneuvers, however unsavory, and the letter of the law. Congress’s oversight is toothless. And the Supreme Court’s infamous immunity decision has removed criminal accountability from the field.

When pardons become a political commodity, a market grows around them. A December Wall Street Journal report suggests that the going rate for a Trump pardon clocks in at around $1 million.

Nass is illustrative of the seamy courtiers that pop up wherever influence is currency: lawyers and lobbyists charging enormous fees to people who would have no plausible chance at clemency in a system governed by principle.

They are not selling legal analysis or advocacy in any meaningful sense. They are selling access. And in the pardon racket Trump presides over, access is everything.

Deals like that don’t stay clean.

It’s not just that the pardon system has become transactional and unmoored from any legitimate consideration. It’s that everyone operating within it understands that, at the top, the usual legal constraints no longer apply.

If a president were trading pardons for money in an ordinary administration, that would trigger a criminal investigation. It would dominate the Justice Department. It would end presidencies.

Here, it barely registers. The reaction is muted, episodic, quickly overtaken by the next outrage. What would once have been disqualifying has become background noise under a president who makes corruption a feature rather than a bug of his administration.

And the signal from the top is unmistakable. The Supreme Court’s immunity decision does more than shield past conduct. It communicates that certain exercises of presidential power operate beyond the reach of ordinary law.

The actors in the president’s orbit respond accordingly. The boss makes the big money, and the capos exploit the system for a cut of the illicit proceeds.

Nass’s conduct isn’t an aberration. It’s the logic of the market.

When the product is illicit—whether drugs, stolen goods, or pardons—transactions don’t end in courtrooms. They end in leverage, and sometimes in violence.

The system has adapted to the premise that the president can do no wrong. Everything else follows.

The scandal is not the extortion charge.

The scandal is the system that made it entirely predictable.

No Plan: Weeks Of Bombing Iran Have Brought Not Success But Global Chaos

No Plan: Weeks Of Bombing Iran Have Brought Not Success But Global Chaos

There are, as it turns out, a few small gaps in the Trump administration’s war planning and execution.

For example: doing any advance preparation for new leadership on the ground, or even identifying forces who might step into the vacuum if the regime collapses.

Or explaining to the American people why we are there in the first place. The administration has now offered seven different answers to that question, which suggests that no one really knows—least of all the supposed leader of the free world.

Or preparing for the spike in oil prices that follows when Iran blockades—and now mines—the Strait of Hormuz, through which roughly 20 percent of the world’s oil supply moves.

Or, most importantly, explaining how this mess ends, and what success even looks like.

By the raw metrics of aerial bombardment, the United States is delivering. Pete Hegseth has promised that each day will be more intense than the last, and the strikes around Tehran and other strategic targets are confirming the boast. Israel has nearly obliterated Iran’s air capabilities.

As the bombing increases, the war expands. There are now about a dozen countries involved. The spillover has also unsettled America’s traditional partners, who now look less like allies in a shared strategy than like governments nervously calculating how close the blast radius might come.

What Iran cannot do against the United States or Israel, it now does against countries in the Persian Gulf, such as the UAE and Saudi Arabia. Even Turkey, a NATO member, now finds itself caught in the expanding vortex. Russia reportedly lends technical assistance to Iran’s drone program, one of the few military capabilities Tehran still operates effectively.

The war has broadened well beyond any semblance of the mission the administration ever offered the public.

None of that is success.

It is metastasis.

Of the shifting rationales the administration has offered, the one that seems arguably in our strategic interest would be regime change. Of course, that is a patently illegal reason to start a war, but the war’s illegality is a given, as I and many commentators have noted.

Since the ascent to power of Supreme Leader Ali Khamenei in 1989, the regime has been a powerhouse in the Middle East and a force for repression at home and instability abroad—silencing dissent, brutally crushing protests, executing opponents, restricting the rights of women and minorities, and funding militant proxy groups across the region.

But our campaign to date, as damaging as it has been to Iran, has not advanced the cause of regime change. In fact, no sustained aerial campaign in modern history has produced regime change on its own. You need boots on the ground. You need, before the bombs ever fall, a cultivated opposition, a prepared population, a political infrastructure capable of stepping into the vacuum.

This administration laid none of that groundwork—because, it appears, no one thought that far ahead.

The prospects for regime change plummeted with the selection of the son of Supreme Leader Khamenei to succeed his father, a pointed and deliberate act of defiance against President Trump, who earlier this week remarked that he wished to have a say in the next leader of Iran.

The move signals, with unmistakable clarity, that Tehran does not intend to yield.

Trump has suggested the new leader would not last long without American approval, but there’s no real basis to believe that. Indeed, intelligence reports indicate the Iranian regime remains largely intact and is not at risk of collapse, even after weeks of sustained US and Israeli bombardment.

Meanwhile, the domestic situation in Iran is extraordinarily dangerous for any would-be rebels, who would face the regime’s full security apparatus with no assistance or protective umbrella from the United States.

Then there is the nuclear question—the only other justification for the war that survives serious scrutiny.

Here is the nightmare scenario the administration has conspicuously declined to address: if the Iranian state destabilizes sufficiently, what happens to that material and who controls it?

Iran’s enriched uranium sits buried deep underground. The bombing has not reached it.

The prospect of enriched uranium passing into the hands of some ragtag successor faction, or worse, is a critical question. The administration not only provides none; it gives no indication it has even seriously considered it.

Trump, meanwhile, in Trumpian fashion, says everything and nothing simultaneously.

In an interview with CBS News, he declared the war “very nearly complete.” Markets moved on the word. Oil prices dipped briefly; stocks jumped.

Then, within hours, he reversed course—the war would end “very soon,” but “we’ve got much more to do.”

By afternoon: “We have won in many ways, but not enough.”

These slight changes of key carry worldwide consequences. Oil prices have gone through the roof—gas at levels Americans have not seen since the energy shock of 2022—and the political advisers in the White House, you can be certain, watch that number with the focused dread of men watching a fuse burn.

Iran, for its part, has decided that defiance is its only wartime currency. It has announced, with some bravado given the circumstances, that Tehran will decide when the war ends.

Meanwhile, the war is stunningly, historically unpopular with the American people.

Every American war, even ones that later passed into historical disrepute, began with a surge of popular support.

Pearl Harbor: 97 percent.
Afghanistan, in the raw aftermath of September 11: 92 percent.
The Persian Gulf War: 82 percent.
Panama: 80 percent.
The Iraq war, for all that followed: 76 percent.
Korea: 75 percent.

Twelve days into this war, Americans support it by an abysmal 41 percent—the lowest opening number for any American conflict on record.

A Reuters/Ipsos poll puts support at 27 percent. The Fox News poll—not exactly a Democratic house organ—finds 50 percent.

The spread itself tells a story: public opinion is still forming, which means it has nowhere to go but down as the costs come into focus.

The American people did not choose this war. No one prepared them for it, consulted them, or gave them a framework for understanding it.

They woke up one morning to find the United States bombing Iran.

No Colin Powell moment at the United Nations. No sustained public case or national debate. George W. Bush, for all his failures of candor on Iraq, at least made his case before the American people. He gave them an argument.

Trump gave them a fait accompli.

That failure to prepare the public mirrors the failure to prepare the ground.

They are expressions of the same underlying disorder: a president, and therefore an administration, that moves on impulse; disregards law, morality, and consequences; and confuses raw strength and destruction with foreign policy achievement.

So here is what we have to show for the war: a widening conflict, an undefined mission, an undisturbed nuclear program, a regime that shows no signs of collapse, a historic spike in oil prices, and a president who cannot give two consecutive sentences pointing in the same direction.

The paramount question—how to exit, on what terms, under what framing, with what claim to success—has no prepared answer.

Because preparation, of any kind, was never part of the plan.

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.

In Trump's Georgia Ballot Seizure, Election Denial Outweighs Evidence And Law

In Trump's Georgia Ballot Seizure, Election Denial Outweighs Evidence And Law

Before the affidavit supporting the Fulton County ballot seizure was unsealed, the mystery was what evidence could possibly justify a search warrant for election materials from 2020. Now that we have seen it, the mystery is how this one—so plainly deficient in probable cause—was approved at all.

The affidavit is vacuous at the center. It identifies no suspect. It alleges no criminal intent. It does not explain how the materials sought would establish the elements of a federal offense. Instead, it assembles a series of recycled allegations about supposed election “deficiencies” and concludes that if those deficiencies were intentional, the seized materials would constitute evidence of violations of federal law.

That conjectural leap is not a substitute for probable cause.

The affidavit invokes two statutes: 52 U.S.C. § 20701 (record retention) and § 20511 (knowing and willful election fraud). Yet it never alleges knowing or willful conduct by anyone. It does not identify who committed a crime, when it occurred, or how the elements were satisfied. Nor does it explain how the requested materials would demonstrate criminality rather than everyday administrative error of the sort that is common in a large election office.

More striking still, the affidavit recites findings that cut directly against any inference of criminal intent. It quotes a bipartisan Performance Review Board that found “no evidence of fraud, intentional misconduct, or large systematic issues” affecting the 2020 result. The affidavit does not rebut or distinguish that conclusion. It simply moves past it.

The same pattern repeats for other essential elements. The affidavit recycles old allegations, long parroted by election deniers, about duplicate scans, unsigned tabulator tapes, ballot images, and “pristine” absentee ballots that state officials and others previously have examined and dismissed. The affidavit recounts those contradictory determinations yet nevertheless goes on to treat the underlying discredited, or at best highly contested, claims as grounds for a sweeping criminal seizure.

Nor does it explain to the magistrate why the actual sources of information are credible and reliable. An affidavit can rely on second-hand information, but it needs to demonstrate that the information is trustworthy at the source, for example by showing the source has previously given solid intel. That failure is especially glaring here given the reports that the driving force behind the current investigation was a referral from a notorious and longstanding election denier, Kurt Olsen, now Trump’s Director of Election Security and Integrity.

The affidavit also fails to grapple with staleness. The election occurred in November 2020. Much of the investigative activity described took place in 2021 and 2022. The warrant didn’t issue until years later. The probable cause standard encompasses a requirement that evidence not be stale. The affidavit doesn’t speak to that point at all, which is telling, since so many of the allegations are old and recycled. The record retention charge conceivably could be ongoing, but even as to that, an affidavit must show that the evidence of violation is fresh. Likewise, the document doesn’t engage with statute-of-limitations constraints that would bear on any conceivable prosecution.

The immense scope of the warrant only magnifies these defects. The magistrate authorized seizure of all physical ballots, ballot images, tabulator tapes, and voter rolls from the 2020 election. This is not a narrowly tailored search tied to a defined criminal theory. It is a comprehensive removal of an election archive based on broad speculation rather than concrete allegations of wrongdoing.

Most strikingly, after reciting a series of recycled allegations—many of which have already been examined and rejected—the affidavit in its penultimate paragraph offers this gem:

“If these deficiencies were the result of intentional action, the election records identified in Attachment B are evidence of violations of 52 U.S.C. §§ 20511 and 20701.”

Er, yes—and if the elements of a crime were satisfied, there would be a crime. Probable cause requires a fair probability that those elements, including the requisite mental state, have in fact been established. Saying “if these deficiencies were the result of intentional action” is not evidence of intent. It is an acknowledgment that intent has not been shown.

It is hard to miss the neon sign blinking: the affidavit does not establish probable cause, because, among other reasons, it provides no evidence on an essential element of the crimes in question.

As a former federal prosecutor, I know what would have happened had I submitted a draft like this for review. It would not have been fun. The first question a supervisor would have asked would have been, What, precisely, is the criminal offense? The second: Where is the evidence of intent? The third: How does this search establish each element? Those questions are not rhetorical flourishes. They are foundational. An affidavit that cannot answer them does not get filed, both because it would violate Fourth Amendment rights and because it would harm the office’s credibility.

In our polarized climate, it is tempting to assume the magistrate was politically captured. But there’s no basis for that conclusion. The magistrate here is a respected former public defender with deep criminal-law experience and a sophisticated understanding of probable cause doctrine. That makes the approval perplexing—but it does not ground a more cynical explanation.

I think the most plausible account is that the approval was an error by a conscientious professional. That happens. Unfortunately, this one carried real consequences.

The FBI has removed roughly 700 boxes of ballots and related materials from Fulton County. Courts are often reluctant to unwind a seizure immediately; suppression or return typically occurs, if at all, in later proceedings. And now that it has all the goods, it is not even clear that DOJ is contemplating criminal charges.

This is where the stakes of the case, and the consequences of the flawed warrant, come clear.

Recall that in January 2021, Trump browbeat Georgia’s Secretary of State Brad Raffensberger to “find 11,780 votes.” He did not ask for proof of fraud. He asked for a number—just enough to reverse the result. Raffensberger turned him down, doing right by the country.

But now, armed with this treasure trove of ballots and voter data, the administration could attempt to do on its own what Trump couldn’t do by haranguing. The raw election materials in the FBI’s possession could allow for a frontal attack on results that Trump couldn’t undermine with the rear-guard action in 2020. Ongoing “review” of ballots can justify calls for federal intervention. Access to voter rolls can fuel aggressive eligibility challenges and purge efforts.

Or consider the other Georgia heist Trump was plotting in 2020: getting a DOJ flunky to send a letter falsely claiming that the Department had detected fraud in the count. As Trump chillingly put it, “just say that the election was corrupt and leave the rest to me and the Republican Congressmen.” The broader lesson here is if Trump can foment chaos and create turbulence on the ground, he is halfway home to reversing particular election results.

We know that the administration is zealously seeking the same sort of information the warrant provided in over a dozen states around the country, all part of Trump’s call to Republicans to “take over the voting in at least many — 15 places. … The Republicans ought to nationalize the voting.”

It’s a goal they are pursuing in all corners. That’s the explanation for Pam Bondi’s bizarre suggestion that the Department would pull back on Operation Metro Surge in Minnesota if the state would turn over access to the state’s voter registration lists. And you can bet some similar agenda is in play for the upcoming meeting on February 25 that the administration has called for state election officials from all 50 states.

Fulton County is not taking it lying down. The County Commission and Board of Registration and Elections have filed an emergency motion under Federal Rule of Criminal Procedure 41(g), seeking return of the seized materials.

Rule 41(g) permits a person aggrieved by an unlawful search to seek return of property. When no criminal charges are pending—as here—the district court exercises equitable jurisdiction. The movant must show a possessory interest and that continued government retention is unreasonable. If the warrant lacked probable cause or exceeded statutory authority, the court may order the property returned.

The County argues that the affidavit failed to establish probable cause; that the cited statutes do not support any viable prosecution; and that DOJ bypassed ongoing civil and state proceedings to obtain through a sealed criminal warrant what it had been seeking through supervised litigation. It also points to concrete harms: Georgia law requires original ballots to remain sealed in state custody, and federal removal interferes with statutory duties and pending cases.

Meaningful relief under Rule 41(g) is rare. But given the conspicuous deficiencies in the affidavit, Fulton County has more than a symbolic argument. It has a fighting chance. Ultimately, however, that determination rests with the discretion of the district court after full adversarial briefing.

The bad news here is that now the government has seized original ballots and voter data, it has the wherewithal to make a disruption that cannot be entirely reversed. The good news is that the episode is essentially a one-off. It provides no precedent or momentum for the administration’s other efforts to seize voter data.

This essay began with a simple question: what happened to probable cause?

The answer should not be that it bent to political turbulence. If courts insist on what the Fourth Amendment requires—actual evidence of actual crimes—this will remain a cautionary, albeit damaging, episode, not a template for federal seizure of election materials elsewhere.

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.

Lemon Easterwood

Debased Pam Bondi Serves As FACE Of A Performative Prosecution

Editor’s Note: This is the second of a two-part essay about the indictment of Don Lemon. Part One focused on the process and motives behind the prosecution. This part addresses why the charges fail on their own terms and what the case signals for press freedom and the Department of Justice.

Part One of this Substack argued that the Lemon indictment was never a conventional exercise in law enforcement, but a performance prosecution—conceived, announced, and executed to signal loyalty rather than to survive judicial scrutiny. This second part turns to the law itself. When the statutes invoked here are taken seriously—particularly the Freedom of Access to Clinic Entrances Act (FACE) Act and the conspiracy statute, 18 U.S.C. § 241—the indictment’s defects become unavoidable. What emerges is not an aggressive but lawful application of criminal statutes, but an effort to transform protest and newsgathering into “force” and “intimidation” by assertion.

A careful reading of the indictment shows just how far the prosecution departs from the conduct Congress sought to criminalize.

The document’s basic move is to try to recharacterize the demonstration as a “coordinated” and “takeover-style attack” on religious worship, repeatedly labeling participants as “agitators” and framing opposition to immigration enforcement as hostility toward religion itself. There is repeated emphasis on the reaction of congregants—fear, distress, and discomfort—and on assertions that the experience was “traumatic.”

But FACE does not criminalize disruption or emotional impact. It requires force, threats of force, or physical obstruction, terms that courts have construed narrowly precisely to avoid sweeping protected protest activity into criminal liability.

What the government does instead is proffer a series of highly loaded descriptions to try to cram the protest into the sort of blockading, threatening conduct that FACE criminalizes in the example of reproductive clinics. It all depends on deeply distorted accounts.

Read carefully, the core assertions really come down to the government’s tendentious allegations as opposed to concrete facts. So the indictment asserts that Lemon “stood with other agitators” in order to “intimidate” congregants, “positioned himself close to the pastor” while questioning him “in an attempt to oppress and intimidate,” and “physically occupied” portions of the sanctuary so as to “obstruct” freedom of movement.

Those are characterizations, not evidence. Even crediting the government’s account at face value, the conduct alleged does not begin to resemble the paradigm FACE cases involving barred entrances, locked arms, or bodies used as physical barriers.

It’s actually a sort of two-step: 1) massage every aggressive moment in the demonstration to try to portray it as “force and intimidation,” and then 2) distort the planning process to make it seem as if that, not the protest, was the conspiratorial aim of the event (and of course Lemon was in on it).

More generally, Bondi’s (who in a flagrant departure from established norms put her name atop the federal indictment) dogged inclusion of the word “coordinated” suggests that all of this physical force was a part of the “conspiracy” from the start. In this way, the indictment takes routine journalistic practice and tries to re-jigger as a planned attack and shutdown in order to prevent religious practice.

What the indictment offers instead is crass political overreach. It just repeated assertions of intimidation and obstruction untethered from factual allegations that would plausibly establish those elements, let alone do so beyond a reasonable doubt.

It may well be that some congregants’ religious observance was disrupted. Protests often are, by design, disruptive. Lemon himself said that the demonstration was “traumatic and uncomfortable” for some churchgoers. That might make it impolite or gauche; it does not make it criminal. Again, the statute requires force, threats, and physical obstruction, as those terms have always been understood.

As applied to Lemon, the indictment’s allegations strain to the breaking point and beyond. The government repeatedly changes the character of what actually occurred. It treats speech as intimidation, proximity as obstruction, and knowledge as agreement. Chanting becomes menace. Presence becomes coercion. Reporting becomes participation. And any fleeting or incidental contact in a crowded, fast-moving demonstration is folded into the conspiracy itself.

That is not how FACE cases are built. In cases that sustain convictions, the physical interference is direct, not inferred. Barred doors; blocked patients; physical restraint of movement.

Here, by contrast, the government is forced to aggregate expressive conduct and contextual discomfort in order to approximate the statute’s requirements. That move is revealing. It reflects not the strength of the evidence, but the weakness of the fit.

It is also hard to miss the symbolic payoff. FACE was enacted at the urging of pro-choice advocates to stop physical blockades of clinics. Here, that same statute is redeployed against churchgoers, with protest speech and presence reframed as “intimidation.” For an Attorney General attuned to political signaling, there must be a strong sense of satisfaction in turning a civil-rights weapon forged by abortion-rights advocates and wielding it on behalf of a very different constituency.

The indictment attempts to shore up these defects by adding a conspiracy charge under 18 U.S.C. § 241, but that move does not rescue the prosecution. Section 241 requires agreement and intent to interfere with a federal right through injury, oppression, threat, or intimidation. It does not dispense with those requirements; it incorporates them.

Here, too, the government relies on recharacterization rather than proof. They simply repackage the conduct that fails to satisfy FACE’s force-and-obstruction requirements as conspiratorial intimidation. Without a limiting principle grounded in actual coercive conduct, § 241 would threaten protected expression as well.

The government will likely counter that journalists enjoy no special exemption from generally applicable laws—a proposition the Supreme Court has often affirmed. But those cases arise in a different posture, when journalists seek privileges unavailable to private citizens. Running alongside them is another, equally settled line of jurisprudence recognizing the press as a structural safeguard of democracy, separately protected in the constitutional text itself. That principle does not confer immunity, but it does require courts to scrutinize attempts to transform newsgathering and protest coverage into criminal conduct by redefining statutory elements. That is precisely what is happening here.

Pam Bondi did not inherit this case; she claimed it. She overrode career prosecutors, put her own name on an indictment no prior Justice Department would have brought, and treated the prosecution itself as a form of communication. The point was never primarily to win in court. It was to be seen—to arrest first, announce loudly, and force a public reckoning before any judge weighed the evidence.

The Lemon indictment is not a good-faith attempt to enforce federal law. It is a performance prosecution—designed to signal loyalty and resolve rather than to vindicate criminal law or survive judicial scrutiny. To Bondi, the Department of Justice appears to be a stage, and the career prosecutors who once gave it ballast little more than incidental players.

As with the boss she so slavishly aims to please, Bondi keeps pushing the envelope. The Lemon prosecution is plainly retaliatory, but it adds an unprecedented twist: the criminal targeting of a journalist for routine news-gathering activity. Bondi began with Comey and James—pure enemies cases. She then moved to Powell, Walz, and Frey, stretching the law to gain leverage in policy and political disputes. Now she has escalated again, firing a broadside at the press itself. The result is not just retaliation against particular critics, but a warning shot across the bow of the press as an institution.

Much political theater is harmless. This is not. Here, Bondi treats the machinery of federal prosecution as a stage and uses it accordingly. She overrides career prosecutors, repurposes civil-rights statutes as props, and converts charging decisions into talking points designed to serve an endlessly vindictive President. It all reflects Bondi’s indifference to the actual work of the Department of Justice and her embrace of the political imperatives that have inverted its priorities—cementing her legacy as a willing architect of its politicization.

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.

When Life Gives You Lemons, Act Like Total Lawless Jerks

When Life Gives You Lemons, Act Like Total Lawless Jerks

Editor’s Note: The indictment of Don Lemon is both pernicious and unprecedented. The indictment and the process that led to it implicate both prosecutorial practice and the limits of criminal law. For that reason, this Substack proceeds in two parts. Part One focuses on the process and motives behind the prosecution. Part Two addresses why the charges fail on their own terms and what the case signals for press freedom and the Department of Justice.

For starters, U.S. attorneys general don’t put their names at the top of federal indictments, as Pam Bondi did on the indictment of Don Lemon filed last Thursday.

That’s just the first in a series of glaring irregularities in the indictment of Don Lemon (and Minnesota local journalist Georgia Fort) last Friday.

That series tends to demonstrate that the prosecution, which career prosecutors advised Bondi against, has nothing to do with the standard work of the Department of Justice. It is something else entirely: a performance, carefully staged by Pam Bondi to impress an audience of one—Donald Trump.

Bondi announced the charges Trump-style on X, explicitly claiming credit for the operation: “At my direction, early this morning, federal agents arrested Don Lemon … in connection with the coordinated attack on Cities Church in St. Paul, Minnesota.”

She reinforced the point in a pre-recorded video statement in which she again claimed the indictment as her own. At the same time as she played to the president, she dodged everyone else: the pre-recorded video ensured she would not have to answer questions, leaving Todd Blanche to stand live in front of the cameras and absorb the blowback.

The AG’s announcements were a second complete departure from DOJ practice. Standard DOJ protocol is for charges to be announced by the U.S. Attorney’s Office in the district where they are brought—not by the Attorney General asserting personal operational control. I know of no other case in which the AG has hogged the spotlight.

Bondi followed up Monday morning with a swaggering, tough-talking tweet, complete with Trumpian capital letters: “If you riot in a place of worship, we WILL find you.” The strut was pure phony bravado, and again from a safe distance: what happened in the church is far from what we think of as a riot, and public protesters didn’t try to hide to keep from being found.

Third, Bondi, in her statement, took personal credit for Lemon’s arrest—a ministerial detail that no attorney general would ordinarily concern herself with, let alone advertise. Decisions about whether and when to arrest a defendant are routine operational matters, handled by line prosecutors and agents, not the nation’s chief law-enforcement officer. Except here.

The arrest in fact was a third instance of deviation from the DOJ playbook, and this one particularly petty and vicious. Standard DOJ practice in the case of a public figure of Lemon’s prominence would be to send him a summons and permit him to self-surrender, as happened, for example, after the indictments of Donald Trump. (The one exception that comes to mind was Rudy Giuliani’s roundly criticized practice as U.S. Attorney of forcing white collar criminals such as Michael Milken to do “perp walks.”)

Lemon instead was arrested, late at night, and held long enough to spend the night in jail. There was no law-enforcement rationale for that decision. Lemon posed no conceivable risk of flight, no danger to the community, and no reason to believe he would not appear voluntarily. The obvious explanation is Bondi wanted to humiliate Lemon, and the obvious reason was to please the boss, whose antagonism toward Lemon is well-known and longstanding.

Bondi has been widely reported as having fallen from Trump’s good graces, particularly as the Department of Justice has suffered a string of embarrassing losses in courts around the country. Judicial rebukes, emergency stays, and skeptical bench rulings have undercut the administration’s political priorities. Against that backdrop, a high-visibility prosecution targeting immigration protest, religious worship, and a longtime Trump antagonist offered something else: a show of aggression, loyalty, and resolve—aimed not at persuading judges, but at reassuring a single, volatile audience.

From Bondi’s perspective, the case was irresistible. It checked three boxes that matter deeply to Donald Trump: Minnesota immigration enforcement, religious worship framed as a church under siege, and Don Lemon himself—a prominent journalist and longtime Trump antagonist. A case that combined all three was not merely a prosecution. It was a political trifecta.

The indictment process itself represents another clear break from established practice. According to press reporting, the decision to bring the Lemon case came from the top of the Department, not through the ordinary judgment of the local U.S. Attorney’s Office. Those same reports indicate that career prosecutors raised objections, warning that the charges stretched civil-rights statutes beyond their traditional bounds.

That brings us to the most conspicuous and consequential irregularity of the case: the merits.

The main charge in the indictments of Lemon and Forts (who also was subjected to FBI most-wanted list treatment in her arrest by a squad of FBI and DHS agents) is a violation of the Freedom of Access to Clinic Entrances Act (“FACE”).

FACE was Congress’s response to a sustained campaign of aggressive and often violent blockades of reproductive health clinics by anti-abortion activists in the late 1980s and early 1990s. Across the country, organized groups physically obstructed clinic entrances, chained themselves to doors, blocked driveways, and harassed patients and providers seeking to enter.

These actions were designed to shut clinics down through force and intimidation. Local authorities often proved unable—or unwilling—to respond effectively, and civil remedies offered little deterrence. Congress enacted FACE to fill that gap: to protect access to lawful medical care by targeting force, threats, and physical obstruction, while leaving peaceful protest and expressive activity untouched.

The inclusion of religious worship was also the product of legislative compromise. Adding protection for houses of worship broadened political support for the bill and reinforced that FACE was aimed at coercive interference with constitutionally protected activity rather than at suppressing protest or expression tied to any particular cause. By covering religious practice as well as reproductive health care, Congress sought to ensure access to places of worship against the same forms of coercive interference, while preserving the constitutional line that leaves peaceful protest and expressive activity untouched.

Thus, the problem FACE was designed to address was not protest or offense, but tactical efforts to shut lawful activity down through force, threats, and physical obstruction.

To prove a violation of FACE’s criminal provision, prosecutors must show that the defendant, by force or threat of force or by physical obstruction, intentionally injured, intimidated, or interfered with a person because that person was obtaining or providing religious services.

FACE has an express carve-out for expression. The statute provides that “nothing in this section shall be construed to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment.” The Constitution’s protection of speech would, of course, operate anyway, but Congress wanted to emphasize the point.

Courts interpreting the act have consistently emphasized that point in a series of cases in which FACE has survived First Amendment challenges.

Not surprisingly, the paradigm FACE cases involve concerted acts of violence to physically prevent women from gaining access to reproductive health services. They include defendants who locked arms or chained themselves to entrances; physically blocked doors, hallways, or stairwells; refused to move when ordered to do so; or used vehicles or other objects to bar access to buildings. In those cases, the interference with medical services was not merely disruptive or upsetting; it was the very point of the conduct. People could not enter or leave. Services could not continue. And the obstruction itself—not its expressive content—did the work.

Courts have been equally clear about what does not fall within FACE’s reach. Chanting, shouting, leafleting, questioning, filming, and following at a distance—even when aggressive, unwanted, or deeply offensive—do not suffice. The statute does not criminalize protest as such. It criminalizes physical interference. That distinction is what keeps the statute from swallowing the First Amendment. In the second part of this essay, I’ll analyze why the charges in the indictment don’t begin to meet the standard.

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.

No 'Absolute Immunity' Means Minnesota Can (And Must) Prosecute Federal Agents

No 'Absolute Immunity' Means Minnesota Can (And Must) Prosecute Federal Agents

Even as the federal government makes grudging gestures toward slightly dialing back operations in Minnesota, it is doubling down on its insistence that it has exclusive authority of any investigation or prosecution of federal officers involved in the fatal shootings of Renee Good and Alex Pretti. That stance is likely to reach a climax in an inevitable battle over the issue of supposed federal immunity from prosecution.

At a federal court hearing Monday, Justice Department lawyers argued that the shootings arose out of federal immigration enforcement, were carried out by federal officers performing federal duties, and therefore are exclusively federal matters. In recent days, they also denied Minnesota investigators access to the shooting scene even after presented with a state judicial warrant. The state had to go to federal court, which issued an order to preserve all evidence. That level of recalcitrance by the feds, which I have never seen, portends an upcoming campaign of defiance at every turn.

More stunning still, federal authorities are taking steps that appear designed to impede Minnesota from proceeding at all. The state’s interest here is acute: to all appearances, two of its citizens have been gunned down with no legal justification. I have worked on a number of cases involving overlapping federal and state jurisdiction, including the Rodney King prosecutions. In such cases, the federal government invariably cooperates with the state, often deferring to its initial prosecution.

Here, the template is the precise opposite. As a leading expert on police use of force told The New York Times: “Now we’re seeing not only no cooperation but contamination. That’s new territory.”

The concern is no longer merely that federal authorities are declining to assist a state investigation, but that they will assert their power in every legal way—and possibly then some—to prevent Minnesota from moving ahead at all.

Adding to that picture is the administration’s choice of emissary. Tom Homan, now replacing Greg Bovino in Minnesota, hardly signals a turn toward restraint. Homan’s public posture—and a widely reported episode involving $50,000 in cash carried in a CAVA bag—are no augury of reasonableness. They reinforce the expectation that federal resistance will be aggressive rather than accommodating.

Meet the new boss, same as the old boss.

The standoff is imminent. Hennepin County Attorney Mary Moriarty put it plainly: “Our office has jurisdiction to review the matter for potential criminal conduct by the federal agents involved, and we will do so.” Minnesota Attorney General Keith Ellison told me the same thing in a conversation we had last week.

The state is asserting its lawful authority to investigate and, if warranted, prosecute. The federal government is signaling just as clearly that it will fight that effort at every turn—procedurally, jurisdictionally, and doctrinally.

In these circumstances, it is essential to have a clear-eyed view of the legal landscape and Minnesota’s authority to prosecute the killers of its citizens. It is a complicated landscape, but Minnesota is lawfully entitled to press ahead and make its case. Vice President J.D. Vance’s reflexive assertion that the officers enjoy “absolute immunity” is frivolous. (Absolutely immunity does not exist. More on that below).

This essay is the companion piece to my prior Substack examining the affirmative case in the killing of Renee Good—the evidence, as it stands, how it is developing, and why it increasingly points toward criminal liability under Minnesota law. That earlier piece focused on the prosecution’s case in chief. This one takes the next step. It assumes that investigations continue to develop, that Minnesota responds by bringing criminal charges, and that federal authorities resist at every turn, particularly by asserting that the defendant officers are immune from state prosecution. How does that play out?

I noted in my earlier essay that I would set out the range of likely defenses at trial. Those begin with case-specific factual arguments by the federal officers—arguments that, as explained below, are unlikely to be tested in court anytime soon.

In the Good case, the factual defense will revolve around a single proposition: that the officer reasonably believed he faced imminent lethal harm. The car, the defense will argue, was a deadly weapon; the officer was positioned in its path; and deadly force was a split-second response to an unfolding emergency.

That claim is the factual linchpin for everything that follows. Without it, there is no viable claim of self-defense under Minnesota law—and, spoiler alert, no plausible claim of Supremacy Clause immunity either.

The difficulty for the defense is that the evidence developed so far cuts sharply in the opposite direction. Video shows the officer approaching without visible urgency, positioning himself alongside and slightly clear of the vehicle rather than directly in front of it, and preparing his weapon before any clear escalation. Frame-by-frame analysis has called into question the assertion that Good’s car was ever on a trajectory to hit him. And the autopsy leaves little doubt that the fatal shot came after the car had turned away, with the officer firing through the driver’s side window at a time when he was under no possible threat. That leaves only the argument that less than a second had passed from the first shot and that the officer remained in the throes of fear for his life.

The Pretti case presents an even starker picture. On the facts publicly known at this stage, it is difficult to see any viable factual defense. The reflexive claims by government officials that Pretti brandished his gun and rushed officers collapse under the growing weight of the video evidence. Indeed, those official misstatements may become part of the prosecution’s case, or of Minnesota’s legal efforts to force federal authorities to stand down.

Three realities will shape how any trial defense actually plays out.

First, guilt must be found unanimously and beyond a reasonable doubt. That high bar is easy to overlook, but many excessive-force cases end in hung juries or acquittals because one or more jurors harbor reasonable doubt. Juries are often sympathetic to law enforcement and sensitive to claims of uncertainty, chaos, and split-second judgment.

Second, the defense case will vary dramatically depending on whether the defendant testifies. That choice is risky, but in a defense premised on fear of imminent deadly harm, there is no substitute for the officer’s own account. And once an officer takes the stand, the case often turns into a referendum on credibility. In the state Rodney King trial, several officers testified and the jury acquitted. In the federal prosecution, one officer testified (the other most culpable defendant did not), and the prosecution dismantled his account on cross-examination—likely driving the guilty verdict as much as the video evidence itself.

Third, and especially relevant given likely federal resistance, is whether the state can secure any cooperators. In the Pretti shooting, for example, there were seven Customs and Border Patrol officers present, and the video evidence seems to establish that all ten shots came from two officers. If Minnesota can induce one of the others on the scene to cooperate by leveraging potential charges, the case would change entirely. Likewise, in the Good case, the officer who ran up to the car screaming at Good may face exposure sufficient to induce cooperation.

That brings us to the pivotal issue in any Minnesota prosecution of either case: whether federal officers are immune from state criminal liability.

We can quickly dispense with Vance’s claim of “absolute immunity.” No such immunity exists, even for presidents. The Supreme Court recognized immunity for Trump only for official acts.

States have prosecuted federal officers for state crimes, including homicide, since the early Republic. The Constitution does not forbid such prosecutions. What it forbids is state interference with the reasonable execution of lawful federal duties.

The governing doctrine is Supremacy Clause immunity, often called “Neagle immunity.” It protects federal officers who are lawfully doing their jobs. If states could criminally prosecute officers for the reasonable execution of federal duties, federal law would not be supreme.

Under In re Neagle and its modern descendants, Supremacy Clause immunity applies only if two conditions are met: the officer was acting pursuant to federal authority, and the conduct was “necessary and proper” to carry out that authority. Courts generally emphasize that the “necessary and proper” inquiry is chiefly objective: the officer must have had an objectively reasonable and well-founded basis to believe the conduct was necessary. Although some courts have noted modest variation in how the test is framed, subjective good faith alone has never been sufficient.

The operative question for Supremacy Clause immunity in a Minnesota prosecution, then, is whether the shootings were necessary and proper exercises of federal authority.

That standard is admittedly amorphous, and reasonable judges may apply it differently. That uncertainty clouds Minnesota’s prospects. But in these cases, the standard substantially overlaps with both Minnesota self-defense law and federal civil-rights liability.

Under Minnesota law, deadly force is justified only if a person reasonably believes, under the circumstances as they perceived them, that it is necessary to prevent imminent death or great bodily harm to themselves or another.

Under 18 U.S.C. § 242, criminal liability requires proof that an officer knowingly or recklessly used force that was objectively unreasonable under the Fourth Amendment.

Under Supremacy Clause immunity, courts ask whether the officer had an objectively reasonable and well-founded belief that deadly force was necessary to perform lawful federal duties.

Different doctrines, different institutional purposes—but the same factual fulcrum: a reasonable perception of imminent lethal danger.

There is some play in the joints. Supremacy Clause immunity is decided by a judge, often early. Self-defense and civil-rights liability are jury questions. Immunity sounds in federalism rather than culpability. But where, as here, the asserted federal duty is ordinary law enforcement and the act is the use of deadly force, the “necessary and proper” inquiry largely collapses onto the same question. If a reasonable officer could not have believed deadly force was immediately required, all three defenses fail together.

What makes immunity a more imposing hurdle than a substantive trial defense is its procedural posture. An officer asserting Supremacy Clause immunity may remove a state prosecution to federal court under the federal-officer removal statute. There, immunity is litigated as a threshold issue. If established, the case is dismissed.

Removal would most likely follow the filing of state charges, though, given federal resistance even to investigation, immunity could be raised earlier. That timing would not materially alter the ultimate trajectory: immunity must be resolved once, and only once.

The rub is that immunity is, by definition, an entitlement not to stand trial. A district court’s denial is therefore immediately appealable—to the Eighth Circuit and potentially to the Supreme Court. That does not mean the kind of protracted delay seen in the Trump prosecution, where the issue was novel and the Court remanded for proceedings under a newly announced framework. There, the case took roughly seven months from district court to Supreme Court decision. More typically, immunity-based removal motions are resolved within a few months.

Federal supremacy was never meant to operate as federal impunity. The possible crimes at issue here have grown into constitutional moments. The country awaits—and demands—a full response governed by the rule of law. If federal officers can kill civilians, and federal authorities can then refuse state cooperation, defy subpoenas, and invoke federal supremacy to block investigation altogether, the problem is no longer one of immunity doctrine. It is a breakdown in the basic architecture of accountability—essential to any democracy—which cannot survive if the federal government may commit the most visible and serious abuses and then extinguish both state authority and independent scrutiny of its own conduct.


Bovino

After Constitutional Outrages In Minnesota, Congress Must Act Immediately

It’s more than a crime now.

It’s a violent reign of lawlessness against Minnesota, perpetrated by the federal government.

We are once again madly analyzing a kaleidoscope of images through a smoke screen of ICE lies. So I’ll attach the prosecutorial asterisk and say my immediate impressions—strong and disgusted as they are—aren’t designed to substitute for the constitutionally required, beyond a reasonable doubt, final take on what’s happened. We have to hope far more information brings the focus into crystal clarity, even as it looks as if the feds are taking action to prevent it.

But, from what we have in only the hours after the horrific episode, the latest fatal shooting of Alex Pretti replicates the worst, most lawless features of the Renee Good killing.

Pretti, a 37-year old ICU nurse and American citizen, is holding a phone, with which he is recording the scene. Filming public spaces, including the actions of law enforcement officers, is generally protected by the First Amendment, much as it seems to infuriate ICE officers on the ground.

An agent roughly shoves a protester to the ground, and Pretti helps lift her up. Four or five officers surround Pretti. They pepper spray him twice and wrestle him to the ground, on his back. Although he has a gun and a license to carry it under Minnesota law, he never takes it out (though officers will later publish a picture of it with the false impression that he was threatening them). It looks, in fact, as if they take it away, and he is disarmed on the ground.

One of the officers suddenly fires a shot, and after a brief pause, fractions of a second, nine more shots, apparently from multiple officers, ring out in quick succession. 1 1-2-3 1 1-2-3 1-2.

It looks like nothing so much as a mob execution.

The feds, up to and including the President, not simply officials on the ground, immediately circle the wagons and proffer a series of lies.

DHS attributed the killing to “defensive shots” after Pretti “violently resisted” attempts to disarm him.

Stephen Miller branded Pretti a “domestic terrorist” and “would-be assassin.” Vice President JD Vance issued a statement blaming public officials.

Trump immediately posted to social media praising ICE officials as “patriots,” blaming Governor Tim Walz and other Minnesota officials for “inciting insurrection.”

Greg Bovino, quickly shaping up as the comic-book-character evil face of the whole operation, claimed that Pretti approached officers with a drawn handgun. Bovino continued, “This looks like a situation where an individual wanted to do maximum damage and massacre law enforcement.”

Whatever one’s views of the circumstances that ICE agents confront, the gravity of these reflexive official lies to the American people can’t be overstated. The highest federal official immediately jumped in to defame and disparage the victim of an ICE killing. That is exactly how totalitarian governments react. It’s the sort of official dishonesty that can and should bring down governments, as with the Dreyfus affair in France.

Next in the familiar template, federal officials band together to forcibly keep local law-enforcement from investigating the crime scene. Their bullying of state counterparts extends to the raw refusal to honor a state-issued judicial warrant.

Taken together—the shooting itself and the federal response afterward—the episode screams out profound contempt for both the Constitution and the public it exists to serve.

There are dozens of critical details that require immediate attention on the part of dozens of different actors in Minnesota, Washington, and around the country. These include, most exigently, the preservation of the crime scene and the strongest countermeasures to prevent ICE and the feds—the suspects here in a homicide and cover-up—from interfering with the ability to fully investigate and prosecute.

I and many commentators will speak concurrently to those exigencies in coming days. But there is something more urgent that this latest abomination calls for immediately.

Congress has to act now to cut off all funding to ICE.

That means voting to block new funding for ICE in the current DHS appropriations bill for FY 2026. Beyond that immediate step, it means amending the budget to substantially reduce ICE funding in general. And it means thereafter taking up legislation to remove ICE’s authority and dismantle its law enforcement function, which should be transferred to another agency altogether.

Again, whatever one’s views of the costs to the country of illegal immigration—and all indications are that the people caught in the dragnet of the Trump surge have overwhelmingly committed no offense other than possible immigration violations—they pale in comparison to the shredding of the Constitution and the vicious tactics of federal law enforcement, cheered on by the highest government officials.

Members of Congress, every one of them, need to assess with the highest sobriety where they want to be now and what they want the United States to represent and portray to the world.

As a country, we’ve endured some searing examples of law-enforcement overreach, from Reconstruction, to the Red Scares, to segregation, to anti-war protests and the Kent State killings, to the war on terror.

None of these painful episodes, most of which historians and Americans view today as tragic and avoidable, combine the pernicious features of this federal war on Minnesota.

There are many responses to the Pretti killing to undertake from many quarters. But above all, and unavoidably, it’s the immediate responsibility of Congress, which has done so much to enable and encourage the historic abuse of Donald Trump, to step up to its official constitutional role as the people’s representative.

It is now a clarion call of a generation. Congress must answer it, swiftly, fully, and fearlessly.

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.

In The Fed Case, Justices Confront The Problem Of The Lying President

In The Fed Case, Justices Confront The Problem Of The Lying President

The consensus after Wednesday’s much-anticipated argument in Trump v. Cook was that the Supreme Court of the United States was likely to rebuff the president’s attempt to fire Federal Reserve governor Lisa Cook.

But while the bottom line was relatively clear, the rest of the story was murkier. The justices expressed frustration with the underdeveloped record in the case and with their obligation to figure out how to proceed on a record that was, in many ways, preliminary.

Thus, Justice Samuel Alito asked why the Court was being asked to proceed in such a hurry, noting concerns that key parts of the factual record were not clearly before the justices.

Of course, “hurried” here is five months since the attempted discharge, but that’s lickety-split in the world of appellate litigation. More to the point, the preliminary nature of the case and the record are completely a function of the Court’s own decision, as it has done so frequently in Trump’s first year, to grant review of the case in the early stages on an emergency-posture basis.

That posture virtually guaranteed an underdeveloped record. For example, the justices had no pre-termination hearing to assess, and the actual “notice” of her firing was a Truth Social post by Trump announcing her discharge, before any formal process had run its course.

The justices were left to wrestle with two broad approaches. The first would be to send the case back to the lower court for factual development. That would get the case out of the Court’s hair, but it would leave the underlying substantive issue unresolved and might require further Court consideration down the line. The second would be to bite the bullet and offer some minimal definition of “cause,” and then determine that Trump’s proffered reasons for firing Cook did not meet that standard.

For example, the Court could conclude that cause under the statute cannot rest on alleged gross negligence alone. Or that it cannot be based on pre-appointment conduct, as it was here. Or that it cannot be grounded in conduct unrelated to the officer’s professional duties.

But there was an additional, largely unspoken problem hovering over the entire oral argument.

That problem is that the president is a lying liar who wakes up lying and lies all day (LLWWULALAD).

The solicitor general was forced to play along with the fiction. His chief argument was a vigorous defense of the idea that Cook should be discharged because of her supposed gross sin: an inaccurate statement on mortgage paperwork.

Cook’s lawyer, the masterful Paul Clement, argued that the administration’s proposed definition of cause amounted to an at-will standard in disguise, green-lighting any reason the president chose to fasten onto.

And more to the point, Justice Brett Kavanaugh, the functional center of the Court and its most frequent member of the majority last term, pushed the parties to docs on “real-world, downstream effects.” Kavanaugh posed the spectre of “what goes around, comes around,” meaning that a future Democratic administration could discharge Trump appointees en masse under the expansive cause standard the administration was championing.

That hypothetical rests on an important assumption: presidential good faith. If that assumption holds, the danger Kavanaugh described largely evaporates. A truthful president would not invoke threadbare allegations of minor or remote misconduct—such as a disputed entry on a mortgage application predating a governor’s tenure—to justify removal.

The concern animating Kavanaugh’s questions, however, is that a president might use a nominal “cause” as a make-weight excuse for what everyone agrees would be improper: the dismissal of a Federal Reserve governor for policy disagreements.

But for that concern, a weak but bona fide discharge for cause wouldn’t be a big problem. Kavanaugh, a veteran of Washington’s embroiled political battles (recall his service for Ken Starr in the Clinton investigation, which he cited in his pugnacious confirmation testimony) understands that the actual risk is a weak cause standard could easily be met and serve as a pretext for policy differences.

And of course, that is precisely what happened here. Nobody in Washington believes that Trump actually cares about Cook’s long-ago mortgage paperwork. The problem is not merely that the cause is weak; it is that the asserted cause is an obvious pretext.

And this is one of only dozens of instances in which Trump is doing a similar move of citing some sonorous concern—mortgage fraud, or academic integrity, or false statements to Congress—that is really a shield for raw political will.

And that’s because Trump is a LLWWULALAD.

So whatever rope the justices give him—even to fire someone for weak cause—would in practice amount to letting him bully the Fed to do his bidding, including on the setting of interest rates, in other words, doing exactly what his lawyer agrees would be unlawful but getting away with it by lying about the true case.

The markets would clearly understand that. The result would be a collapse of confidence long anchored in the Fed’s professionalism.

But only where the president is a LLWWULALAD.

At one point, Kavanaugh asked Sauer directly whether the Court was supposed to second-guess the President’s stated reason or whether, instead, it should “defer and assume the stated cause was valid.” Sauer responded by invoking the Court’s longstanding tradition of not questioning the good faith of the executive.

And you can be fairly well assured that the justices will not retreat from that doctrine, which will be at issue in future cases involving Trump, in particular, given that he is a LLWWULALAD. If the Court applies an irrebuttable presumption of good faith to Trump’s determinations—about, for example, the existence of an insurrection, a rebellion, or other emergency conditions—it risks green-lighting extraordinary powers that could be used in many ways, including to try to reverse an election.

Here, however, the justices have already carved out the Federal Reserve from the administration’s broader wrecking-ball effort to eliminate for-cause protections across independent agencies. So it was common ground in the argument that the Fed’s for-cause protection is constitutional and governs Cook’s case.

That should take us a long way toward Cook’s reinstatement. Ordinarily, it would be enough. But the Court must still confront the problem that the president is a LLWWULALAD.

The Court knows the score, as did everyone in the courtroom. Expect the justices to find a way to rebuff Trump without saying out loud what they all know to be true.

They will not say it, but they understand that allowing Trump to prevail on an obvious pretext—a lie—would mean that, in Dickens’s words, the law is an ass.

When the opinion issues, it should not take much deciphering of the Court’s decorous prose to understand that there is an ass in this case—but it is not the law.

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.

In Minnesota, Political Repression And Prosecutorial Abuse Under Color Of Law

In Minnesota, Political Repression And Prosecutorial Abuse Under Color Of Law

It is by now a familiar Trump pattern. He blows through what had long been understood as an inviolable boundary of law or institutional norms and then, rather than pausing to let the system respond, accelerates—compounding the original violation with still further abuses.

That pattern is now unfolding in Minnesota.

The federal government has announced that it has opened a criminal investigation into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey on a pretext so thin as to be transparent. The move belongs in the same category as the reprisal prosecutions that have marked the first year of Trump’s second term. But it goes further, aggravating an already grave constitutional injury with a series of additional, compounding corrupt acts.

News reports indicate that grand jury subpoenas have been issued, though at least one major outlet reports uncertainty about whether they have actually been served. Either way, the signal is unmistakable. The machinery of federal criminal investigation is being turned on two political adversaries of the president who are not remotely culpable.

What follows reflects not a single abuse, but five distinct and reinforcing forms of corruption.

1. No Cognizable Crime

A federal criminal investigation requires, at a minimum, a cognizable offense—something to write on the folder in the U.S. Attorney’s Office. Here, the administration has settled on 18 U.S.C. § 372, the Reconstruction-era ban on conspiracies to interfere with the exercise of federal rights.

All indications—from public statements by senior administration officials to comments by Trump himself—are that the supposed “interference” with federal law enforcement consists entirely of public statements by Walz and Frey. There is no indication the grand jury is considering any nonpublic evidence.

Thus Border Czar Tom Homan proclaimed that “rhetoric from the mayor and the governor emboldens that small percentage who go beyond protesting to criminal activity” (a curious moral lecture from an official still unable to explain the $50,000 he carried off from an FBI sting in a CAVA takeout bag). Homeland Security Secretary Kristi Noem similarly complained that Walz and Frey “have been very clear that they’re going to continue their rhetoric.”

But the “rhetoric” in question consists entirely of statements urging peaceful protest against what Walz and Frey have described as unconstitutional federal immigration tactics. Those statements—again, all part of the public record—encouraged Minnesotans to exercise their constitutional rights, criticized ICE practices, and emphasized calm and lawful conduct.

That makes the invocation of § 372 not merely strained, but ridiculous.

To sustain a charge under § 372, the government would have to prove beyond a reasonable doubt that Walz and Frey entered into an agreement to deploy force, intimidation, or threats to obstruct federal officers. Nothing remotely approaching such evidence has been suggested. One would have to imagine a governor or mayor openly directing citizens to physically attack or menace ICE agents. No honest federal prosecutor could plausibly believe the elements of § 372 are satisfied here.

To invoke the criminal process anyway is corrupt in precisely the same sense as the Comey and James reprisal prosecutions: it uses federal prosecutorial power to punish political enemies rather than to vindicate the law.

2. Criminalizing Protected Political Speech

The infirmity is not merely statutory. It is constitutional.

When the alleged crime consists of speech, additional constraints apply.The Constitution forbids criminalizing even heated political criticism except in the narrowest circumstances. Under long-settled First Amendment law, the canonical Brandenburg standard, rhetoric may be punished only if it is 1) directed to and 2) likely to produce 3) imminent unlawful action.

Indeed the court has made clear that the First Amendment protects even “advocacy of the use of force or of law violation “— exactly the line Walz and Frey have not crossed. That is necessary, the Court has emphasized, in order to “assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

Here, the Feds have not even suggested any covert maneuvering, back-channel coordination, or operational interference with federal agents. The alleged misconduct lies exclusively in Walz’s and Frey’s public comments. Those include objections to what they characterized as a federal “invasion” of Minnesota and assurances to citizens of their constitutional rights. The public record reflects restraint and legality, not exhortations to unlawful obstruction.

The contrast with Trump’s conduct on January 6 underscores the constitutional inversion at work. As Jack Smith testified, the Department was prepared—after a comprehensive investigation—to prove that Trump’s words were intended to incite unlawful action and satisfied the Brandenburg standard because they were directed to producing imminent lawlessness and were likely to do so. Even in that setting, prosecutors moved with painstaking caution, acutely aware of the dangers of criminalizing political speech. Here, the Justice Department jettisons that caution and treats speech urging lawful protest as suspect while recasting criticism of federal enforcement tactics as criminal intimidation.

3. Using Criminal Process to Gain Leverage in a Losing Political Battle

The Comey and James prosecutions, ugly as they were, at least fit a familiar pattern of personal vendetta. This episode is worse.

The subpoenas aimed at Walz and Frey are not merely about punishment. They are about pressure—about coercing Minnesota’s elected leadership in the midst of an ongoing political confrontation that the Trump administration is losing badly. Rather than defend its policies through political persuasion or litigation—Minnesota has now sued the federal government in a broad-gauged action alleging multiple constitutional violations—the administration has reached for the criminal law to change the balance of power.

Even if, as seems likely, no case ever eventuates—because prosecutors decline to proceed, a grand jury balks, or a court throws it out—the investigation itself exacts a toll. It imposes anxiety, drains time and resources, and inflicts reputational harm. Trump knows this well, having repeatedly weaponized the justice system only to retreat when his hand is called.

In that respect, the Minnesota episode closely resembles Trump’s recent bullying of Federal Reserve Chair Jerome Powell. Powell stated the point plainly: threats of criminal prosecution were not about misconduct at all, but about pressuring the Federal Reserve to abandon its independent judgment and follow the president’s policy preferences.

Threatening criminal prosecution to gain leverage in a political dispute is an additional level of corruption. It is all the more brazen when deployed in contests the administration is losing on the merits. Recent polling shows that a majority of Americans view ICE unfavorably and support the independence of institutions like the Federal Reserve. Here, the Justice Department is being pressed into service to achieve political objectives that cannot be secured democratically.

4. Flagrantly Improper Public Declarations of Guilt

Even as this purported investigation proceeds, senior administration officials have paired it with public statements that all but declare guilt. In the context of a pending criminal inquiry, that conduct is itself an abuse of power.

Administration figures have mocked Walz and Frey as “dumb” or “boobs,” demeaned them as “corrupt,” and gone so far as to label them “terrorists” or “insurrectionists.” This language does not clarify the government’s legal theory. It poisons the well, framing elected officials as criminals before any adjudication—and in some instances before any charge.

The most repugnant comments have come from the public official who should know better than anyone else not to prejudice a pending investigation: Deputy Attorney General Todd Blanche. Blanche declared that a “Minnesota insurrection is a direct result of a FAILED governor and a TERRIBLE mayor encouraging violence against law enforcement,” adding that he was “focused on stopping YOU from your terrorism by whatever means necessary.” These are extraordinary remarks from a senior Justice Department official speaking mid-investigation.

When the story of this Justice Department is written, there will be a special section devoted to Todd Blanche. A once-ordinary federal prosecutor has remade himself into a loyal political enforcer, repeatedly transgressing long-settled Department norms in service of the president’s political aims. His conduct here is not an aberration; it is a marker of institutional decay.

5. Corrupt Use of the Grand Jury Process Itself

Finally, the issuance—or even the threatened issuance—of grand jury subpoenas in such a threadbare case completes the abuse.

We have not seen the subpoenas. But it defies common sense to think they are limited to the public statements that form the entirety of the administration’s supposed theory of exposure; such subpoenas would serve no investigative purpose. One can be confident they demand internal communications, drafts, calendars, messages, and deliberative materials from the offices of a sitting governor and mayor.

Courts have long held that the grand jury may not be used when its dominant purpose is something other than pursuing a viable criminal prosecution. Federal prosecutors may not deploy compulsory process to rummage through officials’ records, harass or intimidate them, or gather political intelligence. Yet that is precisely what remains once it is clear—as it is here—that the floated charge is going nowhere and that the Department knows it.

Taken together, the picture is unmistakable: a criminal investigation launched without a crime, aimed at protected speech, used to gain leverage in a losing political battle, accompanied by public declarations of guilt, and enforced through abusive use of the grand jury.

The legitimacy of the Justice Department rests on the fundamental premise that its extraordinary powers may be exercised only to pursue provable crimes, not to coerce political outcomes. The investigation of Governor Walz and Mayor Frey inverts that premise. It deploys the most fearsome tools of the federal government in response to lawful political speech, while stretching a criminal statute past recognition to manufacture exposure. That is not law enforcement. It is political pressure by prosecutorial means.

Walz and Frey are doing precisely what the First Amendment contemplates and protects, and its value is all the greater because they are leaders of the community. The fundamental perversion of the Administration, as in so many other instances, is to redefine anyone who disagrees with Trump as criminal and an enemy of the state. It’s the classic move, and springboard for vicious repression, of totalitarian tyrants from Stalin to Putin.

The core value on the line here is not the government’s authority to rein in lawless conduct; it is just the opposite, the constitutional protection of dissent aimed at that very government abuse. That is not law enforcement. It is political repression carried out under the color of law.

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.