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US Attorney General Pam Bondi

Pam Bondi Shows How It's Not Done

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Substack.

Leonard Leo

It's Just His Nature: Scorpion Trump Stings Frog Leo In Lawless Rage

Leonard Leo, the bête noire of liberals who curated Trump’s first-term judicial appointments, including his three Supreme Court justices, has gone from Trump's shortlist to his shit list. As is his wont, Trump turned on his loyal servant with particular savagery, calling him a “sleazebag” who had rendered bad advice on a series of judicial nominations.

Leo responded with comparative good grace, along with a pointed, if diplomatic, defense of his influential work: "I'm very grateful for President Trump transforming the Federal Courts…[T]he Federal Judiciary is better than it's ever been in modern history, and that will be President Trump's most important legacy."

The genesis of the fallout speaks volumes about Trump's view of the role of the federal judiciary, and of his own inner circle.

Trump's ire was sparked by the Court of International Trade’s recent opinion striking down his broad tariffs because they unlawfully usurped Congress’s powers and relied on supposed “emergency” powers under the International Emergency Economic Powers Act (IEEPA) that the Act does not provide.

This legal failing is a cross-cutting theme of Trump's indiscriminate power grabs. Similar to a number of modern would-be authoritarians, Trump has repeatedly tried to steamroll basic legislative authority by characterizing everyday political issues as emergencies requiring a strongman’s intervention.

The opinion was a unanimous per curiam (i.e., no single author was identified) by three members of the Court of International Trade: a Reagan appointee, an Obama appointee, and a first-term Trump appointee. Moreover, the Trump appointee, Timothy Reif, is—as Trump appointees go—unusually well qualified, having previously served as general counsel in the Office of the U.S. Trade Representative (USTR) in the Executive Office of the President and then senior counsellor to the U.S. Trade Representative.

The panel, including Reif, held that the IEEPA—the text of which doesn't even contain the word emergency—could not support Trump’s outlandish and all-too-familiar claims that the sky is falling. At the same time, the court noted the possibility of statutory sources of authority other than the one Trump invoked.

In response to the administration’s predictable motion for emergency relief, the Federal Circuit—the Court of Appeals for the specialized Court of International Trade—has imposed an administrative stay that tells us nothing about whether it will affirm the lower court on the merits.

Trump's temper tantrum is ironic, if not absurd, given Leonard Leo’s record as the administration’s judicial nominee whisperer. By any measure—on the left or the right, and whether provoking aversion or elation—Leo has compiled a phenomenally successful record in the service of Trump and the conservative judicial movement in general.

He follows in the footsteps of advisors to other Republican administrations since Reagan, who have adopted a single-minded focus on judicial appointees and have dramatically transformed the makeup of the federal judiciary. In Leo’s case, that includes Trump's three Supreme Court nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Conservative Trump supporters have generally taken those appointees—which have established an über-majority conservative Court likely to last for a generation or more—as back-to-back-to-back home runs.

Just for starters, all three of them voted to overrule Roe v. Wade, probably the number one goal of judicial conservatives for a generation, and a (dubious) achievement that for many years looked impossible. In terms of the personal bounty for Trump, all joined the outlandish 2024 immunity opinion that continues to provide him comfort on a regular basis—for example, just last week, with the pardon for Paul Walczak in the wake of a $1 million solicited donation by Walczak’s mother that fits the criminal elements of bribery to a T.

The larger lesson in Trump's excoriation of Leo is what it shows about Trump’s expectations of the purpose of screening his nominees.

Leo has served up a long series of candidates who talk the talk about conservative jurisprudence, including the newfangled articles of faith like robust Second Amendment interpretation, solicitude for religious-based intolerance, and the Supreme Court’s less-than-fully-coherent history-and-tradition test.

That doesn't cut it for Trump. One important opinion against him—plainly on the basis of well-established legal principles that any judicial conservative should embrace—and Leo gets moved to the other list, with a heavy dose of Trump’s obloquy for good measure. For Trump, there's only one test of judicial qualifications: ruling for Trump, whatever the law provides. Leo failed in his presumed duty to find absolute Trump toadies, or to quietly inculcate the potential toadies he did find.

Leo joins a very long list of former insiders whom Trump has abruptly cast out and vilified. Central advisers such as Mike Pence, Chris Christie, Anthony Scaramucci, Kayleigh McEnany, Mick Mulvaney, John Bolton, and many others have all tasted Trump’s poison, some for reasons that are minor or even mysterious. The fact is, there's no rhyme or reason to Trump's spurning of former close associates. It rather just seems to be a way of demonstrating domination and superiority to any advisor, however valuable.

Trump is like the scorpion in the fable of the scorpion and the frog. Not able to swim to cross the river, the scorpion asks a frog for a ride on his back. Knowing the scorpion’s dangerous sting, the frog hesitates: “How do I know you won’t sting me?” The scorpion replies, “Because if I sting you, we’ll both drown.” So, the frog agrees to ferry the scorpion across the river. Halfway there, the scorpion stings the frog, who with his dying words asks, “Why did you do that? Now we’re both going to die.”

“I couldn’t help it,” the scorpion replies. “It’s in my nature.”

Trump is a legal ignoramus indifferent to the Constitution and the role of law. His only interest is domination. He turns on those who served him faithfully because it’s in his nature.

The general agenda of Trump 2.0—outlined by the long blueprint of Project 2025—is to put in place a series of measures that grossly, and unconstitutionally, aggrandize Trump's personal power, rejecting any vestiges of restraint and lawfulness that stymied him the first time around.

Transposed to the federal judiciary, that means a careful search for judges like Aileen Cannon or Matt Kacsmaryk who—not to put too fine a point on it—are utterly in the tank for the president who appointed them and who could yet elevate them to higher judicial service.

So far, the Trump 2.0 judicial nomination process has little to show for itself; the Senate has confirmed none of his 11 federal court nominees this year.

Leo’s casting out thus portends a series of nominees carefully chosen to cross fingers behind their backs when they swear, as the law requires, to “administer justice without respect to persons.” Call it the attempted Cannonization of the federal judiciary—and, to the extent Trump can secure Senate confirmations, one more sharp departure from the rule 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 Substack.

Pam Bondi

Bondi's Injustice Department Is Abnormal, Authoritarian And Mean

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

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

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


1. The McIver Charges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The Cuomo Investigation

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

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

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

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

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

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

3. The Broader Issue

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

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

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

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

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

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

Reprinted with permission from Substack.

Qatari government

Trump's 'Palace In The Sky' Is A Constitutional Affront -- But Who Will Stop It?

Having brought Congress completely to heel in the political sphere, Donald Trump is now seeking to write them out of the Constitution. Both of his biggest moves of the past week entail the evisceration of a constitutional role the Framers very plainly and expressly wanted Congress to play.

That is the case for the flirtation with suspension of habeas corpus, which only Congress can do. And it’s even more manifest in Trump’s plan to accept a $400 million (or is it $625 million?) jumbo jet “palace in the sky” from the Qatari government.

On the suspension issue, Stephen Miller’s pompous primer on suspension of habeas corpus, coupled with the announcement that “we’re actively looking at [it],” was risible and unsettling in equal measure. The constitutional command he was mangling is directed to Congress, not the Executive—which is why it is in Article I along with other definitions of congressional power.

The recognition that only Congress can suspend is essentially universal, consistently reaffirmed in Court opinions from early in the 19th century, which themselves apply the previously ensconced practice from England. (Lincoln’s wartime suspension during the Civil War is not to the contrary: Congress was out of session; it later ratified the suspension; and many scholars still contend that Lincoln violated the Constitution.)

Moreover, Miller ham-handedly slices off the limiting half of the Clause in the second half—that suspension can occur only when “the public Safety may require it.” Whatever national crisis Trump is attempting to manufacture about the presence of immigrants in the country, the public safety does not require that courts not consider the due process rights of detainees.

Miller’s ensuing suggestion that the decision not to suspend is contingent on “whether the courts do the right thing” is a thuggish non sequitur. Whether courts remain available to entertain writs of habeas corpus cannot turn on the content of their decisions. This is no more than another “heads I win, tails you lose” suggestion from a lawless Administration.

Miller’s Suspension Clause rhetoric is of a piece with his assurance to Trump that the Supreme Court had ruled unanimously for him in its Alien Enemies Act opinion—when the opposite was the case. All nine justices agreed that the Administration has to provide due process to detainees. If the Administration continues to let Miller, a non-lawyer and faintly reptilian figure, announce its legal analyses, it’s going to suffer further embarrassment in the courts when actual lawyers have to disavow Miller’s legal twaddle.

But the Qatari 757 deal is even more blatant. The plane would replace Air Force One during the pendency of Trump’s tenure and then be given to his presidential foundation created after his presidency—presumably for his use.

There is, however, a small constitutional snag.

Article I, Section 9, Clause 8 of the Constitution—the Foreign Emoluments Clause—says that no person holding an office of the United States shall, without the consent of Congress, accept any present “of any kind whatever” from any foreign state.

Trump's first term was a serial violation of the domestic and foreign Emoluments Clauses, as influence seekers of all stripes clamored to support his Washington, D.C., hotel and other businesses. But the business profits he pocketed from people seeking his goodwill in the first term are chump change next to the gaudily lavish, gold-plated (and possibly bugged) Qatari luxury jet.

There is no serious argument that Trump’s acceptance of the plane does not violate the Emoluments Clause. Trump has tried to trot out an argument that it's really a gift to the government and not to him. But if it's partly for his personal enjoyment—and very clearly if it winds up with his foundation and not the government after his tenure—the law is quite clear that it falls within the Clause.

As usual, Trump is his own worst enemy in clarifying just what’s going on. Speaking to reporters on Monday, Trump noted, “I think it’s a great gesture from Qatar. I appreciate it very much. I would never be one to turn down that kind of an offer.”
He also justified the decision by saying he would have to be a “stupid person” not to take the plane, and he analogized the decision to agreeing to a gimme putt in golf. And we further know that Trump toured the jet in February. If Trump is the one to solicit and accept the offer, then it is not a gift to the federal government.

There is apparently an opinion blessing the deal from Attorney General Pam Bondi, who herself garnered six-figure fees from Qatar for lobbying on their behalf starting in 2019. We haven’t seen the analysis yet, but since Bondi sees it as her job to fight for Trump the person—as opposed to the office—you can bet that it’s at most as good an argument as can be made for a client, but a total loser.

The argument that Trump can be expected to rely on in the coming cluster of lawsuits from NGOs and state attorneys general is that the various plaintiffs lack standing. That was the central issue in most of the Emoluments Clause litigation during Trump 1.0. The courts were divided on the question, and eventually the Supreme Court dismissed the various cases as moot because Trump had left office.

In fact, properly understood, the standing issue only reinforces the unconstitutionality of what Trump is doing. It's true that it's hard to conceptualize the injury of the constitutional violation in terms of a pocketbook loss to, say, an individual state attorney general. It requires ingenuity and a court that takes a somewhat elastic view of standing.

That's precisely because the constitutional injury entailed by Trump’s acceptance of the palace in the sky is social, absorbed by all of us. It’s precisely for that reason that the Framers specified that Congress, the representatives of the people, must determine whether a particular gift may be accepted.

After all, not all gifts to officials are objectionable. Most famously, Congress in 1791 passed a resolution allowing Ben Franklin to keep a gold snuff box given to him by Louis XVI. On the other hand, Congress never exercised its authority to approve President Lincoln’s request in the middle of the Civil War to keep an elephant tusk from the King of Siam (along with an elephant, which Lincoln politely declined).

Consider the example of the Statue of Liberty, which Trump defenders are wont to proffer in his defense for keeping the plane—but which actually cuts sharply in the other direction.

The statue was a gift from the French people to the American people, not to a particular official. Moreover, Congress ratified its receipt.

But suppose Trump decided to transfer the Statue of Liberty to the Rose Garden, to gaze on and continually remind him of the grander purpose of his presidency. The injury of its removal from Liberty Island—and make no mistake, it would be an injury—would be to all of us, equally. And it would not really be a pocketbook injury, of the sort that confers standing in the federal courts, but an injury to our shared civic sense.

In the same way, Trump's acceptance in the people’s name of this gaudy showpiece would pose severe problems to the nation, even if no individual could demonstrate a particular monetary loss.

These examples illustrate that the appropriateness of a particular gift is a nuanced, contextual, political question. The Framers were extremely concerned about the prospect that gifts could be used corruptly to buy and sell influence. But they declined to constitutionalize a categorical rule against gifts, instead opting for greater flexibility and political accountability by insisting on an overall political judgment by the body best positioned to deliver it.

That judgment, by the way, is pouring in—and it’s largely negative. Many people on the right and left are expressing grave reservations about Trump’s excitement. Conservative commentator Ben Shapiro wrote that “[t]aking sacks of goodies from people who support Hamas, the Muslim Brotherhood, Al Jazeera, all the rest—that's not America First.” No less staunch a Trumpista than Laura Loomer called the Qatari officials “jihadists in suits” and disparaged the idea as “a stain on the administration.”

The chorus of critics now includes a number of elected Republicans. On Tuesday, the Senate Majority Leader, John Thune of South Dakota, said of the jet, “I can assure you there will be plenty of scrutiny of whatever that arrangement might look like.” Republican Senator Ted Cruz, a strong Trump ally, expressed national security concerns. “I also think the plane poses significant espionage and surveillance problems.”

All of this suggests that political pushback may eventually doom Trump’s cherished idea. If so, that's the sort of national judgment that the Constitution contemplates.
It goes without saying—anywhere but in Trump World—that the last person to decide whether a gift should be kept is the putative recipient. That means that, questions of standing aside, Trump’s plain constitutional responsibility is, as with Franklin and Lincoln, to serve up to Congress the question of whether he gets to keep his gold-plated palace in the sky.

And if he fails to do that, the plain reading of the Constitution is that he may not keep the plane. To do so would be to accept a present without the consent of Congress.
It’s not an anomaly but a matter of constitutional design that the charter establishes a limit that falls to the political branches to enforce. This being America in the twenty-first century, there surely will be lawsuits attempting to get at the constitutional problem.

But the fundamental dereliction is by our political leaders: If Congress fails to take up the question of whether Trump can keep the plane, it’s a fundamental disregard of its constitutional duties; likewise, if Trump tries to keep his latest and greatest toy without submitting it to Congress, he is flouting the Constitution, whatever Pam Bondi may say. The question, as always with Trump, is not what’s right or lawful or even decent, but whether anybody can stop him.

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

Reprinted with permission from Substack.

As Congress Cowers, Courts Push Back On Trump's Dictatorial Excess

As Congress Cowers, Courts Push Back On Trump's Dictatorial Excess

With Congress completely supine and content to cede its authority to Donald Trump, it has fallen to the federal courts to be the principal check on his tyrannical, anti-constitutional ambitions.

They have stepped up admirably. However devastating the abuses of Trump's first hundred days in office, we would be in far more dire straits were it not for the wide-ranging enforcement of legal limits that Trump has regularly transgressed.

Judicial appointees of every president since Reagan, and up and down the ladder of the federal courts, have been pushing back against Trump’s tear-it-down approach to governmental power and constitutional constraint.

It's not the way it's supposed to work. It is the legislature that is designed to be the president's chief antagonist. The Framers’ view was that the legislative authority "necessarily predominates,” and a lot of the constitutional design – for example, the establishment of two branches of the legislature with different auspices – is with an eye to giving the outgunned president better odds in battle with the legislative monster.

"It is against the enterprising ambition of the legislature, that the people ought to indulge all their jealousy and exhaust all their precautions," wrote Madison in Federalist 48.

Of course, seared by the example of George III, the Framers feared executive overreach as well.

The overall solution, famously presented in Federalist 51, is that “ambition must be made to counteract ambition.”

So when a president is able to intimidate majorities in Congress so wholly that they come to identify their ambitions with his, and prefer his leadership to their own, the constitutional formula is, well, put through the meat cutter.

There is only so much that federal courts can do to fill the breach. Again, quoting Madison from Federalist 78, the judiciary “may truly be said to have neither force nor will, but merely judgment.” And it “will always be the least dangerous to the political rights of the Constitution."

It's not simply that the federal courts lack enforcement power. It's also that they are passive, forbidden from acting until someone shows up at their doorstep with a genuine injury that they can help remedy.

For that and other reasons, a lot of the high-profile court battles of the last hundred days have been procedural and preliminary: the fight frequently has been about whether a court could put an order on temporary hold so that it could consider the challenge to a Trump order more fully.

It is only in the last few days that courts have actually rendered decisions on the merits about two of the biggest and most outrageous power grabs by Trump. A Trump appointee in the Southern District of Texas held that the administration’s fairly preposterous interpretation of the Alien Enemies Act – according to which a sundry collection of alleged Tren de Aragua members in the country constitutes a "predatory incursion" by a "foreign country” – was unlawful.

The second was the 102-page tour de force from the pen of Judge Beryl Howell on Friday. This is what I want to focus on today. Howell took Trump’s vicious and tawdry attack on the Perkins Coie law firm, tore it to shreds, then fed those threads through a wood chipper.

Her analysis was so thorough, and the violations so clear, that it seems doubtful that Trump can move forward with his reprisal agenda against law firms he bears grudges against.

Of course, that’s only partial solace for Perkins Coie and WilmerHale, the law firms who courageously took Trump to court rather than knuckling under as Paul Weiss and Skadden Arps have done. That’s because prominent clients will likely still pause before hiring a firm they assess remains on the Maximum Leader’s grudge list.

The "deals” that Trump has insisted on at gunpoint with various firms violate so many separate constitutional provisions, they are like a bar exam issue essay question. At their core, they punish law firms based on the viewpoint of their advocacy—a basic restriction on government power and a constitutional third rail. The added Orwellian feature is that the conduct under scrutiny is whatever stung Trump’s fragile ego, for example, briefly employing a member of Robert Mueller's staff or having prominent Democrats for clients.

Judge Howell dedicates the vast majority of her opinion, which grants summary judgment to Perkins Coie, ending the case in the firm's favor (subject now to appeals), to an analysis of nine of the claims in the Perkins complaint, eight of which she endorses. These include different theories under the First, Fifth, and Sixth Amendments.

But the more important words in the opinion are Howell’s broader social analysis of why Trump's order not only injures Perkins Coie directly but assails core features of democratic society.

She begins this farther-reaching lesson with a deft use of an oft-misunderstood famous line from Shakespeare, “Let’s kill all the lawyers.” The reason why Dick the Butcher, the slavish follower of a would-be tyrant, proposes getting rid of lawyers is to clear the way for lawless rule by man, not law. As Justice Stevens put it, “disposing of lawyers is a step in the direction of a totalitarian form of government.” (By the way, apropos of nothing but just since Shakespeare and Justice Stevens appear in this para, here is an interesting tidbit: Stevens was an anti-Stratfordian, i.e. he believed that someone other than Shakespeare, probably Edward de Vere, wrote the Bard’s plays.)

In granting relief to Perkins Coie, the particular plaintiff before her, Howell takes the opportunity to deliver an eloquent broadside on the deeper problems with Trump’s attempts to bring individual law firms to heel. His malice threatens much more than its objects. It is also an attack on the entire legal profession. And that attack, by extension, endangers “the public interest in truth and fairness,” which the Supreme Court in Legal Services Corp. v. Velasquez emphasized depends on a vigorous adversary system.

Letting the focus out one more level, Howell argues that Trump’s executive order tramples on basic tenets of justice and liberty. The engine of our system of justice is, to quote Chief Justice John Marshall in Marbury v. Madison, “the right of every individual to claim the protection of the laws.” That implies that Trump’s vindictive mugging of one law firm casts a shadow on the core concept of equal justice under law. Howell writes that “[u]nder the Fifth Amendment’s guarantee of equal protection… settling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the U.S. government or an American President.”

Judge Howell’s emphatic opinion striking down Trump’s order singling out a single law firm illustrates how, once they are empowered to act, federal courts can play a broader teaching role. Courts can only get in on the action on behalf of individual litigants with demonstrated injuries. But once they are properly invoked, they can be the avenging angels of far-reaching or even universal social principles that the president is savaging daily.

When the Supreme Court in Brown v. Board of Education determined that “separate but equal is inherently unequal,” it was granting relief to a relatively small class of public school students. But it was articulating a principle that revolutionized American society.

It’s not a question of using a case as a springboard for a general lesson in constitutional law. It’s rather perceiving the depth of the legal transgressions and their corrosive impact to extend well beyond the parties before the court.

Trump’s strategy is to isolate and crush individual targets. When successful, the approach deflects attention from what is properly understood as a frontal attack on democracy and the rule of law. But his selection of these targets is essentially arbitrary, in the sense that the only qualification is his animus, which can be triggered for the most picayune and morally irrelevant reasons. It really could be anyone—any one of us. As the post-WWII poem from a Nazi supporter turned opponent goes, “First they came for the Jews but I was not a Jew…”

It follows, though it is too frequently overlooked, that Trump’s reprisals and shakedowns of law firms, or universities, or big media, or non-government organizations, or inspectors general, or prosecutors are broadsides against democracy—or even assaults on American decency. He rends the social fabric on a daily basis.

To my mind, that is what is most memorable about the Howell opinion. In the process of demolishing the administration’s bizarre and malevolent interpretation of the law, Howell draws lines from the plaintiff in front of her to the legal profession, the adversary system, the rule of law, and the most fundamental sense of equal justice for all.

It would be preferable, and more in accord with the constitutional design, for the people, in the form of the legislature, to stand up for those values. In a different world, that might well include actions for impeachment: Trump has used the office to enrich himself and immiserate enemies in ways condign to the conduct that twice landed him in the dock of the Senate in his first term.

But as long as that's not going to happen, and so much of the political system is in utter thrall to a madman president, it's vital to be able to look to the federal courts to explain Trump’s broader menace.

We have Judge Howell to thank for a clear-eyed and razor-sharp explanation of Trump’s betrayal of core shared principles, well beyond his unlawful singling out of Perkins Coie. Other opportunities abound: we should be entering into a period where the courts invalidate a long series of executive orders. It would well serve the American people for them to explain how Trump’s fusillade of orders is, far more than a series of individual reprisals, a concerted attack on the very core of American society and the concept of democratic rule.

Talk to you later.

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

Reprinted with permission from Substack.

Shameless Grandstanding: Bondi And Patel Overreach In Feeble Case Against Judge

Shameless Grandstanding: Bondi And Patel Overreach In Feeble Case Against Judge

When word broke on Friday about the arrest of a sitting Wisconsin state court judge, Hannah Dugan, on charges of obstructing the arrest of an illegal immigrant, my immediate reaction on Bluesky was “Whoa. Feels like massive overreaching.”

Having now reviewed the charging documents and some accounts of colleagues, my off-the-cuff assessment stands. The arrest of Judge Dugan was a long stretch that is hard to square with the principles of federal prosecution which govern the decision whether to charge every federal case.

A perusal of the facts, as laid out in the affidavit of an FBI agent accompanying the criminal complaint, easily isolates the weak spot in the case.

The six-agent team that had gathered in Milwaukee County Circuit Court to arrest Eduardo Flores Ruiz, who was appearing in Judge Dugan's courtroom on domestic violence charges, had not worked out a protocol for Ruiz's arrest. Dugan was angry when she learned of their presence and demanded that they speak with the chief judge. She then returned to her courtroom, adjourned Ruiz’s case, and directed him to leave through the jury door.

Although the key detail is obfuscated in the FBI affidavit, the jury door led directly back to the same public hallway, where one agent was waiting as Ruiz and his counsel emerged. (The others were conferring with the Chief Judge.) The agent followed Ruiz and his lawyer and went down the elevator with them. Other agents joined them and sought to arrest Ruiz in front of the courthouse. Ruiz ran and was arrested after a foot chase lasting the length of the courthouse.

For those wanting more facts, this long Twitter thread by Ann Jacobs of the Wisconsin Election Commission dissects the allegations and highlights the many weak aspects of the case.

Based principally on these details, the FBI has charged Dugan with two federal crimes: harboring or concealing Ruiz so as to prevent his discovery and arrest (18 U.S.C. §1071) and “corruptly obstructing or impeding the due and proper administration of law,” i.e., Ruiz’s deportation.

The challenge for the feds will be proving beyond a reasonable doubt that Dugan intended to prevent Ruiz's arrest. It seems at least equally plausible that Dugan wanted to avoid any scene in or in front of her courtroom. The idea that Judge Dugan was seeking to prevent Ruiz’s arrest doesn’t add up. She directed Ruiz to leave through another door but, as she well knew, into the public hallway where the agents were waiting. That's hardly consistent with a desire to prevent his arrest. And of course, he was arrested in short order.

It's very unlikely that a Wisconsin jury is going to view this case sympathetically in the first instance. But if Dugan testifies and proffers another explanation, it's hard to see how a jury convicts her beyond a reasonable doubt. Indeed, if the case goes to trial, the feds will be at genuine risk of losing, ignominiously, on a Rule 29 motion based on a finding from the judge that no reasonable jury could find that the government proved intent beyond a reasonable doubt.

In any event, here's my prediction that Judge Dugan will not be convicted on these charges.

It's also worth noting the likely impact of the case. Ruiz was in court to answer serious charges of domestic abuse, which seem to be his only brush with the law since he entered the country without authorization. Given the widespread publicity, we have to expect that other people here illegally will be far less likely to risk arrest on federal immigration charges by showing up for court. That's a far greater cost to public safety than the short chase that Attorney General Bondi emphasized.

(I also want to note this was not the only immigration-based story unfolding over the weekend. We saw two particularly cruel instances of administration officials apprehending two different women who were making their scheduled reporting visits to the ICE office, wreaking havoc on their families.)

So the case is fairly weak, and the FBI overreached. It's not the first time that's happened, and it's not unique to the Trump administration. Of far greater concern is the unprofessional and corrupt political exploitation of the charges by FBI Director Kash Patel and Attorney General Pam Bondi.

Patel’s social media post trumpeting the arrest, which he quickly deleted, was the least of it. His gross abuse of discretion began with the decision to physically arrest and handcuff Judge Dugan at the courthouse as she was arriving for work Friday. A defendant like Judge Dugan should have been permitted, and 999 times out of 1000 would have been permitted, to surrender voluntarily after receiving a summons. FBI and DOJ rules give guidance for when to physically arrest a charged defendant – e.g., that the defendant is a flight risk, or a danger to the community, or is likely to destroy evidence, or has an extensive criminal history. Every one of the factors points to self-surrender rather than arrest, much less in sensational fashion at the courthouse as she arrived for work.

Treating Judge Dugan like a violent, dangerous criminal was obviously designed to score broader political points about the Administration’s wholesale deportations initiative. Patel decided to humiliate Judge Dugan for a sensational headline and to strike fear into the hearts of other judges. That not only contravened DOJ guidelines; it was bush and cowboyish.

Which brings us to Attorney General Bondi and her deeply embarrassing and unlawful exploitation of the arrest. Within hours of the episode, Bondi took to the airwaves of Fox News, where she cheerfully trashed Judge Dugan. She presented the allegations in the complaint as fact and added her own editorial denigrations. She said of the judge, “shame on her,” and of the charges, “you can’t make this up.” She continued, “we could not believe that a judge really did that,” and “what has happened to the judiciary is beyond me,” finally asserting that Judge Dugan is “deranged.”

Since she came to office, Bondi has had a consistent tin ear and an abhorrent proclivity to pepper her every public statement with blandishments of Trump and a suggestion that DOJ attorneys work for him personally, rather than the public.

It is a fundamental constitutional requirement in this country that a defendant is innocent until proven guilty, and that the government must prove all elements of a criminal charge beyond a reasonable doubt. It is probably the single most important rule that a prosecutor must live by.

Accordingly, the U.S. Attorney’s Manual, the operating bible for federal prosecutors, requires strict adherence to that command. That includes forbidding prosecutors from offering opinions on a defendant’s guilt, supplying their own character assessments, or making any statement that could influence the outcome of a trial at the charging stage.

It is drummed into the head of every federal prosecutor that in announcing the filing of charges, you stick to the four corners of the charging document. Moreover, you emphasize that the defendant is innocent until proven guilty, a statement that appears routinely in every press release announcing an indictment.

Bondi’s diatribe transgressed all of these guidelines and more. For any prosecutor, state or federal, Bondi’s trashing of a just-charged defendant was breathtaking. In this and multiple other instances in her short tenure – her speech introducing the President at the DOJ particularly jumps to my mind – she has appalled DOJ veterans of all stripes and eras. She is a disgrace to her office.

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

Reprinted with permission from Substack.

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

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

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

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

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

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

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

An Open Letter Opposing White House Retaliatory Investigations

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

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

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

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

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

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

Reprinted with permission from Substack.

Monsters Inc.: The Unconscionable White House Assault On Abrego Garcia

Monsters Inc.: The Unconscionable White House Assault On Abrego Garcia

Passover began this past weekend with the traditional meal and discussion known as the “seder.”

“Seder” means order, and the meal requires a precise liturgy unchanged for thousands of years. (The English translation has undergone a few rewrites to soften up the edges of what is a fairly martial story.) I was struck, as I hadn't been previously, by the following line recited during the breaking of the middle matzoh: “For the sake of our redemption, we say together the ancient words which join us with our people and with all who are in need, with the wrongly imprisoned and the beggar in the street.”

The reference to the "wrongly imprisoned” this weekend of course brought immediately to mind Kilmar Abrego Garcia, now residing in a hellhole gulag due entirely to his wrongful, mistaken deportation by the United States. I have previously analyzed the rank lawlessness and unconstitutionality of his abduction by the Trump Administration. And last Thursday, a unanimous Supreme Court affirmed that the Constitution requires the government to facilitate his release from custody in El Salvador

.

The Administration filed its latest response in the case on Sunday. It is a model of disingenuousness and arrogant contempt. The response simply ignores Judge Paula Xinis’s demand to explain what steps the government has taken—or contemplates taking—to reverse the deep injustice. It goes on to misconstrue the Supreme Court order, replacing the Court’s affirmation of Judge Xinis’s command to facilitate Abrego Garcia’s return with a made-up distinction between 1) steps to remove domestic obstacles that impede his return (there are none), and 2) any efforts whatsoever to effect Abrego Garcia’s release from custody in El Salvador.

The supposed distinction tracks neither what the Supreme Court ordered nor the law. On the contrary, it mangles the Court’s opinion in what could only have been a purposeful way. The DOJ filing asserts that the Court ordered it to take “all available steps to facilitate the return of Abrego Garcia.” But in fact, the Court expressly held that Xinis’s order “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.” It would have been a cynical and empty judicial command had it been limited to removing domestic obstacles to his return—whatever that even means.

Yes, there must be limits to the judiciary’s ability to nudge the Executive where the commands transgress demonstrable national security prerogatives, and those limits could be reached if El Salvador flatly refused to cooperate. Here, though, nobody with any sophistication doubts that El Salvadoran President Bukele will leap to do exactly what he thinks will please the U.S. president.

(In fact, an easy face-saving way out of the Abrego Garcia mess for the United States would be for President Bukele to announce today that, in his sovereign mercy, he is returning Abrego Garcia to the United States. If that happens, no one should be fooled: Bukele is a two-bit dictator who will do exactly what he thinks—or is told—Trump wants.)

The Administration’s filing sets the stage for a showdown with Judge Xinis on Tuesday, when she can be expected to excoriate DOJ lawyer Drew Ensign and demand actual answers and a good-faith showing that they’ve tried to comply with the order the Supreme Court affirmed.

But I want to focus today not on the patent lawlessness of the Department’s response but on its monstrousness. From the moment this grievous mistake was revealed, the Administration’s prevailing view about the ultimate Kafkaesque nightmare they have imposed has been a mixture of indifference and enthusiasm.

Thus, Trump, Attorney General Bondi, Vice President Vance, and immigration czar Homan have all trotted out versions of the argument that the "administrative error” is insignificant because Abrego Garcia belongs in the El Salvador Center for Terrorism Confinement (CECOT) anyway.

Vance argued, completely falsely, that Abrego Garcia was a “convicted MS-13 gang member,” when in fact he has never been convicted of that crime or any other in the United States. We’ve learned Vance was jumping to conclusions based on a stray suggestion from a confidential informant.

Bondi tried to deflect responsibility for the mistake onto immigration authorities. When a DOJ attorney acknowledged in court that the detention was an error—which was the only answer the attorney could have given consistent with his duty of candor to the court, and an answer the U.S. had already acknowledged—Bondi placed him and his supervisor on administrative leave for failing “to zealously advocate on behalf of the United States.”

Trump most recently has asserted that Abrego Garcia is in the "sole custody of El Salvador" and that his return is therefore "up to President Bukele and his government.”

This contention is at best highly misleading, and designed to frustrate Judge Xinis, who has current control of Abrego Garcia's case with the support of a unanimous mandate from the Supreme Court to “require” the Government to facilitate Abrego Garcia’s release.

It is preposterous to argue—and the Administration has done nothing to show—that it would be anything other than a light lift to secure Abrego Garcia's release with a simple request to Bukele, who is due to visit the White House today. And the Court, in effect, has required the Administration to undertake that light lift, and not to try to play games with national security assertions that are really beside the point.

Again, though—bogus legal assertions aside—it is stunning that the Administration remains so committed to not remedying its own grave error. Its bullheaded, reflexive position is basically: “Oh well, so we made a mistake, but there’s nothing to be done about it.”

This stance is a grotesque rejection of the most fundamental axiom of the rule of law and civilized society.

Here is how one eminent American jurist put it: “[i]f the rule of law is not the same for everyone, then it is not the rule of law.” His colleague echoed the sentiment when he proclaimed that equal justice under law “means that every person, regardless of wealth or power or station, is entitled to the same fair process.”

As the passage in the Seder makes plain, this recognition—far more than a precept of American law—is an axiom in the Judeo-Christian tradition, central to the rule of law everywhere it exists. It is firmly endorsed in the writings of the Founders. Ben Franklin is the source of the famous maxim: better one hundred guilty persons should escape than one innocent person should suffer.

Consider that idea, and the recognition of the ultimate horror of punishing the innocent that it encapsulates. Franklin is asserting—and his assertion has become talismanic—that a high cost to public safety and justice is better than the conviction of a single innocent. How much worse, then, is the summary delivery to barbaric life imprisonment of a man who should never have been rounded up in the first place?

The Administration has stood the Franklin adage on its head, changing it to something like: it is great that 100 persons we think are guilty should suffer, but greater still that 100 guilty persons and one innocent person suffer.

The U.S. government is ostensibly our government—a government of the people. Exercising power in our name, the president has brought shame upon all Americans with his embrace of a paradigmatic injustice, coupled with the lie that letting an innocent man rot in prison is a foreign policy imperative against which the law, the Constitution, and fundamental morality all must give way.

The coming test in the Supreme Court will pit first principles of justice and human decency against an arid claim that the intonation of the words “foreign affairs” or “national security” is a license for evil. As it did unanimously last week, the Court must stand firm against that grotesque assertion.

By the way, the names of the eminent jurist and colleague who so firmly recognized the principle that requires the return of Abrego Garcia: Chief Justice John Roberts and Associate Justice (and Trump appointee) Brett Kavanaugh.

Talk to you later.

Reprinted with permission from Substack.

Emergency! Supreme Court Avoids Catastrophe -- For Now

Emergency! Supreme Court Avoids Catastrophe -- For Now

Supreme Court twice in one day gives the Administration emergency assistance, but the bottom line might be palatable.

There's a lot to try to figure out about the U.S. Supreme Court’s intervention in favor of the Trump administration in two different high-profile cases today. In brief, there's a lot to like, a lot to fear, and a lot of uncertainty that will only be clarified in the weeks ahead.

Let’s start with the Supreme Court’s 5-4 per curiam opinion in Trump v. J.G.G., vacating the temporary restraining orders that Chief Judge Jeb Boasberg had entered in the Alien Enemies Act (AEA) case.

The most important aspect of the opinion was heartening, and dodged a cannonball: the Court made clear that review is available to test the identity of the deportee and the Administration’s (wacky) interpretation of the AEA.

That headline aside, which would have been stunning if the Court had gone the other way, I think the opinion was overall disappointing for a few reasons.

First, it provided a vivid reminder of the razor-thin margin on which our democracy may stand or fall. Notwithstanding some shifting alliances in the U.S. Supreme Court, the ultimate repudiation of Trump at the critical moment will likely depend on the decision of Chief Justice Roberts, who cast the fifth vote to provide the government emergency relief Monday evening. I've explained before my reasons for thinking that Roberts is essentially two different judges—the pro-Republican judge and the pro-Supreme Court judge—depending on how he sees the case. Today’s pivotal vote for the administration is something of a dry run for what could be a catastrophic and pivotal vote down the line.

Second, there was a certain sterility to the opinion that gave no indication of the bedrock gravity of the case, in which the administration has spirited away hundreds of Venezuelan nationals, at least one in error, under a very tenuous interpretation of the AEA. The reasoning is wholly procedural and the prose is wholly bureaucratic, as if the Court were interpreting some obscure federal regulation. In other words, there was not even a recognition of the overall stakes of the case and its integral relationship to a series of executive orders that have not simply aggrandized the president but also victimized countless residents.

The contrast was stark, with the dissenting opinions from both Justice Sotomayor (with whom Justices Kagan, Jackson, and, yes, Barrett joined as to the most important portions) and Justice Jackson. Sotomayor highlighted the harrowing facts and the fundamental issues of justice, and even decency, that they present. She takes the majority to task for not even mentioning “the grave harm Plaintiffs will face if they are erroneously removed to El Salvador.” And she further chastises the Court for “reward[ing] the Government's efforts to erode the rule of law.” Her opinion is about five times as long as the per curiam’s bland recitation.

Justice Jackson joined Sotomayor’s dissent in full and adds her own pointed criticisms of the ultimate horror latent in the case: “The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning.”

For the second time in recent days, Jackson questioned the Court’s willingness to hop to when the Administration cries “emergency.” The emergency setting necessarily entails less consideration and thought; moreover, Jackson writes, when the Court deviates from the normal process of full briefing followed by oral argument and internal deliberation, “the risk of error always substantially increases.”

This suspicion of emergency process has become a strong fault line in the Court. Kagan too has written about it of late. But so far, the five men on the Court (the 5-4 decision broke down by gender) have expressed no concern.

Third, the Court pulled the rug out from under Boasberg, whom it knows very well from the record and the media. Boasberg has exhibited patience and prudence in confronting a series of callous, evasive, and misleading claims from the government. The decision can't help but be taken as at least a soft vote of no confidence in a judge who more than deserves the higher courts to have his back. (The D.C. Circuit, in fact, did provide a strong shot in the arm to Boasberg when it denied the government’s motion to stay the orders.)

Fourth, as both dissents document, the Court has become way too promiscuous in its use of emergency procedures—as the Administration continually urges and abuses—to determine important questions that it easily could have addressed after full briefing, oral argument, and intra-court deliberation. Here, Boasberg’s TRO was due to expire in a few days. There is no persuasive reason the Court couldn’t have waited for his ruling and considered the issue in the normal course.

Finally, while the per curiam in no way forces Boasberg to stand down on his separate, and totally righteous, effort to get to the bottom of whether the Administration knowingly violated his orders in the initial hearing on March 15, the reversal could well take the wind out of his sails and arm the Administration with additional arguments for resistance (additional, that is, to the series of inconsistent and fatuous arguments it has offered thus far—most recently the State Secrets Privilege, which it then had to back away from).

ON THE OTHER HAND, as I say, the most important feature of the opinion is that all nine members of the Supreme Court agreed that deportees have a right to notice from the Administration and an opportunity to bring a habeas corpus action to contest the attempted deportation. More, a fair reading of the opinion suggests they agree that the challenges can encompass not simply a claim that the government got the wrong guy—the claimant isn’t part of Tren de Aragua—but also Trump’s far-fetched attempt to apply the AEA, which requires at a minimum a predatory incursion by a foreign country, to the few hundred gang members supposedly loose in the country.

That portends an emphatic rejection of the Administration’s most brazen and dangerous position: that Trump’s judgment as to what falls within the AEA is unreviewable. Any fair reading of the AEA should strike this interpretation down and invalidate Trump’s entire misadventure with the wartime statute. Had the Court gone the other way here, it would have been a giant lift for Trump in his efforts to use the pretext of national security to work his will in manifold ways across government and civil society. So that’s a huge collective sigh of relief.

But it raises another potential rub with the opinion. Habeas corpus petitions have to be brought in the district where the petitioner is in custody. Recall that the United States rounded up all the 200+ Venezuelan nationals and transported them to Harlingen, Texas, before the planes took off for El Salvador and the notorious CECOT Prison. If, going forward, the government can repeat the same maneuver, it will consign the deportees to bringing habeas actions in the Southern District of Texas and, even worse, appeals in the Fifth Circuit—the court of appeals that is even more conservatively extreme than the Supreme Court.

As I see it, there's an argument that the government has to provide notice, and therefore an opportunity for a habeas action, before it rounds up any deportees and whisks them away to Harlingen. That would mean that habeas actions would be brought all over the country. But that remains an unresolved issue, and the Administration will surely argue it can first assemble the potential deportees in its preferred venue of Harlingen, 30 miles from the Gulf of Mexico.

Better yet would be if the case of Kilmar Abrego Garcia proceeds first in the District of Maryland before Judge Paula Xinis. Xinis is almost certain to rule correctly and be affirmed by the court of appeals.

This was the second case in which the Supreme Court, or more precisely Roberts again, parachuted in on Monday to do the Trump Administration a solid. Xinis had ruled that the government had to work to return Abrego Garcia to the United States by Monday evening. In a posture as ugly as it is untenable, the government, which concedes it “disappeared” him in error, has been contending that there is no power to bring him back.

And as with the Boasberg case, the court of appeals rebuffed the Administration’s plea for emergency relief. The vote was unanimous, including from a highly respected conservative judge, J. Harvie Wilkinson.

This error from the Administration has been a primer in different sorts of stays from the Supreme Court. This one is the most benign: it’s an “administrative” stay that Roberts entered to permit the Court as a whole to consider the argument for emergency relief.

It does get the Administration off the hook for producing Abrego Garcia by yesterday at midnight, and one senses that they had taken no steps in that direction notwithstanding the Xinis order. In that respect, Roberts spared them distinct embarrassment and a likely scolding by Xinis.

If the Court, likely by the same 5-4 vote, permits the Administration to just walk away from the ultimate constitutional nightmare for which it is solely responsible, that would be an abomination matched only by the notorious immunity decision. It also would be a harbinger of more opinions to come green-lighting Trump’s authoritarian agenda. And it would give credence to the worst suspicions raised by the J.G.G. opinion.

But we're not there yet. I see it as likely that the Court, in any event, will trim back on Xinis’s order and permit the Administration to comply at something like “all deliberate speed.” But notwithstanding that all hope seems to rest on the thin and fragile reed of the Chief Justice—a distressing state of affairs in and of itself—I can’t fathom that he will countenance the Administration’s cynical effort to perpetrate an ultimate injustice.

Reprinted with permission from Talking Feds

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

Reprinted with permission from Substack.

Donald Trump WHCA

How Uncool And Humorless Donald Trump Killed The Funny

Authoritarians aren't known for their senses of humor. But the terminally unfunny and uncool Donald Trump has taken it to a new low. Out of fear of Trump’s thin-skinned resentment and bottomless appetite for reprisal, the White House Correspondents Association has canceled the comedy performance at the annual White House Correspondents’ Dinner on April 26.

The association caved following criticism of scheduled comedian Amber Ruffin by the White House for her critical jokes about the administration, with an added Trumpian slight that she was a "second-rate comedian.” Said the head of the WHCA in response, “At this consequential moment for journalism, I want to ensure the focus is not on the politics of division but entirely on awarding our colleagues for their outstanding work.” Translation: We are completely cowed by the prospect of offending the maximum leader, who, already departing from traditional practice, again won't even be attending the dinner.

While this may be absurd, and even pitiful, it is not funny.

First, I've been to the White House Correspondents’ Dinner and as anyone who has been there will tell you, the comedic performance is the highlight—if not the only bright spot—in a pretty dreary evening of people in formal wear looking over each other's shoulders to see who is coming into the room.

The whole evening really is forgettable—except for the comedy high points as by Stephen Colbert in 2006, Keegan-Michael Key playing Obama’s anger translator in 2015, and the all-time classic: Obama’s send up of Trump himself in 2011, which some see as the genesis of the whole Trump plague to get back at political leaders, the media, and elites everywhere for his humiliation.

Second, and more importantly, the White House correspondents’ obvious flinch once again illustrates Trump's improbable and pernicious influence on broad sectors of civil society—here the media.

And while the immediate loss may be just a few jokes, the broader principle is horrendous. The ability to criticize our leaders is not merely protected by the First Amendment, it is at its very heart. As Justice Frankfurter wrote 80 years ago, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures."

And it's not simply a matter of freedom in the abstract. It's critical to the whole American experiment that Trump is in the process of putting through the meat grinder. Chief Justice Rehnquist, who was hardly known as a civil libertarian, spelled out the fundamental principle in an opinion upholding the right to lampoon the proud and famous, "[t]he freedom to speak one's mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole."

Conversely, societies whose citizens and media fear criticizing their leaders are not true democracies. Most typically, they are repressive autocracies governed by fear. We wouldn’t be surprised to learn that Russian citizens feel nervous—or worse—when criticizing Putin, but we would see it as the soul of tyranny. It's time to hold the mirror up to our own quickly eroding democracy.

Trump is not only humorless; he's a killer of humor. He belongs in the same category as grim, ruthless, and fundamentally boring figures like Putin and Orbán. They are about as funny as a gray November afternoon in East Germany, circa 1980.

In fact, Trump is our most humorless president since Nixon. Both of them call to mind Paduk in Vladimir Nabokov’s Bend Sinister, a man bullied and ostracized and whose totalitarian rule is in some pathetic way an attempt at revenge for those grade-school slights.

So, no highlights this year of a comedian skewering the president. To make up for it, I am attaching a few classic clips from White House Correspondents’ Dinners in fully functioning democracies of years past, ending with Obama’s hilarious and standard-setting mockery of The Donald, which remains a riot to listen to, even if we may in some way still be paying the price for the skewering of this petty and puerile man by a President who was light-years more composed, wise, clever, and self-assured.

Talk to you later.

Last Week’s Talking Five Winner!

Another week, another batch of razor-sharp entries in our Caption This contest—proof that no matter how bleak the political landscape gets, at least we still have gallows humor.

Last week’s prompt: After Paul Weiss caved, the administration tacked on a few extra terms to their agreement. What’s the next minor-yet-entirely-autocratic requirement they’ll impose?

And wow, you all delivered. From Putin-Trump bro-mance jabs to nods at Melania’s modeling days to multiple demands for Brad Karp’s first-born grandchild, the competition was fierce.

In the end, we looked for something singularly absurd yet perfectly in character for this cartoonishly corrupt era. Rick Dortch took the crown with:

“Paul/Weiss Accepts Trump Crypto Only”

Wouldn’t even be the most dystopian thing they’ve pulled.

Congrats, Rick! A member of our team will reach out soon to get you your Talking Feds mug.

Reprinted with permission from Talking Feds Substack.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds

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


The Unlawful And The Awful: DOJ Is Decaying Under Pam Bondi And Ed Martin

The Unlawful And The Awful: DOJ Is Decaying Under Pam Bondi And Ed Martin

The Department of Justice is now awash in the corrupt abuse of federal prosecutorial power.

In just a matter of weeks, the newly installed Trump appointees have repeatedly undertaken conduct that violates the core principles of justice that have driven the department’s mission throughout our lifetimes. Their most ardent goal is to humiliate and exact retribution against the career professionals who worked the prosecutions of either Donald Trump or the January 6 insurrectionists. Separately, they have harnessed department power as a tool for hounding Democrats and advancing Trump’s political interests.

Simply put, they are ruining the place. And they are destroying the morale and sense of mission that have been the chief reward for the public servants who have proudly served there for decades.

The episode involving the dismissal of charges against New York Mayor Eric Adams for wholly improper reasons, which prompted a wave of resignations of some of the department’s best and most qualified prosecutors, was the canary in the coal mine. The DOJ is the mine itself, and much of it is now suffocating, even as the country’s attention is captivated by other domestic and international outrages.

As it turns out, the Adams case, which is still unresolved, was prelude to a series of less well-publicized abuses.

1. The EPA contract investigation

Even more grave than dismissing a case that is amply supported on the facts, as in Adams, is initiating one with no predication. Interim D.C. US Attorney Ed Martin, Jr. has persisted in a campaign to launch an apparently baseless criminal investigation into the Biden Administration’s award of a substantial contract with the EPA. The demands prompted the resignation (at the insistence of acting Deputy Attorney General Emil Bove) of a 24-year veteran and top supervisor in the Washington D.C. office, Denise Cheung. As Cheung wrote in her resignation letter, both she and a series of white-collar colleagues in the office concluded that there was not adequate predication under DOJ guidelines to open a criminal investigation.

“I took an oath of office to support and defend the Constitution, and I have executed this duty faithfully during my tenure, which has spanned through numerous Administrations,” Cheung wrote.

Martin’s response to Cheung’s forced departure, and the unanimous assessment of his senior prosecutorial staff that there was no predication to pursue a criminal investigation, were astonishing.

Martin personally submitted a search warrant application. The magistrate judge rejected the request, agreeing with Cheung and her colleagues that the application failed to establish a reasonable belief that a crime occurred. That happens basically… never. I can’t recall a single instance when it happened in a US Attorney’s office where I was serving.

Did I mention that Martin has exactly zero federal prosecutorial experience, the first appointee to that post in over 50 years without having been a prosecutor or judge? His background is as a Republican political operative in Missouri, and his main credential that brought him to Trump’s attention was his involvement on Trump’s behalf in the “Stop the Steal” efforts.

Even after the magistrate rebuffed Martin, he and Bove still forged ahead. Bove’s office approached at least one other US Attorney’s office to launch the grand jury investigation and seek a court-ordered bank freeze, but prosecutors in that office wouldn’t do it.

It now appears possible that Martin and Bove have found a path forward. Several groups that had been awarded money through the EPA contract said the bank has frozen their accounts and won't tell them why. If so, it's no vindication of the lawless campaign. Probable cause is not a casino game where you keep pulling the lever until you get the result you want. It's a factual legal predicate, and all indications are it is lacking here. In that instance, the ethical prosecutor stops.

In fact, it's ironic that a spokesperson for the department took a swipe at Cheung on her way out the door, saying that failing to follow orders “is not an act of heroism.” That's exactly what it is when the orders are to violate the Constitution. As a Supreme Court famously put it, the interest of the United States attorney in a criminal case “is not that it shall win a case, but that justice shall be done.” Cheung’s adherence to that maxim was in the best traditions of the Department of Justice. It was Bove’s and Martin's indifference to it that was dishonorable.

2. “Operation Whirlwind”

Martin has announced an initiative, which he has dubbed "Operation Whirlwind,” to investigate and prosecute threats to public officials. Except, it turns out to be an initiative to harass Democratic members of Congress for sharp political rhetoric that does not fall within the boundaries of normal criminal prosecution.

Martin's two targets to date have been Senator Chuck Schumer and Representative Robert Garcia. Garcia came into Martin's crosshairs for saying on CNN that Americans "want us to bring actual weapons to this bar fight. This is an actual fight for democracy.” Schumer, speaking at a pro-choice rally, called out Justices Gorsuch and Kavanaugh and said, "you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

Schumer's remarks were over the top, and he apologized for them. But one thing they weren’t was an actual physical threat to the justices, and Garcia’s even less. Under federal criminal law, the government would need to prove beyond a reasonable doubt that Garcia and Schumer intended to communicate an actual physical threat that a reasonable person would perceive that way, as opposed to heated political rhetoric.

No professional US Attorney's office would greenlight such an investigation. It would be a rank violation of binding DOJ principles. For one, no reasonable jury would mistake Garcia and Schumer's political rhetoric as a genuine threat.

That's why Martin couldn't open an actual federal investigation. Instead, Martin bluffed: he sent a letter saying he personally had received an unspecified request for information and clarification, and insisting, with an essentially empty but unsubtle threat, on an explanation. “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law.” (Bold and underlining in original.)

That's not how investigation of federal crimes works. US Attorneys do not insist in public letters that the targets of investigation, much less members of a coordinate branch, explain themselves. In fact, there's a clear rule that they don't communicate with members of Congress at all except through the Office of Legislative Affairs. It was particularly unethical for Martin to imply that the DOJ would lower the boom if the members didn’t “cooperate.”

If Martin were serious about policing threatening language by members of Congress, here's some low hanging fruit:

  • During her 2020 campaign (so still within the statute of limitation for threats), Rep. Marjorie Taylor Greene shared a meme depicting herself holding a rifle next to images of Democratic Reps Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib. The caption read, "Squad's worst nightmare."
  • In November 2020, Representative Paul Gosar posted an animated video depicting him killing Rep. Alexandria Ocasio-Cortex with swords and attacking President Biden.

Don't expect Martin to be demanding an explanation from Greene or Gosar anytime soon. They both have his good housekeeping seal of approval as certified election deniers and rabid Trump supporters.

3. January 6 demotions

Martin also was instrumental in the latest outrage, which came a few days ago, when he demoted several of the office's most senior and respected prosecutors. These are the career attorneys who handled the most significant January 6 cases, including the prosecutors who handled the contempt of Congress cases against Steve Bannon and Peter Navarro, the leaders of the Proud Boys prosecution, and the leader of the Steward Rhodes prosecution.

These are the sorts of respected professionals that are the lifeline of a US Attorney’s office. They now have been relegated to the most junior duties—the duties of a newcomer—prosecuting local misdemeanor offenses. It is the equivalent of being ordered to scrub the bathrooms with a toothbrush.

As disgraceful as is each of these episodes, I end with the recent development I found most distressing, for what it said about the damage to the department’s most valuable asset—the integrity, pride, and motivation of its career staff—that Bondi & Co. have managed inflict on the Department of Justice in less than two months.

Last week, Joshua Stueve resigned his post as senior communications advisor at the DOJ. Stueve is the paradigm of the honorable public servant. He has spent the last 25 years in service to his country, 10 of them on active duty in the US Marines. For the last 15 years he's been a spokesman for agencies within the Department of Defense and Justice.

In his letter of resignation, Stueve notes "the extraordinary expertise, patriotism, selflessness and steadfast commitment to mission of public servants throughout the federal service.”

He emphasizes that his resignation has nothing to do with Trump's victory; on the contrary, he writes that it has been his honor to serve this department under multiple administrations led by both Republicans and Democrats. Until now. All previous administrations “treated career staff with respect and dignity. It is heartbreaking," he writes, " to see that basic decency come to an end.”

Stueve continues, “Simply put, I cannot continue to serve in such a hostile and toxic work environment, one where leadership at the highest levels makes clear we are not welcome or valued, much less trusted to do our jobs."

Simply put, but gut-wrenching. For anyone who has served in the Department of Justice, Stueve’s report shows that the department has been turned upside down, and its most valuable asset—the integrity and dedication of its career staff—is pouring out.

I’ve detailed in past dispatches the toxic arrivals of Trump's hand-picked senior officials for the Department of Justice, beginning with Attorney General Pam Bondi and her 14 day-one directives that were thick with distrust of department attorneys and accusations of weaponization.

Stueve’s resignation letter makes clear that Bondi’s initial fusillade of accusations and disrespect has only continued. Attorneys General of both parties have always held the Department’s 10,000+ attorneys in the highest regard and have made it a priority to defend them against unfair attacks. The new invaders, in stark contrast, are launching attacks from within, with ominous effects on department culture and morale. And we should never forget that the ultimate victims are the American people they signed on to serve.

The traditional independence of the federal prosecutorial function, combined with the Supreme Court’s infamous opinion on Presidential immunity, make citizen scrutiny a challenge. But we can credit and amplify the words and deeds of honorable Department professionals who have given up their jobs rather than violate their oaths—Danielle Sassoon, Hagan Scotten, Denise Cheung, Joshua Stueve. We can keep the heat and light on the serial abuses by Martin and push Senators to reject his nomination, which has yet to go through. And we can repeat, and repeat again, that the accusations of misconduct leveled by the Attorney General on down—the actual constitutional villains—are contemptible lies; and the truth will out.

Reprinted with permission from Talking Feds

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

How Pam Bondi Is Undermining Morale And Principle As Attorney General

How Pam Bondi Is Undermining Morale And Principle As Attorney General

There hasn’t been much scrutiny of Pam Bondi since she became the Attorney General a little less than three weeks ago. She sailed well above the low bar set by Trump’s initial scandal-ridden nominee, Matt Gaetz, but that shouldn’t be much of a distinction. And she seems less flamboyantly unqualified, dangerous, or downright kooky than several of the more controversial nominees that Trump managed to cram through a compliant Senate. Finally, Bondi kept her fingerprints off the Eric Adams scandal, letting acting deputy Attorney General Emil Bove do all the dirty work. That’s not an unusual maneuver for a sitting attorney general.

But it would be a mistake to conclude that she has been a benign presence in her short time on the job. On the contrary, she has issued a series of directives that drip disdain for and unwarranted criticism of department attorneys. They surely have contributed to the miserable morale and sense of being under assault that DOJ career attorneys have reported feeling under this administration.

Bondi issued no fewer than 14 directives on her first day on the job, February 5. The most well-reported one set up a task force to examine the “weaponization” of the DOJ. It bore the subject “Restoring the Integrity and Credibility of the Department of Justice.” The memo began by asserting the need to “restore integrity and credibility with the public.” It provided a single reason why dramatic steps were required: “because, as President Trump pointed out following his second inauguration, ‘[t]he prior administration and allies throughout the country engaged in an unprecedented Third World weaponization of prosecutorial power to upend the democratic process.’”

To anyone who appreciates the mission and sworn duty of Justice Department career attorneys, that is a grave charge. And Bondi continued with it, blithely asserting, “the American people have witnessed the previous administration engage in a systematic campaign against its perceived political opponents.”

Bondi’s memo goes on in the same vein to assert, again without support, “weaponization” by special counsel Jack Smith and his staff, whose search of Mar-A-Lago (which she calls a “raid”) she mistakenly characterizes as “unprecedented.” It then levels a broadside against the department’s cooperation with the lawsuits brought by the New York DA and Attorney General against Trump.

I’ve suggested in the past that generally, the best place to start with analyzing the administration’s derelictions and outrages is to find the lie. Here it is in plain sight – the very lie endlessly proffered by Trump himself, recycled with the sole support being Trump’s own words. In other words, it is precisely as valid and authoritative as Trump’s own naked allegations.

It is critical to insist, again, and again, that the Biden administration did not weaponize prosecutions notwithstanding the repeated false charges from Trump on down. Moreover, we must call out the ways that the Trump administration under Bondi has already begun to do so themselves. And with the confirmation of Kash Patel, Mr. Reprisal himself, at FBI, and Sunday’s announced appointment of podcaster Dan Bongino as Patel’s deputy, weaponization may become the Department’s new stock in trade.

Perhaps the chief value of the already infamous Eric Adams scandal, in which Acting Deputy Attorney General Emil Bove ordered prosecutor after prosecutor to dismiss the case despite its solid basis in the law and the facts, is to exemplify what the charge of “weaponization” or “politically motivated prosecution” that Bondi and her boss throw around so promiscuously really means.

It is a case in which political considerations overrode the facts and the law, which are the necessary and sufficient elements of a valid criminal case. This is how you know whether the prosecutorial power has been used for improper political purposes: if a case is righteous on the facts and the law, it is justified no matter the political prominence of the target; conversely, if it isn’t, a prosecution should never be green-lighted for political reasons. That’s the precise meaning of the watchword of doing justice without fear or favor.

To break it down into categories, a case involving a political official with solid support in the law and facts is righteous; a forced dismissal, as in the Adams case, notwithstanding absence of any issue with the law and facts is politicized; and investigation or prosecution in the absence of adequate legal and factual support is weaponized or politically motivated. That last category—trumped up prosecutions of innocent persons—is the most shameful and corrupt use of prosecutorial power that a Department attorney can be charged with.

That, incidentally, is precisely why Special Counsel Jack Smith ended his report to Merrick Garland by saying, “the Department's view that the Constitution prohibits Mr. Trump's indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution—all of which the Office stands fully behind.” That assertion, if credited, stands as a full rebuttal of the bogus suggestion, which Trump will never drop, that the Department’s prosecutions of Trump were weaponized or politically motivated.

None of this is controversial. In fact, it’s precisely what Bondi testified to in her confirmation hearings. She promised the senators that her decisions wouldn’t be influenced by political considerations, and that the Department of Justice under her stewardship would operate strictly on the basis of the facts and the law.

It's a promise that already has been broken twice in high profile cases on her watch. In the Adams case, Bove’s gun-to-the-head insistence that Danielle Sassoon and a series of other prosecutors dismiss a righteous case was overtly political. The letters from Sassoon and Hagan Scotten, and the successive resignations of five senior attorneys at Main Justice, demonstrated beyond any doubt that the orders were based on improper political considerations and flew in the face of the righteousness—the plain legal and factual basis for the charges—of the case. Thus, as Sassoon put it, Bove’s direction “to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case” was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor.”

None of the various prevarications or finger pointing from Bove has done anything to call this essential point into question.

But even in Bondi’s short time, this is not an isolated aberration. Last Tuesday, Denise Cheung, a 24-year veteran of the US attorney’s office in Washington and the head of the criminal division there, resigned rather than carry out an order from interim US attorney and election denier Ed Martin Jr to launch an investigation into a Biden-era government contract without the required evidentiary predicate. Cheung explained that Martin’s order was unethical and following it would be a violation of her oath and her duty to uphold the Constitution and the law.

Nothing about these episodes is remotely normal for the DOJ, including during periods of transition. The resignations of Cheung, Sassoon, Scotten, and 5 other seasoned career attorneys is the equivalent of a 25-alarm fire at DOJ. And the unlawful orders coming from Department leadership to undertake political prosecutions or dismissals is unheard of and a breathtaking, permanent badge of dishonor. Those are simply facts.

Perhaps somebody reading this is a journalist who covers the department and will be present for Bondi’s press availability. If so, I would urge them to ask the Attorney General to name a single case of a weaponized or political prosecution from the Biden administration. She has access to all the prosecution memos. Is there a single case brought during Garland’s tenure that lacked the necessary support in facts and law? (Legal reversals by courts of appeals are routine for the DOJ and don’t cut it for showing legal inadequacy.) And to really zero in, what is her basis—her actual basis as a lawyer and a prosecutor—for asserting that Jack Smith’s charges against Donald Trump were not based in fact and law?

Bondi’s other memos are similarly sprinkled with pot shots and low blows. In her memo laying out “General Policy Regarding Zealous Advocacy on Behalf of the United States,” Bondi instructs DOJ attorneys that they must vigorously defend presidential policies and actions. She drops a bomb when she lectures that if attorneys refuse to advance good faith arguments “it undermines the constitutional order and deprives the president of the benefit of his lawyers." This description of DOJ attorneys as "the president's lawyers” would come as grotesque news to career attorneys, who fundamentally believe they represent the law and the Constitution, not the president. That’s the job for a Roy Cohn, not the attorneys who have sworn allegiance to the Constitution and federal law, which, not to put too fine a point on it, Trump is unabashed about violating.

In the same day’s harvest there were several Bondi memos that seem principally designed to undo the work of Merrick Garland, repeatedly questioning his integrity in the process. Some are, to say the least, not well thought through. One memo rescinds Garland’s “environmental justice memorandum” which prioritized “enforcing environmental laws in cases affecting overburdened and undeserved communities, including low-income communities, communities of color and tribal and indigenous communities.” Bondi assesses that Garland’s approach, which she assails as an example of climate extremism, was a violation of the “even handed administration of justice.”

Here her attacks appear to be combined with a flagrant ignorance about how criminal prosecution does and should work. It is routine for the department to target high-crime areas and most likely and serious offenders. For example, I did so in a gun-violence-reduction initiative in Pittsburgh, which targeted repeat violent offenders, typically gang members. The presumed robust new environmental enforcement in clean white communities will do nothing to address environmental crime in the country.

Bondi takes the same tack in her memo about reviving the federal death penalty, which she inaccurately says is under moratorium. She states, again without support, that the prior administration’s caution in pursuing the death penalty undermined the will of the people. That’s both tendentious and dubious: barely over half the country favors the death penalty. Worse, she proceeds to identify recent cases as deserving of the death penalty without having undertaken any analysis of them at all. This casual cheerleading in favor of executions based on nothing more than newspaper reporting cannot be squared with Department practice under administrations of both parties and the 8th Amendment dictates of the Supreme Court.

After her broadside against DOJ death penalty practice, Bondi adds a tub-thumping tagline worthy of a political rally: “This shameful era ends today.” It’s illustrative of another class of problems with her memos. They are gauche. Attorneys general don’t write this way. Memos to the field are not the place to deliver political screeds. I have probably read thousands of memos from different attorneys general, and I have never seen a single one with such a tin ear and inappropriate tone as characterize nearly every one of Bondi’s.

But the very worst aspect of the Bondi memos is the scathing disrespectful mistreatment of career DOJ attorneys. I was at the DOJ farewell ceremony for the last administration days before the Trump crowd arrived. The dominant overriding theme, from Merrick Garland on down, was absolute reverence for the career attorneys in the department. Attorneys general of both parties consistently have regarded them as the life blood of the place, and have made it their highest priority to support and defend them. Now enters Pat Bondi, an election denier who refused to concede Trump lost the 2020 election in her confirmation hearing, and showers them with contempt and snide and ignorant allegations on her first day on the job. (Allegations, I might add, that the entire Department knows are exactly backwards.)

Trump has managed to push through a series of nominations of seemingly anti-appointees—people perfectly suited to undermining their new agency’s mission—such as Robert F. Kennedy Jr., Tulsi Gabbard, Kash Patel.

To date, people have not generally put Bondi in that dubious category, but it’s time to reconsider. If an attorney general is supposed to represent the highest ideals of the DOJ to do justice without fear or favor, and a steadfast support for those employees who take that ideal to heart, then Bondi in her first two weeks has staked out a position as the anti-Attorney General. Her willingness to adopt Trump’s lies, insist others do the same, and savage the Department’s best with crass and condescending potshots, portend more terrible times ahead for federal prosecutors around the country.

Reprinted with permission from Talking Feds

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