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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.