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

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

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

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

That conjectural leap is not a substitute for probable cause.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

Lemon Easterwood

Debased Pam Bondi Serves As FACE Of A Performative Prosecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

When Life Gives You Lemons, Act Like Total Lawless Jerks

When Life Gives You Lemons, Act Like Total Lawless Jerks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

Meet the new boss, same as the old boss.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Bovino

After Constitutional Outrages In Minnesota, Congress Must Act Immediately

It’s more than a crime now.

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

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

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

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

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

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

It looks like nothing so much as a mob execution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that’s because Trump is a LLWWULALAD.

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

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

But only where the president is a LLWWULALAD.

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

That pattern is now unfolding in Minnesota.

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

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

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

1. No Cognizable Crime

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

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

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

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

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

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

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

2. Criminalizing Protected Political Speech

The infirmity is not merely statutory. It is constitutional.

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

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

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

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

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

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

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

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

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

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

4. Flagrantly Improper Public Declarations of Guilt

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

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

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

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

5. Corrupt Use of the Grand Jury Process Itself

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

Unprecedented: Prosecutors Resign Over Trump's ICE Shooting Coverup

Unprecedented: Prosecutors Resign Over Trump's ICE Shooting Coverup

The stunning resignations on Monday of four senior career officials from the Criminal Section of the Justice Department’s Civil Rights Division confirm that DOJ has gone profoundly off the rails in its handling of what increasingly appears to be one of the gravest excessive-force cases in decades.

The resignations, an ultimate eloquent gesture, reportedly had multiple causes. The central one was the sidelining of the Criminal Section from the investigation of the January 7 fatal shooting of Renee Nicole Good by Immigration and Customs Enforcement (ICE) agent Jonathan Ross.

In any normal, professionally run Department of Justice—Democratic or Republican—a shooting that looks this serious on its face would trigger a searching civil-rights investigation by the Criminal Section, the Department’s longstanding unit for prosecuting unlawful uses of force. That has been true whether the assailant was a state officer, as in Rodney King, or—more rarely—a federal one, as at Ruby Ridge. (I served in the Department during both and worked on the King case, and I’ll be writing about some of the lessons from that case in coming Substack pieces.)

ICE has steadfastly maintained that the shooting was justified because Ross reasonably believed that Good was attempting to run him over. But multiple bystander videos and visual analyses have seriously undermined that self-serving account. I put the point in that lawyerly, hedged way because, for present purposes, it is more than enough to establish beyond any cavil that this case demands the most thorough investigation the federal government can muster.

That is the very opposite of what happened here.

First, the highest government officials circled the wagons around Ross. Donald Trump and Vice President J.D. Vance defended the agent’s actions and suggested that Good bore responsibility for her own death. Homeland Security Secretary Kristi Noem labeled the incident “domestic terrorism,” a characterization that has been widely questioned. Trump himself made inaccurate claims that Good had “run over” the ICE officer, which video evidence contradicts.

At the same time, leadership of the Civil Rights Division, under Assistant Attorney General Harmeet Dhillon, informed the Criminal Section that it would not be investigating the case at all—a spectacular departure from past practice. Multiple career prosecutors offered to go to the scene but were told not to.

It was like a fire chief watching smoke pour from a burning building and ordering the crew not to respond, even as firefighters volunteered to go in.

The resigning officials, then, were not merely objecting to a particular judgment call. In effect, they were saying that if the Criminal Section does not have jurisdiction over a case like this, its role has been reduced to near irrelevance.

DOJ instead assigned the investigation to the U.S. Attorney’s Office for the District of Minnesota. But that office lacks the expertise, experience, and institutional stature to undertake an inquiry that goes to ICE’s core mission and legitimacy.

Nor is the broader context hard to discern. A serious civil-rights investigation—or worse, a criminal prosecution—would cut directly against the administration’s signature priority: an aggressive, high-visibility immigration enforcement campaign in which forceful tactics are treated as proof of resolve rather than excess. Calling this shooting into question would not merely implicate one agent; it would threaten the legitimacy of a brute-force enforcement regime that is Trump’s pride and joy. And it would come at a moment when the president is reportedly already furious with Attorney General Pam Bondi and senior immigration officials over perceived softness and setbacks.

There is also a more calculating dimension to the assignment. Even if toothless, a federal investigation provides a ready rationale for declining parallel inquiries and resisting cooperation.

That concern is not theoretical. Federal authorities reversed an initial plan for a joint investigation with Minnesota officials, shifting the probe to exclusive FBI control and cutting off the Minnesota Bureau of Criminal Apprehension from evidence and access. State officials—including Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty—have said publicly that this move hamstrung their ability to conduct an independent investigation.

Minnesota responded Monday with a lawsuit against the Department of Homeland Security, ICE, and senior federal officials seeking to block the massive immigration enforcement surge in the Twin Cities. The complaint characterizes the deployment of more than 2,000 armed agents as an “invasion” and alleges unlawful tactics—warrantless stops and arrests in sensitive locations, racial profiling, and unconstitutional conduct that has disrupted daily life and eroded public safety. It further asserts that the campaign bears no genuine connection to its stated goals and instead reflects a retaliatory pattern of federal action aimed at Minnesota because of its political leadership and demographics.

This case is shaping up to be a scandal along the lines of the January 6 pardons and the reprisal prosecutions. Wherever its investigation is housed, it cannot be credible while it remains under the political control of an administration that has already pre-judged the case—publicly, loudly, and at the highest levels.

The feds’ normal response in a case of this gravity would be to assign the Criminal Section to conduct a vigorous, independent investigation, working in cooperation with state authorities and following the facts wherever they lead. The second defensible option would be to step aside in favor of the state, which has its own compelling interest in enforcing criminal law and protecting its citizens. Instead of either option, federal authorities are choosing to hamstring meaningful scrutiny and insulate possibly grave criminal conduct from accountability. That path is unprecedented and indefensible.

Excessive force by officers is not new. What is novel for the United States is the use of federal power afterward to stifle investigation and shield wrongdoing. That turn—from lethal force to enforced impunity—is an abuse of authority and a hallmark of authoritarian governance.

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

Reprinted with permission from Talking Feds.

Universe Of Fantasy: A Tour Of Trump's Alternate Reality Government

Universe Of Fantasy: A Tour Of Trump's Alternate Reality Government

Donald Trump is surely the most prolific and brazen liar ever to occupy the White House. From day one of his first term, when he confabulated wildly about the crowd size at his inauguration, he has fabricated nonsense so promiscuously that people—supporters and antagonists—have just come to assume you can’t trust what he says.

But in the last few weeks, Trump and his administration seem to have broken through the lying speed of light, emerging into a whole new universe of bullshit. From the daily diet of blatant lies, fibs, and fabrications, they’ve taken up occupancy in a stratosphere of crazy, as if arriving through a wormhole from the other side of the universe. They’re now regularly peddling assertions that boggle the mind and leave commentators speechless—provoking a “what planet are you from?” kind of response.

What these claims provoke is less indignation than bewilderment—a sense of “I don’t even know where to begin.” In the last few days, two of the country’s most sure-footed cable hosts basically threw up their hands confronting Administration statements that vaulted over false or even ridiculous to the utterly bizarre.

On CNN, Kaitlan Collins—trying to make sense of yet another sweeping claim about what the Justice Department had or had not “authorized”—responded with exasperation: “None of what they’re saying lines up with the actual record, and I don’t know how else to say it.” (Over the weekend, Collins responded to Trump’s asinine tirade calling her “stupid and nasty” with grace and good humor.)

A day later on MSNBC, Nicolle Wallace offered a similar response as she confronted the latest round of reality-defying explanations from senior officials. “This is just not connected to reality as the rest of us understand it,” she said, before adding, almost incredulously, “I mean… what are we even talking about here?” Her guest Miles Taylor stepped in: “They’re describing events from a universe where facts operate under different rules.”

Consider some of these recent extraterrestrial dispatches that Trump and his senior aides have propounded, each one so unhinged that analysts hardly know where to begin.

• The Halligan Fantasy

The Administration continues to treat Lindsey Halligan as a fully empowered United States Attorney for the Eastern District of Virginia, despite a federal judge’s ruling (that the Administration has yet to appeal) that her appointment is invalid. The DOJ is behaving as though the ruling never happened: they continue to sign her name on indictments, even though the court has said such documents are a legal nullity—no different than if they were signed “Mary Poppins.”

• The Illusory Exculpation of Pete Hegseth

Trump now claims Defense Secretary Pete Hegseth has been “exculpated” for the deadly September 2 boat strikes. Exculpated by whom? There has been no investigation or formal findings, and only the slightest beginning of a closed-door congressional inquiry. Hegseth has miles to go before he is out of the woods for the stain of the killings on the country, which Senator Adam Schiff on Sunday called “unconstitutional” and “morally repugnant.”

How about: And the first step on that path is the release to the public of the already infamous video of the strike that Hegseth claims he didn’t order but quickly adds that he “would have made the same call myself.”

• The Signalgate “Total Exoneration”

Hegseth’s separate claim—that the acting inspector general’s review of the Signalgate fiasco “totally exonerates” him—holds no water anywhere on the planet.

In fact, the IG found Hegseth endangered U.S. service members by transmitting imminent-strike details over an unsecured Signal chat on his personal phone, including information mirroring SECRET/NOFORN data from a CENTCOM briefing. For his part, Hegseth refused to sit for an interview, submitting only a nonresponsive written statement, the core claim of which was: “I took nonspecific general details which I determined, using my sole discretion, were either not classified, or that I could safely declassify, and created an “unclassified summary” of the USCENTCOM strike details to provide to participants of the Signal chat.”

But the IG found the details weren’t “nonspecific” at all—they tracked classified operational information. And although Hegseth claimed he could declassify the material, the IG explicitly said he could not determine that Hegseth ever exercised that authority. It is, in effect, a defense that says: the disclosure was permissible because I believed I had the power to make it permissible. More to the point, even if he had borrowed and waved Trump’s magic Mar-a-Lago declassifying wand, it would have no bearing on the finding—as inculpatory as you can imagine for a sitting Defense Secretary—that he risked putting service members in danger. Far from exonerating him, the explanation restates the problem.

• The Hepatitis-B Reversal

The Administration’s flirtation with the idea that the hepatitis-B vaccine is “not recommended” in newborns contradicts decades of CDC guidance and a more than 90 percent reduction in childhood hepatitis-B. The reconstituted ACIP panel making this move was hand-selected after RFK Jr. removed the prior members. This is medical policy by wormhole: the consensus stays the same, the data stay the same, but the conclusion suddenly flips. Public health experts predict catastrophic results—particularly for poorer newborns—and a resurgence of child-onset hepatitis B.

• The “Morally Distinguishable” Bomber

The Administration’s touting of the arrest of the January 5 bomber, Brian Cole, raises the obvious question: what distinguishes the would-be bomber from the marauders of January 6, whom Trump pardoned on his first day in office? It can’t be the potential for violence: Cole’s bombs didn’t go off, while Trump’s clemency extended to thugs who attacked Capitol officers with stun guns and nerve gas.

Here is the Planet Mongo argument Hegseth offered on Fox News for the distinction—echoed by other Administration officials: “Look, the people who were unfairly targeted have been pardoned. The bomber hasn’t been — and that tells you something.”

Everyone follow that? The difference between the January 6 pardoned marauders and the pipe-bomb suspect is that the pardoned 1000+ were pardoned. That might be a cogent response somewhere, but it isn’t on planet Earth.

And Pam Bondi’s recent answer—or more precisely, her refusal to answer—drove the point home. Asked point-blank how Cole differed from January 6 defendants, she simply ducked the question, pivoting to unrelated talking points. They’re going to need something better as the case proceeds—unless, that is, Trump hews to his otherworldly logic and pardons Cole.

• The Fantasy Economy

On the central promise that likely delivered him a second term—fixing an economy he has instead allowed to wobble and stall—Trump continues to offer the alternate-universe characterization that the economy is “flourishing,” waving away indicators of strain, volatility, and falling household confidence.

• And this just in – the FIFA Peace Prize

Finally, there must be a planet somewhere in which the notoriously corrupt soccer organization FIFA enjoys the moral authority of the Nobel Committee on Earth. Wherever that may be, Trump has proudly received the first-ever peace prize for his “historic leadership.” There is the complication that no committee actually awarded this supposed FIFA Peace Prize. FIFA doesn’t give peace prizes. It doesn’t have a peace-prize committee. It has no mechanism for conferring honors outside the world of soccer. The prize exists entirely because Trump said it did. But such critical logic is so, well, earthbound.

Taken individually, any of these might be chalked up to the familiar Trumpian stew of bluster and improvisation. As an ensemble, they represent something else entirely. This isn’t lying in the usual political sense. It is governing from an alternate reality—one in which legal authority, factual accuracy, and empirical verification are dispensable trifles.

And that is what provokes the shift in reaction among commentators. They are no longer challenging claims as much as expressing bewilderment at the absence of any shared factual universe.

The problem, of course, is that a democracy requires such a universe. Trump has always strained against that baseline, but now he and his Administration increasingly operate in a space where the laws of logic bend and the lines never cross. The rest of us—courts, Congress, journalists, citizens—are left trying to stitch reality back together in a world where the government no longer recognizes it.

The only workable response begins with declining to play by the rules of their distant planet. First, call out the move—not just the mistake. These are not ordinary falsehoods. They are claims wholly untethered from evidence, law, or logic, and the point is to overwhelm, not persuade. Institutions should say plainly when a statement has no factual substrate at all.

Second, refuse to litigate the fabricated premise. Wormhole politics depends on forcing opponents to disprove fantasies—“prove Halligan isn’t authorized,” “prove the survivors weren’t traffickers,” “prove the bomber isn’t morally distinct.” The proper move is to reject the burden-shift and insist that the Administration supply actual evidence before the claim enters serious discourse.

Holding a government to account is work enough without having to chase its claims across the universe to an entirely different planet.

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

Reprinted with permission from Talking Feds.

That 'Seditious' Video By Six Congressional Democrats Is Accurate And Necessary

That 'Seditious' Video By Six Congressional Democrats Is Accurate And Necessary

The crisis exposed by the Trinidad strike is not just what U.S. forces may have done in the water. It’s what the administration did on land.

The short video released last week by six current and former service members now serving in Congress was striking for its restraint. In calm, matter-of-fact tones, the six reminded their fellow service members of a bedrock rule: lawful orders must be obeyed; patently illegal orders must not be. They did not tell anyone to disobey the Commander in Chief. They did not brand any particular directive unlawful. They simply restated what every officer learns early in training: an order that directs the commission of a crime is not merely questionable — it is one a service member has an affirmative duty to refuse.

That principle is woven into the Department of Defense Law of War manual, which specifies that “responsible commanders are required to decline to carry out orders that are contrary to the law of war.” As Sen. Mark Kelly, one of the six and a former Navy combat pilot, put it plainly: “If orders are illegal, not only do they not have to follow them — they are legally required not to follow them.”

Yet for this careful and wholly orthodox reminder, the lawmakers found themselves at the center of a political firestorm. The President denounced their message as “seditious behavior” and declared—in a now-infamous social-media post—that sedition is “punishable by DEATH.” Hegseth amplified the accusation, accusing the lawmakers of endangering military discipline. And the machinery of the national-security state followed suit: Pentagon inquiries were opened, and FBI agents began conducting “knock-and-talk” visits to the members of Congress involved.

The instinct to investigate truth-tellers rather than alleged illegality has marked some of America’s darkest constitutional moments. And it is the through-line of this one.

The video was not simply factually accurate but specifically pertinent in the context of the administration’s recent series of lethal strikes against small vessels in the Caribbean and the Eastern Pacific. Those strikes—now numbering more than twenty and resulting in at least eighty confirmed deaths—appear, based on public reporting, to rest on no clear statutory or constitutional authority.

The boats at issue were not warships. They were small fishing craft—peñeros—sometimes fitted with more powerful engines but otherwise indistinguishable from civilian vessels used throughout the region. As Marty Lederman has documented in a comprehensive analysis, neither the 2001 Authorization to Use Military Force nor any Title 10 operational authority plausibly applies. The designation of a Venezuelan gang as a foreign terrorist organization may trigger sanctions and material-support prohibitions, but it does not create a freestanding authority to kill suspected members on the high seas.

Nor can the administration rely on Executive Order 12333. Every administration since Reagan’s has maintained its prohibition on assassination and its understanding that targeted killing is lawful only in contexts of armed conflict or in truly unavoidable self-defense. Those conditions are plainly absent here, where interdiction and arrest have long been feasible alternatives.

In the most disturbing episode—first revealed by The Washington Post—Secretary of Defense Pete Hegseth allegedly issued a spoken order to “kill all” crew members aboard a suspected smuggling vessel. The initial strike sank the boat. A live drone feed later showed two survivors from the original crew of eleven clinging to the wreckage. According to multiple officials with direct knowledge, the Special Operations commander overseeing the operation then ordered a second strike—expressly to comply with Hegseth’s directive.

The survivors were killed.

The alleged order directly contradicts the Defense Department’s own Law of War Manual, which could not be clearer: “An order to fire upon the shipwrecked would be clearly illegal.” The Manual’s explanation reads as if drafted for this very scenario. Elsewhere, it reinforces the duty of subordinates to resist such commands: “Commanders must decline to carry out orders from a superior that are contrary to the law of war … [and] are bound to obey only lawful orders. An order that is manifestly illegal is void and must not be obeyed.”

That guidance is neither abstract nor academic. It embodies hard-won lessons from My Lai, Abu Ghraib, the CIA black sites, Korea, Vietnam, Iraq, and Afghanistan. In each episode, political appointees or senior leaders pushed aggressive, extralegal theories of force; units in the field internalized those signals; the unlawful conduct that followed fell onto the shoulders of the officers and enlisted personnel who carried it out.

Hegseth has denied ordering the second strike — describing the allegation as “fake news.” No real surprise. In any event, the strike itself, however it originated, fully justifies the Democrats’ video.

Of course, Hegseth’s reputation for veracity is far from solid. During his confirmation hearing, senators confronted him with a pattern of sweeping, false, or later-retracted claims:

  • His assertion that ISIS had been “totally defeated” long before Defense Department assessments said otherwise.
  • His denial that he had “ever advocated for the use of torture,” despite multiple on-air statements lauding waterboarding and “tougher” techniques.
  • His shifting explanations for a negligent-discharge shooting at a veterans’ event.
  • His promotion of debunked claims about migrant caravans and imaginary Antifa training camps.
  • His dramatic accusation that senior military leaders were “lying to the American people” about casualty counts, which he later walked back.

Add to this the administration’s refusal to release basic targeting information—names of those killed, intelligence supporting the strikes, post-strike assessments—and the broad, unsupported claim that “every trafficker we kill is affiliated with a Designated Terrorist Organization.” No evidence has been provided to substantiate that sweeping assertion.

It’s all classically Trumpian: bold claims, confident denials, next to no actual verifiable evidence.

Speaking of which, the whole episode grows darker and more tawdry in the wake of reporting from Reuters that now-Third Circuit Judge Emil Bove, then the number-two official at the Justice Department, had earlier floated the idea that it would be “more efficient” simply to “sink the boats” rather than engage in traditional interdiction. That suggestion, witnesses said, came months before the lethal strikes began.

This is precisely the kind of political pressure—originating not with JAG officers but with senior civilian officials—that military legal doctrine is designed to resist. It’s a copycat version of the post-9/11 dynamic—in which the DOD insisted on, and received, OLC memos justifying waterboarding—a conclusion that legislators on both sides and the country as a whole firmly rejected in the calm of a retrospective look.

Assume for the moment, consistent with the overwhelming view of law-of-war experts, that Hegseth’s alleged “kill all” directive was, on its face, manifestly unlawful. The obligation of the service member could not be clearer. Under the Uniform Code of Military Justice and the Manual for Courts-Martial, the presumption that an order is lawful “does not apply to a patently illegal order.” The Defense Department’s Law of War Manual puts the point even more plainly: “Subordinates are bound to obey only lawful orders. An order that is manifestly illegal is void and must not be obeyed.”

And the courts have said the same for half a century. As the military appellate court held in the Calley case after My Lai, a soldier cannot be punished for refusing an unlawful command. Taken together, the law imposes a single, bright-line duty: a service member may not carry out an order that directs the commission of a crime. The duty to refuse is mandatory. It reflects the premise that military obedience exists within the law, not above it.

The lawmakers’ video reaffirmed this basic point. It did so without rancor, without accusation, and without politics. It simply reminded service members that they are independent moral agents—not automatons—and that the law, not the whim of a civilian appointee, determines the legality of a killing.

Far from undermining morale or discipline, such reminders strengthen them. In order to obey lawful orders without hesitation, troops must know the boundary between lawful and unlawful ones. They must trust that when senior political officials push unlawful directives, the military’s internal legal framework will hold.

Every time the United States has drifted from the “patently illegal order” doctrine, the costs have been enormous—borne disproportionately by the men and women in uniform. The stain falls not on the policymakers but on the service members who acted on their cues. The doctrine exists to prevent that cycle: to stop unlawful political directives from metastasizing into operational reality and to protect the legitimacy of American force.

Reminding service members of that line was not only appropriate. It served the service members’ own best interests, and the country’s.

EDITOR’S NOTE:
This is the first in a two-part series examining the legal and constitutional issues raised by the administration’s lethal boat strikes in the Caribbean—and its escalating efforts to investigate six Members of Congress who accurately restated the military’s own rules for dealing with patently illegal orders. Part One explains why the lawmakers’ message is legally sound, and the emerging evidence that the strike was a war crime. Part Two turns to the administration’s retaliatory response and situates it in the long American pattern of overreach in moments of perceived crisis.

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

Reprinted with permission from Talking Feds.


Lindsey Halligan

Comey Prosecution Appears Doomed After Federal Judge Eviscerates Halligan's Conduct

Lindsey Halligan has had some very bad days since Donald Trump attempted to shoehorn her into the position of United States Attorney for the Eastern District of Virginia with marching orders to bring him the scalps of Jim Comey and Tish James. But yesterday was her worst day, and it points to far worse ones still to come.

The cause of her miserable Monday was a meticulous and blistering memorandum opinion from Magistrate Judge William Fitzpatrick in United States v. Comey. The 24-page decision eviscerated her and the entire prosecution.

Fitzpatrick’s opinion lays out a sequence of investigative, procedural, and constitutional failures so fundamental that they threaten the viability of the indictment itself. The judge details a cascade of basic yet grave errors by a U.S. Attorney and a Department of Justice that have veered miles off the rails.

The catalog is long, and it culminates in a finding that Halligan misinstructed the grand jury on points of law so elementary that any first-year law student in a prosecutorial-tactics class would know to avoid them. That same student, it bears noting, would have had more relevant experience than Halligan, who was plunked into the highest job in the office and then proceeded to appear solo before the grand jury despite having had exactly zero experience as a federal prosecutor.

Combine that preposterous assignment with the political imperative to deliver indictments for the Maximum Leader in cases that were themselves threadbare, and you had the perfect setup for overreach and blunder in the grand jury room. Unsurprisingly, that is precisely the trap Halligan walked into. It is hard to see her professional reputation emerging intact.

The opinion traces the misconduct back to Trump 1.0 and the 2019–20 “Arctic Haze” investigation. FBI agents obtained warrants to search devices and email accounts belonging to Columbia Law Professor Daniel Richman, James Comey’s longtime attorney and confidant.

Richman’s role as Comey’s lawyer should have set off immediate alarm bells, because of the extreme risk to a prosecution of viewing, much less using, documents covered by the attorney-client privilege. That is why as a general rule, no member of an investigative or prosecutorial team may review attorney-client privileged material; that responsibility lies with a separate “taint” team of uninvolved attorneys and agents.

But Fitzpatrick found that the agents charged with the initial review went far beyond the warrant’s limits. Worse, they held onto that material long after the investigation had closed and failed to conduct any meaningful privilege review despite knowing Richman represented multiple clients, including Comey. Most remarkably, Comey—the privilege holder himself—was never included in the screening process. And notwithstanding a court order to seal and refrain from reviewing nonresponsive material, the government effectively treated the entire trove as fair game for rummaging—a practice the Fourth Amendment was designed to prevent.

That was the landscape when Halligan was rushed into service, after the previous nominee, Erik Siebert, told DOJ leadership that the case could not be brought under DOJ guidelines. That assessment, implicating a core duty for any federal prosecutor, amounted to a fireable offense in Pam Bondi’s Justice Department.

From there, as Fitzpatrick documents, things descended into chaos. Facing an imminent statute-of-limitations deadline on a newly imagined charge, the government went back to the Richman materials without seeking any judicial authorization. Fitzpatrick understatedly called the maneuver “highly unusual.” A new warrant would have required the government to define a relevant timeframe, establish probable cause for the new charges, and—critically—implement protections for privileged material. None of that occurred.

The next misstep was yet more jaw-dropping. The FBI agent assigned to search the extracted Richman materials was expressly told to look for communications between Richman and Comey—communications that were, by definition, presumptively privileged. He found them, printed them, and handed them to another agent, who recognized their privileged nature. Yet that recognition did not trigger a taint protocol, a recusal, or even a pause. Instead, Agent-3, who had been exposed to what Fitzpatrick describes as at least a “limited overview” of privileged content, went on to testify as the sole witness before the grand jury. Every word of his testimony may have rested on tainted material.

Then came Halligan’s performance before the grand jury. Fitzpatrick identified two separate statements she made that were “fundamental misstatements of the law that could compromise the integrity of the grand jury process.”

The statements themselves are redacted, but Fitzpatrick describes their contours. In the first she suggested to the grand jury that Comey might not have a Fifth Amendment right not to testify at trial—or that, at a minimum, the trial jury would be instructed not to draw any inference from his silence. It is hard to imagine a more basic or consequential legal error.

And she was not done. Halligan also told the grand jury it could rely on information not presented to it when determining probable cause and assured the jurors that the government had more—and perhaps better—evidence elsewhere.

It is difficult to imagine a prosecutor in the pre-Bondi DOJ who could have committed errors this basic and prejudicial and remained employed—or, at the very least, not been shunted off to an obscure corner where further harm was impossible. But in this DOJ, Halligan’s amateurism, combined with her anything-it-takes approach to serving Trump, is her most prominent qualification.

Things only deteriorated from there. The grand jury initially rejected Count One of the proposed charges—an unusual event. The rejection so unsettled Halligan that she botched the presentation of the returned indictment to the court. This has prompted sharp questioning from both Fitzpatrick and Judge Currie, who is overseeing a separate motion arguing that Halligan’s appointment was unlawful and ineffective.

Halligan has submitted a declaration swearing she had no contact with the grand jury after deliberations began. Fitzpatrick, reviewing the timeline, plainly does not buy it. His conclusion is stark: either Halligan is “mistaken” about when she learned the grand jurors had rejected Count One, or “the Court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury.” Those are two astonishingly bad options for Halligan.

By the end of the opinion, Fitzpatrick lists no fewer than eleven grounds supporting the defense’s request for disclosure of grand jury materials. They include possible Fourth Amendment violations; willful or reckless misconduct by investigators; mishandling of privileged documents; tainted testimony; constitutional misstatements; and profound irregularities in the indictment’s return. The cumulative impact is a judicial finding that Comey has shown a rare “particularized and factually based” basis to challenge the indictment’s validity—the exact showing Rule 6(e) requires. Findings like this are extremely uncommon.

For Halligan, the opinion marks a moment of extraordinary vulnerability. Even before it, she faced serious legal and ethical concerns: doubts about the legality of her appointment; sanctions in prior litigation; a reported unwillingness to follow DOJ protocols for politically sensitive investigations; and, above all, her willingness to sign on to reprisal prosecutions against Trump’s perceived enemies in defiance of everything DOJ once stood for.

None of this should shock us, or, for that matter, Halligan. She accepted the role of pretend prosecutor, tasked with bringing plainly illegitimate cases on Trump’s say-so. Now the case has metastasized, and it is far too late to turn back. Trump may well shield her from criminal liability with a pardon, but he cannot protect her professional reputation, which is irretrievably wrecked, or spare her from a bar discipline process, which is already underway.

Most importantly, the case Halligan volunteered for—which I have called “the single most shameful act in the Department of Justice’s history”—now appears to be in a death spiral. The only remaining question is which court and which legal tool will finish it off. And when that happens, the fallout will land squarely on Lindsey Halligan.

When ICE Lawlessly Roughs Up --And Seizes -- Innocent American Citizens

When ICE Lawlessly Roughs Up --And Seizes -- Innocent American Citizens

In a different America, with robust constitutional protections, a new report from ProPublica would have been front-page news for a week. The report documents “more than 170” cases of American citizens detained by immigration agents during immigration sweeps. But the implications of the report extend far beyond the accounts of the mistreatment of some dozens of Americans. They point to an agency that has slipped the leash of the Fourth Amendment and a government willing to tolerate, even defend, lawless force against its own people.

The report is a grim tour through ICE’s daily operations. It puts the lie to the administration’s oft-repeated line—most recently from the DHS spokesperson—that “we don’t arrest U.S. citizens for immigration enforcement.” The facts on the ground tell another story. Among the incidents ProPublica chronicles: masked agents pointing a gun at, pepper-spraying, and punching a young man whose only offense was filming them during a raid; a 79-year-old car wash owner, still recovering from heart surgery, tackled and pinned with knees to his neck until his ribs broke; and a woman grabbed on her way to work, held for more than two days without contact with the outside world.

The report shows that many citizens were detained for days without access to a lawyer. It documents cases of citizens who clearly asserted their status, including displaying official ID, yet were ignored by the agents. It also notes that the Administration doesn’t even track arrests of citizens in immigration enforcement actions, and it lacks both method and concern in straightening out its rogue forces.

Even people who instinctively think of immigrants as “other” can appreciate the nightmare of being detained by your own government for no reason at all. These are not edge cases. They reveal the modus operandi of an agency that has ceased to care about constitutional barriers governing stops, arrests, and the degree of force. And when members of Congress call for an investigation into the abusive treatment of citizens, the administration hasn’t even deigned to respond.

The report documents two categories of concern. As ProPublica notes, about 130 of the total number were arrested for allegedly assaulting officers. Many of these allegedly were overblown: ProPublica notes that they produced a “handful” of guilty pleas to misdemeanors. Moreover, at least 50 of those cases were tossed, or charges were never filed. So they give rise to questions about whether ICE is abusing its power to arrest law-abiding protesters, as in the case of the man who was pepper sprayed for the “crime” of videoing agents. There have been a series of reports of such arrests, basically to show rowdy protesters who’s boss. Protesters can be raucous; but raucousness is not a crime.

It is the other category of detained Americans, at least 50, that presents a graver indictment of ICE. Consider that nothing sets apart these relatively few American victims of ICE from the tens of thousands of people the agents scrutinize. Nor do the agents know their nationality when they confront them. So what we’re seeing in the ProPublica report is very likely ICE’s general M.O.

And a series of lawsuits on behalf of non-citizens alleges exactly that. As an attorney for citizen plaintiffs put it, “Any one of us could be next.”

The report lends a poignant coda to the recent decision of the Supreme Court, which gave this same agency the benefit of the doubt. In a decision allowing ICE to stop people based on skin color, language, and type of work sought, Justice Brett Kavanaugh, presumably parroting the line supplied by the Administration, assured the country that the system is self-correcting: “If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go.”

Except they don’t. In fact, the report strongly suggests that they typically don’t even try to find out before jumping in and treating innocent persons like dangerous criminals.

Every week brings new videos of federal agents ignoring, detaining, tackling, and pepper-spraying their prey—deploying force in situations where even local police, bound by stricter accountability, would hesitate. The pattern isn’t a string of mistakes; it’s a culture of impunity. Watching Gregory Bovino, ICE’s Chicago field chief, swagger into Judge Sara Ellis’s courtroom last week like Jack Nicholson in A Few Good Men only confirmed the point.

When agents encounter strangers, the Fourth Amendment imposes three core limitations:

  1. If, and only if, agents have particularized suspicion that a person may be guilty of a crime, they can stop the person (make a “Terry stop”) and pose a brief series of questions to dispel or confirm their suspicions. This is the basic dividing line that Tom Homan and others in the administration say is all the agents are doing in nearly every case.
  2. If, and only if, agents have developed probable cause that a person is guilty of a crime, they can arrest them—restrain their physical movements. That includes, of course, Americans or anyone else who assaults law enforcement. Many of the arrests in the ProPublica report were on charges of assault, though a large subset of those were later dropped.
  3. At all times, including during arrests, agents may not employ force that is unreasonable under the circumstances.

These three guideposts mark the difference between a democracy and a police state. ICE agents are methodically mowing down those guardrails.

The police-state stories above—and especially the 50-plus other arrests for supposed immigration violations—suggest multiple constitutional violations by ICE. Lacking particularized suspicion of an immigration offense, ICE agents were prohibited from even a brief detention. Their actions plainly constitute arrests without probable cause, and in many cases they proceeded to apply patently unreasonable force. We’ve seen similar arrests and unreasonable force wherever ICE has operated.

Once, ICE agents operated in a low-key manner, dressing in street clothes to make calm arrests of previously identified immigration violators. The Administration has now transformed that model into a police-state operation, complete with masked agents in military fatigues ransacking communities that want nothing to do with them and see them as an occupying force.

The abuses in the ProPublica report appear to be widespread and systematic. It’s been a core reason that a series of courts—from Chicago to Portland to Los Angeles—have come down hard on the agency. Judge Sara Ellis in Chicago found that ICE agents repeatedly violated reporters’ and activists’ Fourth Amendment rights. She refused the government’s request to limit relief to one immigration facility, concluding that the violations were widespread. “If I felt secure that this was only happening in Broadview,” Ellis said, “I’d be happy to limit it, but I don’t believe that is the case.”

Similar rulings have emerged from Portland and Los Angeles. But the Supreme Court’s indulgence has given ICE the moral cover to continue. And as often happens with bureaucratic impunity, violence has trickled down from the executive branch’s rhetoric.

What the ProPublica investigation reveals is not simply a rogue agency but a government willing to tolerate—and at times encourage—lawlessness in its name. In community after community, ICE has created zones of fear where both citizens and non-citizens tread carefully, knowing that a routine errand or encounter could end in detention.

The same authoritarian reflex that animates the president’s contempt for judges, journalists, and military personnel has now taken hold of street-level enforcement, where ordinary Americans are discovering that their citizenship is no shield against state violence.

The lesson of abusive, unconstitutional treatment of American citizens is thus not limited to immigration. It is a broader warning about the corrosion of constitutional culture. A government that flouts the Fourth Amendment and then lies about it to courts and the people has already crossed a moral and legal frontier. It likely falls, once again, to the American people to fight back before the distinction between lawful enforcement and lawless brute force is blurred beyond recognition.

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

Reprinted with permission from Talking Feds.

This Is Bondi Justice: Coddle The Terrorist And Punish The Prosecutors

This Is Bondi Justice: Coddle The Terrorist And Punish The Prosecutors

By now, you may have heard of the latest Orwellian move by the Department of Justice. Two federal prosecutors have been put on administrative leave for the great sin of mentioning in a sentencing memo a defendant’s participation in the January 6 insurrection attempt.

It’s Orwell mixed with Macbeth, really, because it encompasses the paranoia and descent into post-crime madness of the Thane of Cawdor.

Let’s start with the defendant in question, Taylor Taranto, and his series of violent and pernicious crimes, apart from his participation in January 6, where he breached the Capitol building. After returning home to Washington state, he spread conspiracy theories about the attack. In 2023, Taranto staged a hoax by live-streaming that he had outfitted his car with a detonator and he was going to blow it up at the National Institute of Standards and Technology.

The next day, he drove to a residential neighborhood in Washington, D.C., while live-streaming himself making threats, including suggesting he would detonate a car bomb. Around the same time, Trump published the purported address of Barack Obama on his social media platform (we should pause a moment to try to take that in—as a presidential candidate, Trump published for his MAGA hordes a former President’s address), and Taranto read and reposted it.

He then drove through Obama’s neighborhood, live-streaming that he was searching for tunnels that would let him get to the former President. The Secret Service showed up and he fled, leaving behind a van full of illegal weapons: a CZ Scorpion, a pistol, and hundreds of rounds of ammunition.

There’s more, but you get the idea. This guy is more than a garden-variety insurrectionist, if there is such a thing. He is, in fact, a terrorist, looking to intimidate citizens to further his far-right political agenda.

After unsuccessfully arguing that his other crimes should be covered by Trump’s pardon, Taranto went to a bench trial (i.e, the judge, not a jury, was factfinder) before Carl Nichols, a Trump appointee, who convicted him of six different crimes.

That set up the offending sentencing memo, which in its 14 pages included the brief factual recitations about his participation in the January 6th riot and Trump’s Truth Social posting, and Taranto’s reposting of Obama’s address. It immediately attracted the attention and censure of some among the dozens or hundreds of Trump acolytes who now control the DOJ. Within 24 hours, the prosecutors who had drafted the initial sentencing memorandum found themselves on administrative leave while a new pair of prosecutors filed a sanitized document scrubbing all mention of January 6 and Trump’s publication of Obama’s name.

It’s not as if Judge Nichols isn’t already aware of Taranto’s conduct. He also handled the January 6th charges, which were effectively consolidated with his skein of other criminal conduct. The administration’s lookout, rather, was for the public, whom Trump and his administration continually have tried to hoodwink into believing January 6 was a garden party. The spare but accurate description in Taranto’s sentencing memo slightly undercuts that Orwellian program.

It was, moreover, completely appropriate material to point out in a sentencing memorandum. A court at sentencing is charged with taking into account all the defendant’s conduct, including relevant criminal charges for which a defendant is acquitted. That Trump issued his horrendous blanket pardon does not change the pertinence of Taranto’s behavior, and it was the prosecutor’s duty to bring it to the attention of the sentencing court.

Many other commentators have emphasized the obvious here, which is the cruelty and malice of punishing DOJ personnel for doing their jobs. It is a variation on the theme of the discharge of virtually every agent and prosecutor who worked on the January 6 cases, which, as history surely will record, were 100% righteous.

I join all those commentators in their disgust and sympathy for the blameless prosecutors. But I want to add a note detailing just how wicked and calculating the Department has been in this episode.

DOJ prosecutors are subject to a supervisory chain, which reviews important filings such as the sentencing memorandum in the Taranto case. It is up to the Bondi crowd to determine who is in that chain and what their responsibilities are. If they want to apply a ridiculously fine sieve to any mention of January 6 events coming out of the DOJ – even mentions that are plainly brief, pertinent, and factual – they need only to charge prosecutors to run documents by trained censors who can nip out any mentions of material they deem offensive.

In that event, the prosecutors here would’ve submitted the memo to the powers that be, and it would’ve come back to them with red-lined directions to eliminate the offending material. Instead, they have instituted a regime where blameless prosecutors go ahead with their best products, already no doubt influenced by concerns of not offending the new tyrannical bosses. Then, if they cross a line they couldn’t previously have seen, the hammer comes down.

This punitive culture spreads terror within the DOJ. Every prosecutor who still has a job is now watching their back, combing through submissions with a fine-tooth comb to avoid running afoul of the administration’s whims. Mentioning January 6th? Risk administrative leave. Citing Trump’s role in endangering public officials? Same consequence. It seems clear they wanted to set an example—to instill fear throughout the Department, control the narrative, and send a message that truth-telling about January 6th is punishable.

In short, the DOJ’s corruption now runs the gamut: investigating and prosecuting political enemies, while also disciplining prosecutors simply for stating what happened before our eyes. It’s Orwellian—truth itself is treated as a crime, but that’s just for starters. Far more than bureaucratic overreach, it’s another direct assault on the integrity of the justice system and the principles of accountability that are crucial to the health of a democracy. The episode, in fact, demonstrates why the republic is gravely ill.

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

Reprinted with permission from Talking Feds.

An Existential Moment Of Truth Arrives For The Supreme Court

An Existential Moment Of Truth Arrives For The Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s pure Orwell: truth is fiction.

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

Letitia James

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

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

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

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

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

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

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

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

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

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

Every single one.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Framers’ Warning

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

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

That is the terrain where the country now lives.

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.