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Foul Smell Arises From ICE Killing Of Longtime Houston Resident

Foul Smell Arises From ICE Killing Of Longtime Houston Resident

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

Well, that was pretty fun.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


With Slush Fund, Trump And Blanche Conjured A Metastasizing Scandal

With Slush Fund, Trump And Blanche Conjured A Metastasizing Scandal

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

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

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

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

The scandal is metastasizing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

James Comey

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

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

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

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

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

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

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

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

That’s the case, the entire godforsaken case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.


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

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

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

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

Meet the new boss. Worse than the old boss.

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

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

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

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

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

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

Whose justice might that be?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

Now we know why.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

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

It’s presidential pardons.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Deals like that don’t stay clean.

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

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

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

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

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

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

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

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

The scandal is not the extortion charge.

The scandal is the system that made it entirely predictable.

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

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

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

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

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

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

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

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

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

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

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

None of that is success.

It is metastasis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump gave them a fait accompli.

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

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

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

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

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

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

Reprinted with permission from Talking Feds.

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

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

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

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

That conjectural leap is not a substitute for probable cause.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reprinted with permission from Talking Feds.