While Bondi’s ouster is good news, there is no reason to expect that things will dramatically improve at the Justice Department. Any replacement Trump selects undoubtedly will be equally willing to debase the Department by operating it as a political wing of Trump’s White House. Although Bondi’s departure is cause for celebration, the battle to protect the justice system from the Trump administration is far from over.

Former Attorney General Pam Bondi (Chip Somodevilla/Getty images)

Bondi’s Tragic Track Record

In Bondi, Trump thought he had found the Attorney General he always wanted. During his first term, his Attorneys General and other senior Justice Department officials still had some respect for the institution, its mission, and its political independence. They often pushed back against Trump’s worst impulses and failed to follow his most extreme commands.

Trump didn’t make that mistake in his second term. From Bondi on down, he filled the Justice Department with loyalists willing to carry out his corrupt agenda. As Attorney General, Bondi abandoned the tradition of DOJ independence from the White House. She did her best to use the power of the justice system to further Trump’s political goals, punish his enemies, and reward his friends. Even Bill Barr, Trump’s first-term Attorney General whose misdeeds included misleading the public about the Mueller report and personally intervening to seek a more lenient sentence for Trump crony Roger Stone, was a virtual paragon of justice by comparison.

Some have argued that under Bondi the Justice Department became Trump’s personal law firm, but that’s too generous. A law firm typically would strive to obey court orders, follow the law, behave ethically, and be candid with judges. Bondi’s DOJ did none of that.

But Bondi’s best efforts to please her boss, including her nauseating, sycophantic performances lavishly praising Trump during Cabinet meetings, were not enough. Reportedly dissatisfied with her handling of the Epstein files and her failure to be more aggressive in prosecuting his enemies, Trump fired her last week.

The record of damage and scandal that Bondi leaves behind is truly staggering. Here are just some highlights:

• In one of the most serious abuses of her power, Bondi sought to follow Trump’s commands to use the criminal justice system as a weapon against his political enemies. Her DOJ brought deeply flawed criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, which were promptly thrown out of court. It opened a criminal investigation of Federal Reserve Chairman Jerome Powell, which a federal judge found was done for the improper purpose of influencing the Fed to reduce interest rates. It tried to indict six Members of Congress for making a video correctly reminding members of the military that they should not follow unlawful orders (a message that may be increasingly relevant in the coming days); a grand jury rejected the case. Investigations against others, such as California Senator Adam Schiff, reportedly are still pending.

  Although Bondi did her best to prosecute Trump’s political foes, she failed miserably as the safeguards built into our justice system thwarted her efforts. Her willingness to pursue such cases was a gross abuse of her position and showed her disdain for the rule of law in this country. Authoritarian leaders use the criminal justice system to punish their opponents. We don’t do that here – but Bondi was happy to try.

• Bondi botched the handling of the Epstein files at every step of the process. After claiming that a list of Epstein’s clients was on her desk ready to be revealed, she later backtracked and said there was nothing to disclose. When Congress passed a law mandating that the files be released, her DOJ violated the law, missed deadlines, and dragged its heels. It released documents that identified Epstein’s victims while redacting names of the powerful men, including Trump, who associated with Epstein. Thousands of files, some of which may implicate Trump, still have not been released. Bondi’s lawlessness and incompetence guaranteed that this story stayed in the headlines for months and is not going away any time soon.

• Bondi caused a massive loss of legal talent and experience at the Justice Department. She appeased Trump’s desire for vengeance by wrongfully purging DOJ and the FBI of anyone who worked on his prosecutions. She gutted entire units such as the Civil Rights Division and Public Integrity Section, leaving them understaffed and signaling that protecting civil rights and pursuing public corruption are not a priority of this administration. Thousands of experienced prosecutors and agents have resigned rather than work for her. This brain drain is a huge loss for the country that will persist long after Trump is gone; expertise and institutional knowledge built up over decades cannot easily be replaced.

• Prosecutors in Bondi’s DOJ have repeatedly been called out by federal judges for misleading or lying to the courts and violating court orders, and have even been threatened with contempt. This has caused many judges to abandon the “presumption of regularity” that the government traditionally enjoyed – the judicial doctrine that led courts to assume, absent clear evidence to the contrary, that executive officials have properly discharged their duties and are being candid with the courts. That presumption, carefully curated over decades by officials acting in good faith who understood their obligations, has been shredded in just a year. The courts no longer trust the Justice Department. How long will it take to reclaim that trust in the post-Trump era?

• Bondi’s Justice Department has failed adequately to investigate the shootings by Homeland Security agents of Minneapolis protestors Renee Good and Alex Pretti. Abandoning standard procedure, DOJ declined to have expert prosecutors in the Civil Rights Division investigate the shootings. Rather than cooperating with state officials, the federal government has stonewalled Minnesota to prevent it from conducting its own criminal investigations. Recently the state was forced to take the unusual step of suing the federal government to obtain access to the evidence in the shootings.

• DOJ’s slavish support of Trump’s immigration policies has led it to dramatically overcharge anyone who dared to object, such as the “Subway Sandwich” guy charged with an eight-year felony for throwing a footlong at a federal agent. These prosecutions have largely failed as grand juries and trial juries have rejected the charges, resulting in an embarrassing string of defeats for the government.

• Bondi’s DOJ shut down more than 23,000 criminal investigations into cases involving terrorism, white collar crime, drugs, and other offenses, in order to shift resources to pursue immigration cases. For an administration that claims to be “tough on crime,” this is a remarkable track record of walking away from serious criminal investigations. For white collar criminals, a primary focus of this blog, life under Bondi’s DOJ has been good.

• Bondi’s DOJ has participated in Trump’s corrupt abuse of the pardon power, which he routinely uses to reward political allies and fellow white collar criminals. The traditional process for reviewing requests for clemency has been abandoned. An entire industry has sprung up where wealthy criminals hire lobbyists and make hefty political donations to Trump or his allies in pursuit of a pardon.

• Bondi’s DOJ has also rewarded Trump’s friends and allies by failing to pursue legitimate investigations. For example, before Trump was inaugurated, “border czar” Tom Homan was under federal investigation for allegedly accepting $50,000 in cash in a fast-food bag in exchange for a promise to help the donor obtain federal contracts once he was in the administration. Once Trump and Bondi took office, that investigation was quietly dropped. We still don’t know what happened to the money.

• Bondi gave clownish, combative, and offensive performances while testifying on Capitol Hill. She came to hearings armed with lists of insults she then hurled at Members of Congress as if she were on a playground. She failed to answer questions and generally treated a co-equal branch of government with disrespect and disdain. In perhaps the most egregious example, at a recent hearing she refused to acknowledge the Epstein survivors standing right behind her while shouting that what the public should really be focusing on is that the Dow was above 50,000. Her embarrassing performances, unworthy of the nation’s top legal officer, were clearly intended to impress an audience of one. Apparently they weren’t enough.

I could go on. The bottom line is that Bondi was a terrible Attorney General who did enormous damage to the country and to the Justice Department. She leaves with the reputation and integrity of the Department in tatters. It’s been terrible to watch. It’s true she was simply trying to follow the corrupt commands of the president who appointed her. But the country has a right to expect more of the person who occupies the high office that she held and abused.

Don’t let the door hit you on the way out, Pam.

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What’s Next for the Justice Department

Although Bondi’s departure is good news, there is probably little reason to expect that things will improve at the Justice Department under her replacement. Indeed, things could get even worse if someone more competent than Bondi but with the same corrupt goals takes her place.

For now, Deputy Attorney General Todd Blanche has been named the acting Attorney General. Blanche is one of Trump’s former personal criminal defense attorneys and previously was an Assistant U.S. Attorney in New York.

Some had hoped that Blanche might be a moderating influence in Trump’s DOJ and would retain some respect for the institution. But he has compiled a track record of his own and shown himself to be simply another Trump loyalist. For example:

• Blanche recently bragged about “cleaning house” at DOJ and the FBI by firing hundreds of prosecutors and agents who had been involved in the Trump prosecutions. In other words, he’s proud that DOJ and the FBI furthered Trump’s desire for retribution by forcing out career professionals for simply doing their jobs.

• Last November Blanche was widely criticized for asserting that the Trump administration is at “war” with “rogue, activist judges” — generally defined as any judge who has the temerity to disagree with the Trump administration.

• Blanche conducted a controversial interview with Epstein associate Ghislaine Maxwell, during which she said (what a surprise) she never saw Trump do anything wrong. Blanche spoke to Maxwell alone, which is highly unusual. A few days after that friendly interview Maxwell, who is serving a twenty-year sentence for child sex trafficking, was transferred to a minimum security prison, despite the fact that sex offenders typically do not qualify for such facilities. Perhaps even Trump realizes that pardoning Maxwell would be a disaster, but it certainly appears she is being rewarded for saying the right thing - or for keeping her mouth shut.

In addition, of course, Blanche was Bondi’s second-in-command and is tainted by many of the same scandals that marked her tenure. So no, I don’t expect things to get a lot better under his leadership.

Given the difficulty Trump has getting his nominees named and approved, Blanche could be in charge for some time. There are reports that Trump intends to nominate Lee Zeldin, the current director of the EPA, to permanently fill the position, but that is not yet confirmed.

Zeldin is a Trump loyalist but less of a known quantity. He has no prosecution experience. But as I mentioned above, unfortunately there’s little reason to hope that anyone Trump appoints will be a substantial improvement over Bondi. The fish rots from the head down.

For today, we can celebrate that a truly bad person no longer holds one of the most powerful positions in the federal government.

Tomorrow, the resistance goes on.

Grand juries are given a great deal of leeway to conduct their investigations and it’s rare for a judge to reject their subpoenas. But for Pirro, this is just the latest in a long string of failures, any one of which would have been considered remarkable in any prior administration. Pirro has been doing her best to abuse the power of her office to punish Trump’s enemies and pursue his political agenda. Fortunately, she’s finding that those pesky guardrails built into our criminal justice system are doing an effective job of stopping her.

Jeanine Pirro at press conference following Boasberg’s decision

The Powell Investigation

As Boasberg noted, monetary policy creates a tension between what might help a president politically and what would be in the best long-term interests of the country. A cut in interest rates can lead to a short-term economic boom, benefiting the president in power. But that same cut could lead to inflation that hurts the overall economy but doesn’t show up until later – after the next election, for example.

To shield the economy from such politically-motivated manipulations, Congress created the Federal Reserve to set target interest rates for the country and manage inflation. The Fed is independent and members of its Board of Governors may be removed only for cause. As a result, the president and his administration have no direct role in setting interest rates.

Trump has been raging against Jerome Powell and the Fed for years. He has repeatedly attacked and insulted Powell and berated him and the Fed for not lowering interest rates. Trump has said he wants Powell “gone” and has threatened to fire him, even though he does not have that authority. (A number of Trump’s attacks are collected in Boasberg’s opinion.)

Despite Trump’s repeated demands and attacks, the Fed and Powell have held firm in pursuing the interest rate policy they believe is in the best interests of the overall economy. So the Trump administration decided to criminally investigate Powell to amp up the pressure. Last July William Pulte, the Director of the Federal Housing Finance Agency, posted on X that Congress should investigate Powell over his Congressional testimony about renovations of some Federal Reserve buildings that have been going on for several years and have faced significant cost overruns. Pulte noted that any misconduct could give Trump a basis to remove Powell for cause.

(Pulte, as the head of the FHFA, has no official role in criminal prosecutions. But he’s a Trump loyalist who has developed a specialty in conjuring up bogus criminal allegations against Trump’s opponents, including claims of “mortgage fraud” by Senator Adam Schiff, New York Attorney General Letitia James, and Fed Governor Lisa Cook. He is now under investigation for allegedly abusing the powers of his office by investigating and making such criminal referrals.)

Trump quickly shared Pulte’s allegations on social media. The White House press secretary announced the administration was looking into Powell’s testimony. Shortly thereafter, Pirro’s office opened a grand jury investigation of Powell and issued two subpoenas to the Fed for documents related to the renovations and Powell’s testimony.

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The Motion to Quash

Rather than turn over the subpoenaed documents, the Fed filed a motion in federal district court to quash, or throw out, the subpoenas. In D.C. such motions related to grand jury investigations are automatically assigned to the Chief Judge.

Federal grand juries are allowed to paint with a very broad brush. There is no legal threshold (such as probable cause) that must be met before a prosecutor may begin a grand jury investigation. As the Supreme Court has held, a grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”

Given this standard, it’s quite rare for a party to successfully challenge a grand jury subpoena – at least in an investigation where prosecutors are acting in good faith. But although the power to investigate is broad, the power to issue any given grand jury subpoena is not unlimited. Under the federal rules a subpoena may be challenged if compliance would be “unreasonable or oppressive.”

As Boasberg noted, that standard may be met if a court finds that the “sole or dominant” purpose of a subpoena is improper. An improper purpose, in turn, could include using a subpoena to conduct a baseless “fishing expedition,” to maliciously target or harass an individual, to punish or intimidate a political opponent, or to pressure an independent agency to bend to the president’s will.

Boasberg found that essentially all of these improper purposes were behind these subpoenas. Tracing the history of Trump’s attacks on Powell and the initiation of this investigation, he concluded: “A mountain of evidence suggests that the dominant purpose [of the subpoenas] is to harass Powell to pressure him to lower rates.”

The Chief Judge went on:

In sum, the President spent years essentially asking if no one will rid him of this troublesome Fed Chair. He then suggested a specific line of investigation into him, which had been proposed by a political appointee with no role in law enforcement, who hinted that it could be a way to remove Powell. The President’s appointed prosecutor promptly complied. Those facts strongly imply that this investigation was launched for an improper purpose, as were the resulting subpoenas.

On the other side of the ledger, Boasberg noted that the government had offered virtually no legitimate justification for the subpoenas or evidence that the investigation was being conducted in good faith. The government said that the significant cost overruns raised the “specter of fraud.” But Boasberg noted that cost overruns are common in a multi-year project and that the Fed’s independent Inspector General had been monitoring the renovations and raised no concerns.

As for Powell’s testimony, the Government claimed it “contained possible discrepancies” and was “possibly problematic” (talk about hedging!) but provided no details. The judge also noted that most members of the Committee before which Powell testified, including the Republican Chairman and members of both parties, have said publicly they don’t think Powell did anything wrong.

Boasberg also noted he had offered the government the opportunity to submit evidence ex parte (only to the judge) in support of the subpoenas, in case it did not want to show all its cards for legitimate investigative reasons. Given that opportunity, he said, the government failed to provide any information. “The Court is thus left with no credible reason,” Boasberg wrote, “to think that the Government is investigating suspicious facts as opposed to targeting a disfavored official.”

The judge concluded:

Searching for any reason to suspect that Powell might have lied to Congress, the only one the Court can descry is that he testified at a hearing. The Government might as well investigate him for mail fraud because someone once saw him send a letter.

Accordingly, given the overwhelming evidence of an improper purpose and the government’s complete failure to provide a convincing investigative rationale, the judge granted the extraordinary remedy of quashing the subpoenas:

When the evidence of improper motive is so strong and the justifications for these subpoenas are so tenuous, it is hard to see the renovations and testimony as anything other than a convenient pretext for launching a criminal investigation that the Government launched for another, unstated purpose: pressuring Powell to knuckle under. . . . The Court will therefore grant the Motion to Quash.

What Happens Next

Pirro held a combative press conference in response to the decision. She predictably attacked the highly-regarded Boasberg as an “activist” judge and falsely claimed he had improperly cloaked Powell with criminal immunity.

Pirro’s claim that Boasberg acted outside the law is, of course, nonsense. The Federal Rules specifically recognize that a grand jury subpoena may be challenged and rejected. Boasberg performed the quintessential judicial function of applying the facts before him to the “unreasonable or oppressive” legal standard and found that the Fed had met its burden in challenging the subpoenas. Given the government’s complete failure to provide a convincing rationale for the investigation, Boasberg’s ruling seems eminently reasonable.

Pirro has vowed to appeal the decision. But when it comes to pursuing this case, it’s not clear she is on the same page as the president. Powell’s term as the Fed Chair is up in May, and Trump has nominated former Fed governor Kevin Warsh to replace him. Warsh is largely expected to be more compliant in response to Trump’s demands about interest rates.

But Republican Senator Thom Tillis, who is on the Senate Banking Committee (and who is not running for re-election), has attacked the investigation of Powell as a politically-motivated effort to influence the Fed. Tillis has repeatedly vowed he will not vote to confirm Warsh or any other new Trump nominee to the Fed until the criminal investigation of Powell is dropped. Without his vote, Republicans can’t get the nomination out of committee.

Boasberg’s ruling could have given Pirro’s office an off ramp to close the investigation and clear the way for Warsh’s confirmation while blaming the judge. Instead she plans to appeal, which could easily take six months to a year or more. Assuming Tillis sticks to his guns, that will effectively prevent Trump from having his new Fed Chair confirmed.

I won’t be surprised if Pirro gets the word from her superiors that if she really wants to please the boss, she should take this opportunity as an excuse to close the case and walk away. We shall see.

Pirro’s Abysmal Track Record

This decision is a stinging rebuke to Pirro, but she should be getting used to that by now. She’s had a remarkable string of failures in her improper efforts to use her office to punish Trump’s political opponents and pursue his political goals. The following are some highlights, but are far from an exhaustive list:

Congressional video investigation: After six Members of Congress made a video reminding members of the Armed Forces that they should not follow unlawful orders, Trump blasted it as sedition:

Pirro promptly launched a criminal investigation. The alleged crime was never specified, and for good reason: the video was an accurate statement of the law under the Uniform Code of Military Justice, not to mention protected speech under the First Amendment and the Speech or Debate clause.

A federal grand jury unanimously rejected Pirro’s proposed indictment, finding that prosecutors did not even meet the low threshold of probable cause. A grand jury rejecting a proposed indictment is extremely rare; having it do so unanimously is unheard of.

Two weeks later, Pirro’s office decided to drop the case.

Flag burning case: Just last week, Pirro’s office dropped the charges against a veteran who was prosecuted for burning an American flag outside the White House. The veteran, Jay Carey, was protesting a Trump executive order that urged the Justice Department to find ways to prosecute those who burned the flag. (The Supreme Court has held that flag burning is protected by the First Amendment.)

Facing a court deadline to respond to Carey’s claims that he was a victim of a vindictive prosecution for exercising his First Amendment rights, Pirro’s office quietly dropped the case with no explanation.

Subway Sandwich guy: In a widely-publicized case, Pirro’s office absurdly sought to bring felony assault charges against Sean Dunn, who threw a Subway sandwich at a Customs and Border Patrol agent to protest Trump’s federal law enforcement surge in Washington, D.C. The grand jury refused to indict Dunn for the felony offense. Pirro’s office then charged him with a misdemeanor, which does not require grand jury approval. At his misdemeanor trial, the jury found him not guilty.

Sidney Reid case: In another case stemming from protests of Trump’s surge of federal officers into D.C., Pirro’s office sought to charge Reid with felony assault after her minor scuffle with an agent let to some abrasions on the agent’s hand. Three separate grand juries rejected the felony charges. Once again, Pirro then charged the defendant with a misdemeanor – and once again, a trial jury found her not guilty.

So Much Winning

As I wrote here, the basic ground-level safeguards of the criminal justice system – including grand juries, trial juries, judges, and skilled defense counsel – are putting up effective roadblocks to Trump’s politicization of the justice system.

Pirro remains defiant, blaming liberal jurors and activist judges for her losses. But she has an abysmal track record of failed political prosecutions that should be an embarrassment. One has to wonder how long Trump, who famously abhors “losers,” will continue to put up with it.

Ranking Member Jamie Raskin (D-MD) opened his remarks by saying he was grateful Smith had finally gotten the same opportunity as other Special Counsels to discuss his findings in a public hearing. But that wasn’t entirely accurate; Smith was not being treated like other Special Counsels. The hearing was called as part of a Committee investigation not into Donald Trump but into the alleged weaponization of the Justice Department by the Biden administration. The Republican majority’s goal was not to allow Smith to present his findings but to attack his investigation.

House Judiciary Chairman Jim Jordan at yesterday’s hearing (Kevin Dietsch/Getty Images)

Investigating the Investigators

As I noted in my earlier post, Republicans undoubtedly felt they had to hold a hearing to demonstrate they were going after Smith to appease Trump, who has repeatedly called Smith a “deranged” prosecutor who should be thrown in jail. But they also know it is not really in their interest to have the country reminded about Trump’s conspiracy to overturn the 2020 election, the January 6 riot at the Capitol by his supporters, Trump’s lawless retention and reckless handling of classified materials, and his efforts to obstruct justice.

So Republicans did their best to direct attention away from Trump’s crimes by attacking the prosecutor. Committee Chairman Jim Jordan (R-OH) opened his remarks by claiming Smith’s prosecutions were “always about politics” and that Smith’s goal was to “get President Trump.” He portrayed Smith’s cases as part of a ten-year history of meritless Democratic attacks on Trump, reciting a litany that included James Comey, the Mueller investigation, both impeachments, and the Georgia and New York state prosecutions.

Similarly, during their questioning, Republicans focused on almost anything other than the facts of the criminal cases. As they did during the deposition, they attacked Smith for obtaining the phone records of Republican Members of Congress and claimed he had “spied” on them; suggested Smith was not properly appointed; claimed Trump’s efforts to overturn the election were protected by the First Amendment; and argued about whether the testimony of a single witness, Cassidy Hutchinson, might have been hearsay. (The attacks on Hutchinson were particularly flailing, since there was no indication she was important to Smith’s indictment or that he would have called her as a trial witness.)

Republican efforts to avoid discussing the substance of Trump’s crimes again got an assist from Judge Aileen Cannon, the Trump-appointed judge who presided over his Florida prosecution. Cannon has kept Smith’s report about the classified documents case under seal for the past year, and Trump is now seeking to make that order permanent. Accordingly, as was true in the deposition, Smith was not allowed to reveal anything in Volume 2 of his report discussing the Florida case. The extremely damaging facts concerning classified documents strewn around a Mar-a-Lago bathroom and ballroom and Trump’s efforts to obstruct the investigation were not discussed.

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Overall, the Republican approach to the hearing can best be summed up as: “OK, so maybe Trump tried to overturn the election, caused the riot at the Capitol, mishandled hundreds of classified documents, and tried to obstruct justice. But can we just talk for a minute about how you had the nerve to subpoena our phone records?”

As I discussed in greater detail in the earlier post, the phone records that have the Republicans in such high dudgeon were toll records that list calls made and received from a phone and the length of the call. They do not reveal the substance of any conversations. As Smith testified, obtaining those records was standard investigative practice and his team followed all relevant DOJ rules and legal requirements to obtain them.

It’s not hard to see why Republicans wanted to change the subject. Smith testified that his investigation “developed proof beyond a reasonable doubt that President Trump engaged in criminal activity.” He calmly and repeatedly affirmed the strength of his cases and his team’s readiness to prove the charges in court beyond a reasonable doubt. He forcefully rejected Republican suggestions that he was politically motivated or working at the direction of the Biden White House: “If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.”

Rewriting History

When it comes to the merits of his prosecutions, Republicans once again didn’t lay a glove on Smith. The hearing didn’t reveal any new bombshells or undermine the strength of his cases in any way. But shedding additional light on the truth about Trump’s criminal conduct was never why Republicans called him to testify.

Since shortly after it happened, Trump has been trying to rewrite the history of January 6. He continues to push the “Big Lie” that the 2020 election was stolen from him. He claims the riot at the Capitol was no big deal and that the criminal cases against him were political witch hunts. One of the latest and most outrageous examples of this Presidential gaslighting is an official White House website regarding January 6 that contains nothing but proven lies and Trump propaganda – all at taxpayer expense.

This hearing is perhaps best understood as part of that effort to rewrite history by portraying Trump as an innocent victim -- in this case, of a rogue political prosecutor. The problem for Republicans was that their witness didn’t look the part of a villain. To sell Trump’s story they needed to expose Smith as a fire-breathing, over-zealous Inspector Javert -- as “deranged,” as Trump has said scores of times, including during the hearing itself.

In that effort, Republicans failed miserably. Lacking any actual evidence of misconduct or political motivation, they lobbed only accusations and insinuations. Smith was unflappable and did not waiver in his conviction about the righteousness of his cases. He faces a very real personal risk that the Justice Department will follow Trump’s commands and seek to prosecute him, as it has prosecuted other Trump enemies. Despite that danger, Smith calmly testified, “I’m not going to be intimidated.” He appeared about as far from deranged as one can imagine. The same can’t be said for a few of the Republican questioning him.

But in the current political environment, the substance of the hearing probably matters less than simply the fact that it took place. Republicans will use selected snippets to falsely claim on right-wing media that Smith’s prosecution and integrity were destroyed – or DECIMATED, as Trump himself posted on Truth Social in the middle of the hearing. That is all that much of the MAGA universe will see, and it will reinforce the false narrative of Trump as victim. After all, the regime that looks at the videos of the January 6 Capitol riot and claims it shows a peaceful protest by patriots can easily look at the video of the hearing and claim it shows a deranged, political prosecutor. In an administration where facts no longer matter, the hearing probably served its purpose.

For the rest of us, Smith’s testimony served as a reminder not only of the President’s crimes but also of how far the Justice Department has fallen since Trump took office. Republicans cry that Smith was a political actor secretly doing the bidding of President Joe Biden, but they have no evidence of that. Smith repeatedly and credibly testified that not only was it not true, but that taking political direction in a criminal prosecution would have been counter to everything he has done and learned in his 30-year career.

Contrast that with the current Department of Justice, one year into the Trump administration. President Trump publicly demands the investigation and prosecution of his political opponents, and his Justice Department complies. There is no attempt to hide the use of the Justice Department to pursue Trump’s political goals and personal vendettas. While a Congressional Committee supposedly investigates the secret weaponization of the Justice Department under Biden, the true weaponization by the Trump administration is going every day in plain sight.

In his opening statement, Smith testified about his fear that our collective commitment to the rule of law in this country is eroding. The actions of Trump’s Justice Department over the past year, and the spectacle of yesterday’s hearing, suggest that his fear is well-founded. The long, hard task of restoring that commitment and the public’s confidence in the justice system must be an urgent project of the post-Trump era.

But it’s the editorial board that is pushing flawed legal theories. The piece is at best misleading, and at worst simply dishonest. It endorses a bizarre view of the First Amendment and misrepresents the facts of Smith’s prosecution.

As long-time Sidebars readers know, I was a contributing columnist at the Post for a number of years. I asked them if they would consider a column from me rebutting their editorial. They declined, but said they would accept a letter to the Editor. They did publish my letter, which I appreciate. But there are strict space limitations on letters to the Editor and there is much more to say.

The Washington Post building in Washington, D.C. (Andrew Harnik/Getty Images)

As the Post editorial noted, Republicans on the Committee pressed Smith on whether his prosecution infringed Trump’s First Amendment rights. At one point the Republican counsel asked Smith, “The President’s statements that he believed the election was rife with fraud, those certainly are statements that are protected by the First Amendment, correct?”

Smith responded:

Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment.

According to the Post, this was a “bold claim” by Smith. The editorial board wrote:

Political speech — including speech about elections, no matter how odious — is strongly protected by the First Amendment. It’s not unusual for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.

But this wasn’t a “bold” claim at all. Smith was exactly right. His indictment and legal theories were sound under both criminal and constitutional law.

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Criminal Speech Is Not Protected

The Post editorial goes off the rails right from the start:

Smith’s August 2023 Trump indictment focused on Trump’s repeated claims that the 2020 election was stolen in the run-up to the Capitol riot on Jan. 6, 2021. Put simply, the indictment accused Trump of lying so pervasively about the election that he committed criminal fraud.

That’s not putting it simply, it’s putting it falsely. The charges were not based on Trump’s “lying pervasively” about the election or taking a few “factual liberties” in his public statements. (By the way, didn’t “factual liberties” used to be called just “lies?”) And the indictment wasn’t based on Trump’s “claims,” it was based on his actions.

Smith’s indictment made this distinction clear right up front in the third paragraph: “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” In other words, Trump was entitled to engage in political speech and even to lie about election fraud. He was not prosecuted for that speech.

Trump was prosecuted for conspiracy to defraud the United States, conspiracy to obstruct justice, obstruction of justice, and conspiracy to deprive citizens of their voting rights. He used his lies about the election as tools to further those conspiracies and to persuade others to act in furtherance of those conspiracies. Under well-established law, that speech was not constitutionally protected.

Trump and his co-conspirators used the lies about the stolen election and voter fraud to try to convince state officials to overturn their election results. They used them to persuade groups of phony state electors to execute false documents claiming Trump had won their state and send those documents to Washington. Trump used the lies to pressure Mike Pence and try to persuade him to discard lawful ballots and throw the election to Trump.

Trump also used those lies to create what the indictment called an “intense national atmosphere of mistrust and anger,” culminating in his summoned supporters coming to Washington and rioting at the Capitol on January 6. He failed to do anything to try to stop that riot for more than three hours, but did send a Tweet that inflamed the crowd and endangered Pence’s life — taking advantage of the riot and fanning the flames in furtherance of the conspiracies to overturn the election results.

It’s true that these crimes involved speech. Many crimes do. The con man who convinces his victims to put their money in a phony investment scheme uses speech to do it, but prosecuting him and introducing evidence of that speech is not unconstitutional. Fraud, perjury, extortion, bribery, threats, and other crimes routinely involve talking. But the Supreme Court has repeatedly recognized that the First Amendment does not protect speech that is used as an instrument of a crime.

A Conspiracy to Defraud the Government

In response to Smith’s point that speech in furtherance of a fraud is not protected, the editorial conceded that “of course fraud is a crime.” But it argued that Smith’s fraud theory was flawed because fraud “almost always involves dissembling for money, not political advantage.”

(As another aside, don’t you love the characterization of Trump’s efforts to overturn the election as merely seeking “political advantage?”)

This too is legally incorrect. For more than 100 years the Supreme Court has recognized that a conspiracy to defraud the government under 18 U.S.C. 371, the charge used in Smith’s indictment, does not required any monetary loss to the government.

Conspiracy to defraud the United States requires only a conspiracy to obstruct or defeat a lawful government function through deceitful or corrupt means. Trump was charged with conspiring to obstruct and defeat the Congressional vote count proceeding through the fake electors, pressure on state officials, lies about voter fraud, and other dishonest schemes. That makes out a conspiracy to defraud the United States under section 371. The facts of this case were unprecedented, but Smith’s legal theory was grounded in a century of precedent.

If you are interested in more detail about this criminal charge, I wrote about it here and here in connection with the Robert Mueller special counsel investigation. Mueller also used conspiracy to defraud the United States to charge the Russians who sought to influence the 2016 election. They were charged with conspiring to defeat the lawful functions of the Federal Election Commission, State Department, and Department of Justice — all without proof of any monetary loss.

The Judge Agreed with Smith

The editorial notably failed to acknowledge that the parties litigated these First Amendment claims before the trial judge, and she ruled against Trump. Rejecting Trump’s motion to dismiss, Judge Chutkan found that the indictment “properly alleges [Trump’s] statements were made in furtherance of a criminal scheme” and thus were not constitutionally protected.

If you’re going to paint Smith as a rogue prosecutor with no regard for constitutional rights, it might be, you know, fair and balanced to point out that a federal district judge agreed with Smith, and disagreed with Trump, on these very issues.

The Gag Order Was Appropriate

The editorial also faulted Smith for standing by his decision to seek a gag order that would prevent Trump from attacking witnesses, prosecutors, court personnel, or the criminal process. It claimed Smith had sought to “muzzle” Trump in the midst of his presidential campaign. But Trump had a well-documented habit of viciously and publicly attacking anyone involved in his prosecution. The trial judge found that a gag order was required to prevent these attacks from jeopardizing the safety of witnesses and court personnel and potentially influencing the jury pool.

Gag orders raise tricky constitutional issues. But the free speech rights of criminal defendants are more limited than those of members of the general public, and judges have the right and obligation to protect the integrity of their proceedings. The court of appeals trimmed the gag order around the edges, primarily by saying Trump had to be free to criticize Smith himself. But it left most of the gag order in place, agreeing with the trial judge that Trump’s attacks risked jeopardizing the fairness of the trial.

This was not a unique case; the judge in Trump’s New York state prosecution also imposed a gag order on Trump in response to his similar attacks, and the New York appeals court upheld that order.

Even under the D.C. gag order, Trump was still free to claim he was innocent and that he was a victim of political prosecution by the Biden administration – he was hardly “muzzled.” Smith cannot be faulted for trying to protect his witnesses and staff from the dangers posed by Trump’s repeated attacks and for trying to ensure that the trial proceedings were untainted by Trump’s social media rants.

When multiple trial and appellate judges agree that gag orders are an appropriate response to Trump’s tirades, it’s hard to paint Smith as a rogue prosecutor with no regard for the First Amendment.

Democracy Dies in Darkness

The editorial says Smith “apparently has no regrets about this heavy-handed approach, even though it failed legally and probably helped Trump win the 2024 election.”

Hold on — in what sense did Smith’s approach “fail legally?” His charges were upheld by the judge, as was the bulk of his proposed gag order. The case had to be dismissed when Trump won re-election, but that had nothing to do with its legal merits. I have little doubt that, had the voters not chosen to put Trump back in office, he would have been convicted at trial.

As for possibly helping Trump win the election, Smith’s job as a prosecutor was to follow the facts and the law without regard to the political ramifications – a proposition with which you’d expect the Post to agree.

The editorial concludes by saying, “Any honest accounting of the Trump legal saga needs to reckon with” the arguments in the editorial. As I’ve said many times, irony is dead in Washington: the city’s paper of record is calling for an “honest accounting” in an editorial that can be fairly accused of being dishonest. It parrots Trump’s failed legal arguments and political talking points and presents them as self-evident truths, while misrepresenting the nature of the case against him.

It’s sad to see what has happened at the Post since Trump’s re-election. During the first Trump administration the paper adopted the somewhat pretentious slogan, “Democracy Dies in Darkness.” But recently, under Jeff Bezos’ ownership and their new editorial leadership, rather than acting as a beacon the opinion pages frequently sound like a MAGA mouthpiece. These days the slogan often feels less like a warning and more like a plan of action.

Trump has been trying to rewrite the history of January 6 and the 2020 election for years. (The most recent example is an outrageous official White House website that is filled with nothing but proven lies and Trump propaganda.) It’s distressing to see the Post contributing to that effort by falsely casting Trump as the victim of an overzealous prosecutor who did not respect the Constitution.

PS: Jack Smith reportedly will testify before the House Judiciary Committee again on January 22, this time in a public hearing. Expect Republican questions about the First Amendment to figure prominently and to echo the flawed arguments made by the Post.

Smith’s testimony left no doubt that, had the voters not chosen to put Trump back in office, he almost certainly would have been convicted of multiple federal felonies. But as important as Smith’s defense of his prosecutions was his defense of his team and of the Justice Department as it functioned in the pre-Trump era. He provided a stirring defense of the Justice Department we have lost — and that we must reclaim once Trump has left the stage.

Jack Smith(r), with his counsel Peter Koski, during his Congressional testimony

Smith had offered to testify in public and without a subpoena, as past special counsels have done. House Republicans refused and subpoenaed him to testify in a closed-door deposition. They then waited to release the transcript and video of that testimony until New Year’s Eve, when most of the country was checked out and focused on the holidays.

Republicans were in a tough spot. They had to drag Smith before the committee to appease Trump by appearing to investigate the special counsel. But they also knew it wasn’t really in their interest to remind the country about Trump’s conspiracy to overturn the 2020 election, the January 6 riot at the Capitol carried out by his supporters, his theft and careless storage of highly classified materials at Mar-a-Lago, and his efforts to obstruct justice.

During the more than eight hours of Smith’s testimony, Republicans didn’t lay a glove on him. Lacking any actual evidence that Smith had “weaponized” the justice system against Trump, they came armed only with speculations and insinuations. Smith easily swatted those aside. While Democrat Members of the committee were active questioners, Republicans — apart from a handful of questions by Chairman Jim Jordan — largely left the questioning to their counsel, as if wishing it could all be over as soon as possible.

If Republicans were hoping they could trip up the 30-year prosecutor and provide some pretext for Pam Bondi’s Justice Department to indict him, they failed miserably. What they did get was a calm but forceful defense of the Trump prosecutions and a tutorial on how a properly functioning Department of Justice pursues criminal cases.

Here are some key takeaways from Smith’s testimony.

The Strength of Smith’s Cases

It’s not difficult to see why Republicans tried to bury the news of Smith’s testimony in a holiday news dump.

In his opening statement, Smith said:

Our investigation developed proof beyond a reasonable doubt that President Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power.

Our investigation also developed powerful evidence that showed that President Trump willfully retained highly classified documents after he left office in January of 2021, storing them at his social club, including in a ballroom and a bathroom. He then repeatedly tried to obstruct justice to conceal his continued retention of those documents.

Most of Smith’s testimony focused on the Washington, D.C. case involving Trump’s efforts to overturn the election. He was not able to say much about the Florida classified documents case – more about that below.

On the D.C. case, Smith recounted how Trump and his allies repeatedly used false claims about fraud to seek to overturn the election results. Trump persisted in those lies even after courts rejected them and some of his own advisors told him they were not true. He pressured various state officials to overturn their election results, based on those false claims. He and his co-conspirators orchestrated slates of fake electors to send false documents to Washington claiming that Trump had won their state.

Smith testified: “the evidence here made clear that President Trump was by a large measure the most culpable and most responsible person in this conspiracy. These crimes were committed for his benefit. The attack that happened at the Capitol . . . does not happen without him. The other co-conspirators were doing this for his benefit.”

When Republican counsel pressed Smith on whether he had evidence that Trump had actually instructed rioters to storm the Capitol, Smith replied:

So our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him . . .

Our evidence is that he in the weeks leading up to January 6th created a level of distrust. He used that level of distrust to get people to believe fraud claims that weren’t true. He made false statements to State legislatures, to his supporters in all sorts of contexts and was aware in the days leading up to January 6th that his supporters were angry when he invited them and then he directed them to the Capitol.

Now, once they were at the Capitol and once the attack on the Capitol happened, he refused to stop it. He instead issued a tweet that without question in my mind endangered the life of his own Vice President. And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it.

And then even afterwards he directed co-conspirators to make calls to Members of Congress, people who were his political allies, to further delay the proceedings.

Smith also emphasized that one of the strengths of his case was that most of his key witnesses were Republicans - undermining the claims of a political prosecution. They were people who had voted for Trump and wanted him to succeed, but were not willing to go along with his criminal scheme after he lost the election: “Our case was built on, frankly, Republicans who put their allegiance to the country before the party."

Smith left no doubt about his belief in the strength of his case and the righteousness of the prosecution. If you’d like a refresher on the D.C. case and the charges, you can find that here:

No Political Influence

Smith forcefully rejected repeated suggestions that his investigations were politically motivated:

I made my decisions in the investigation without regard to President Trump’s political association, activities, beliefs, or candidacy in the 2024 Presidential election. We took our actions based on the facts and the law, the very lessons I learned early in my career as a prosecutor. …

If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.

Smith testified that he never spoke to president Biden or received any direction from Biden or the White House about the case. In response to suggestions that the goal of his investigation was to make sure Trump lost the election, Smith responded: “I think people who know me and my experience over 30 years would find that laughable.”

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The Focus on Toll Records

Smith also rebutted claims that the Justice Department demonstrated political bias by subpoenaing phone records for several Republican Members of Congress. (Some of those subpoenas were issued before Smith was appointed.) Republicans were outraged when this news broke last October, crying that the Biden Justice Department had “spied” on them and falsely claiming that their phones had been “tapped.”

As Smith explained, the toll records that were subpoenaed merely show, after the fact, the numbers called and received by a telephone and the duration of the call. They do not reveal anything about the substance of any conversation. They are thus distinct from a wiretap that intercepts and records conversations in real time; no Members’ phones were tapped.

The evidence showed that as the Capitol riot was taking place, Trump and members of his staff were calling various Republicans to try to persuade them to further delay the count of electoral votes. Smith explained it was important for the investigation to establish a timeline of those calls as potential evidence of Trump’s ongoing efforts to obstruct the proceeding. He rejected Republican claims that the toll records were protected by the Speech or Debate clause of the Constitution, noting that investigators complied with all standard DOJ procedures when obtaining the records.

Given the facts as they unfolded, it would have been investigative malpractice for Smith not to seek the toll records. As for why only the phone records of Republican Members were subpoenaed, Smith had an easy answer: “I did not choose those Members, President Trump did.”

Free Speech Was Not Implicated

Smith also shot down one of the leading alleged defenses of Trump’s actions: that his claims of election fraud were protected by the First Amendment and that the prosecution violated his free speech rights.

Smith noted that the indictment itself specified that Trump was free to claim he won the election, even if he knew that was a lie. What he was not entitled to do was to make knowingly false claims to induce others to act in pursuit of a fraud that would overturn the election and interfere with the lawful transfer of power. “Under Supreme Court precedent,” he said, “fraud is not protected by the First Amendment.”

As Smith noted, nearly all fraud cases involve speech. The con man who persuades his victims to part with their money may do so by speaking, but that speech is not protected by the First Amendment. The same is true here. Trump repeated multiple false claims, even after being shown evidence that they were false, in furtherance of a scheme to defraud the United States. That scheme involved speech, but it is not speech protected by the First Amendment.

(This didn’t come up during the testimony, but it appears to me Smith actually went out of his way to avoid any First Amendment issues. Before the case was indicted there were calls by many, including the House January 6 Committee, to include a charge that Trump incited the riot through his speech on the Ellipse on January 6. Smith, I think wisely, chose to avoid that charge, which would have focused almost exclusively on Trump’s political speech. As I argued here, I think prosecutors ultimately could have won a legal fight over whether that speech was protected by the First Amendment. But Smith didn’t need the charge and wisely just took it off the table, to avoid giving ammunition to those who would inevitably claim he was prosecuting political speech.)

Smith Was Muzzled Regarding the Florida Case

As I noted above, Smith was not able to say much about the Florida case charging Trump with improperly retaining classified documents and obstruction of justice. That’s because the judge in that case, Aileen Cannon, has ordered that Volume Two of Smith’s report, which deals with the Florida case, must remain under seal.

Keeping Volume Two confidential made sense while Trump’s co-conspirators were still under indictment. But those indictments were dismissed shortly after Trump was sworn in, and at that point there was no reason not to release the report. As Democratic counsel noted at the start of Smith’s testimony, ​​”there is no reason at all to continue to keep Volume Two under seal -- besides, of course, the fact that Mr. Trump doesn’t like what it says.”

Public interest groups moved almost a year ago to have the report released. But in her latest act of fealty to Trump, Judge Cannon sat on that motion and refused to act. Finally, in a rare move, the 11th Circuit ordered her to decide the motion and gave her a deadline of January 2, 2026.

On December 22 (a week after Smith’s testimony) Cannon finally cleared the way for the Justice Department to release the report, but stayed her order for 60 days to give Trump a chance to appeal. Even if they don’t appeal, under the Special Counsel regulations it is up to Attorney General Bondi to decide whether to make the report public — so we will see how that goes.

Before Smith testified, the Justice Department emailed his attorneys to confirm its view that Cannon’s order meant Smith could not discuss any non-public information about the Florida case. Smith was understandably very careful to avoid stepping over that line, which could result in his being accused of violating Cannon’s order. So, while insisting that Smith testify about his investigations, Republicans also made sure it was impossible for him to say anything new about Florida that might embarrass the president.

Nevertheless, relying only on the indictment and other public records, Smith was able to describe how Trump wrongfully retained hundreds of classified documents and had them strewn around non-secure spaces at Mar-a-Lago. He also testified how the evidence showed that Trump and his co-conspirators concealed documents after they were subpoenaed, lied about it, and tried to delete the video surveillance footage that recorded their actions.

At one point, Republican counsel tried to suggest the documents were not really at risk at Mar-a-Lago because it was a private club that had Secret Service protection: “I mean, a person can’t just walk into Mar-a-Lago and try to abscond with these materials, right?” Smith responded: “I would very much like to answer that question, but I cannot answer that question due to the final report [being under seal].” This tantalizing response suggests that when we do finally see the report, it’s going to contain evidence that unauthorized individuals did indeed access classified materials at Trump’s resort.

If you want a refresher on the Florida indictment and charges, you can find it here:

The Harm Being Done to the Justice Department

Smith said he had wanted to testify publicly because he was proud of the investigations and the work of his team. He wanted to speak up for them and respond to all the false attacks directed at them. “I am both saddened and angered that President Trump has sought revenge against career prosecutors, FBI agents, and support staff simply for doing their jobs and for having worked on those cases. These dedicated public servants are the best of us, and they have been wrongly vilified and improperly dismissed from their jobs.”

But as Smith warned, the damage being done to the Justice Department goes far beyond Trump’s personal vendettas. The Trump administration is dismantling a prosecutorial culture that has been built up over decades. That was the culture that produced career professionals like Smith: a culture where the prosecutor strives to do the right thing for the right reasons, following the facts and law without regard to politics. The purges at Trump’s Justice Department send a clear, and chilling, message: what is required now is not devotion to the rule of law and the Constitution but devotion to Donald Trump.

As a close observer of Smith’s investigations and prosecutions from the beginning, it was always clear to me they were being carried out in the best tradition of the Department of Justice, under extremely difficult circumstances. His report and now his testimony confirm that. But one year into Trump’s second term, the public can have no confidence that this Justice Department has either the willingness or the ability to act with that same integrity.

When you staff the Justice Department with inexperienced and unqualified people who do not share a commitment to DOJ’s traditional values, you erode not only the quality of the work but also the public’s faith in the justice system. Prosecution comes to be seen as simply a political weapon, as it is in authoritarian regimes. We have already seen that happen, with Trump’s DOJ targeting his political foes with flimsy, baseless prosecutions that often quickly fall apart. (With Trump repeatedly attacking him and calling for his prosecution, Smith himself is in danger of facing similar retribution. He acknowledged that he is “eyes wide open” about that prospect.)

This damage will endure long after Trump is gone. As Smith observed, “when you fire people who are career public servants serving both parties over many decades, you . . . lose the expertise about how to do the job properly. And that has an effect on the Department today, and it will have an effect on the Department for some time, if those people aren’t there to be leaders and to teach young lawyers how to be public servants.”

As Smith said about his former colleagues who have been wrongfully terminated: “These are not partisans. They’re people who have decided they don’t want to make a lot of money. They’re not looking for fame. They just want to do good work, and I think when you lose that culture, you lose a lot.”

How DOJ Is Supposed to Work

Smith’s testimony was a breath of fresh air. It highlighted how the Justice Department worked in the pre-Trump era, when investigations were driven by the facts and the law and politics was not allowed to play any role. For former prosecutors like me, it was gratifying to hear someone forcefully articulate the principles that always guided us and that are sorely lacking in the current Justice Department.

The MAGA world and other partisans will no doubt scoff and reject Smith’s testimony that he was not a political actor. But for me, and I’m sure for countless others who have worked as federal prosecutors, his testimony resonated: yes, that’s the job. That’s how you do the work.

But Smith’s testimony was also a sobering reminder of what we have lost in the past year. The long, difficult task of the post-Trump era will be to rebuild the proper prosecutorial culture at the Justice Department and restore the public’s faith in a justice system governed by the rule of law. Jack Smith’s career, and his work as special counsel, provide a model for us to follow.

Former FBI Director James Comey (Jonathan Ernst/Reuters)

On Monday federal district court judge Cameron Currie dismissed the indictments of former FBI director James Comey and New York Attorney General Letitia James. Judge Currie found that the appointment of Lindsey Halligan as the interim U.S. Attorney in the Eastern District of Virginia was unlawful, and therefore the indictments she obtained are invalid. This was just one of the many problems with the Comey prosecution, as discussed in my last post:

You can read Judge Currie’s opinion dismissing the Comey case here.

Judge Currie dismissed the indictments without prejudice, meaning that in theory the government could re-indict the cases once a lawfully-appointed U.S. Attorney is in place. In Comey’s case, though, the statute of limitations expired just a few days after he was indicted. There is a federal statute, 18 U.S.C. 3288, that gives the government six months to re-indict a case if it is dismissed after the statute of limitations has run. But as Judge Currie discussed in footnote 21 of her opinion, that principle doesn’t apply where, as here, there was never a legal indictment in the first place. That means the statute of limitations should prevent prosecutors from obtaining a new indictment.

The government can appeal Judge Currie’s decision and almost certainly will. But if her dismissal stands, it looks like the Comey case will be gone for good. (The way the government charged the James case, they shouldn’t have the same statute of limitations issue.)

In some ways, this is the least embarrassing outcome for Halligan and the government. It avoids judicial findings on vindictive prosecution and all the misconduct by Halligan and the FBI discussed in my last post; there is no reason for the judge to rule on those motions now that the case is dismissed. The government can tie this up in a lengthy (and probably ultimately unsuccessful) appeal while blaming another “activist, deep state judge,” and put all their other serious problems with the case aside.

It would have been gratifying to see judicial findings on vindictive prosecution and government misconduct, to see the government held accountable. But of course, if you’re Comey, a win is a win and you’ll gladly take it.

When this decision came down, I was working on an article for The Atlantic about how the criminal justice system is serving as an effective check on Trump’s power. It included quite a bit about the Comey prosecution. It was originally slated for after Thanksgiving, but in light of the Comey news the editors decided they wanted to update the piece and publish right away — so that’s how I spent my Monday afternoon. I want to share a free link with all of you.

The One Place Trump’s Power Remains Constrained - The Atlantic

As I’ve written before, I think results like this are hopeful reminders about the limits of Trump’s power. As we move into the holidays, we can all use some hopeful news.

I wish you and yours the happiest of Thanksgivings.

All the best,

Randall

The prosecution is unraveling on several other fronts as well. At this point, it appears extremely unlikely the case will ever make it to trial.

We are seeing what happens when corruption meets incompetence at Pam Bondi’s Department of Justice. It was obvious from day one that this case never should have been indicted. It’s good to see the safeguards of the criminal justice system responding accordingly.

Background on the Comey Indictment

Trump has been attacking Comey and demanding his prosecution for years, angry about Comey’s role in investigating Russian efforts to influence the 2016 presidential election - what Trump calls the “Russia hoax.” After his election in 2024, Trump renewed his demands that Comey be prosecuted — for what alleged crimes was never clear, but that didn’t seem to matter. The Justice Department began investigating Comey for allegedly lying during Congressional testimony back in 2020. This past September, as the five-year statute of limitations was about to expire, career prosecutors in the U.S. Attorney’s Office for the Eastern District of Virginia concluded there was insufficient evidence and the case should not be pursued.

Trump responded by forcing out Erik Siebert, the respected career prosecutor who was acting U.S. Attorney and who had declined to bring the case. He then installed Lindsey Halligan, one of his personal attorneys with no experience as a prosecutor, as the new acting U.S. Attorney. In a Truth Social post, he ordered Attorney General Pam Bondi to ensure that “justice” was done by quickly indicting Comey and other Trump enemies, who he claimed were all “guilty as hell.”

Lindsey Halligan (Jacquelyn Martin/AP)

Halligan complied by indicting Comey just a few days after her appointment and a few days before the statute of limitations would have expired. The skimpy, two-page indictment charges the former FBI director with lying to Congress and obstructing a 2020 Congressional proceeding.

Halligan had never indicted a case before. Because the career people in the office did not support the indictment, no other prosecutor joined Halligan on her maiden voyage in the grand jury.

Allegations of Privilege and 4th Amendment Violations

During pretrial skirmishing, Comey’s defense team came to believe the government may have engaged in misconduct before the grand jury. Prosecutors are seeking to use evidence obtained during another investigation in 2019 and 2020 that was called “Arctic Haze.” That investigation into possible leaks of classified information involved law professor Dan Richman, a friend of Comey’s who had also acted as his attorney. The investigation did not result in any charges, but investigators executed four search warrants and seized materials from Richman’s email and cloud accounts and electronic devices.

Fast forward to 2025: prosecutors in the Comey case want to use some of that seized evidence from the earlier investigation to prove their case against Comey. Following his indictment, prosecutors asked the judge to set up a screening procedure to allow prosecutors to use the evidence while avoiding government exposure to any material protected by attorney-client privilege. The defense responded by claiming that the government had already reviewed the privileged materials and may have improperly relied upon them when obtaining the indictment.

Judges, like defendants, typically do not have access to grand jury materials. Rather than just turn the materials over to the defense, prosecutors suggested that Fitzpatrick first review the materials himself. He agreed, and that review led to his order on Monday.

The judge found that the government likely acted improperly when it decided to “rummage through” the material seized during the Arctic Haze investigation. He wrote: “Inexplicably, the government elected not to seek a new warrant for the 2025 search, even though the 2025 investigation was focused on a different person, was exploring a fundamentally different legal theory, and was predicated on an entirely different set of criminal offenses.” Had the government obtained a new search warrant based on the allegations against Comey, it would have been properly limited in scope to evidence potentially relevant to these particular charges. But that would have taken time — time that perhaps the government thought it did not have.

The judge also found there was evidence that during Arctic Haze the government had not taken effective steps to limit the seizure of attorney-client privileged materials. It also apparently seized materials that went far beyond the scope of the search warrants, a violation of the Fourth Amendment.

The judge further found that shortly before Comey was indicted, investigators realized they may have been exposed to materials protected by attorney-client privilege. Rather than walling off those investigators from the case, however, the lead agent who had been exposed went ahead and testified in the grand jury as the government’s only witness. The judge stated that the “government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice.”

Halligan’s Alleged Misconduct

In addition to the misconduct involving the Fourth Amendment violations and attorney-client communications, the judge found that Halligan made two statements before the grand jury “that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the grand jury process.”

We don’t have Halligan’s exact statements because they are redacted, but it appears she told the grand jurors that Comey may need to testify at his trial in order to explain what happened. As any first-year law student knows, that suggestion runs afoul of the Fifth Amendment. As the judge noted, the statement “ignores the foundational rule of law that if Mr. Comey exercised his right not to testify the jury could draw no negative inference from that decision.” It suggests that rather than the government having the burden to prove guilt beyond a reasonable doubt, Comey had the burden of explaining away the government’s evidence.

Halligan also apparently told the grand jurors they did not need to rely only on the evidence before them. The judge found that her statements suggested the grand jurors “could be assured the government had more evidence – perhaps better evidence – that would be presented at trial.” This too is improper. The grand jury must find probable cause based on the evidence the government presents, not speculate about other, juicier evidence that may be out there.

The judge also found irregularities in the record and indications that the grand jury transcripts the government provided were not complete. Halligan initially presented a proposed three-count indictment to the grand jury late in the afternoon, but it rejected one count. Later that evening, Halligan apparently obtained a vote on the two-count indictment that was ultimately returned. But the judge noted there were no records of those later proceedings before the grand jury. It’s not entirely clear the second indictment was actually presented to or voted on by the grand jury. Or maybe Halligan went back and obtained the vote but there was no court reporter present because it was now evening - which would be another major violation of grand jury procedure.

(This confusion in the record aligns with the reports at the time the indictment was returned that there was some confusion in the courtroom because there appeared to be two different signed indictments and Halligan herself was less than clear on what exactly had happened.)

In any event, the judge found there was enough uncertainty about how exactly the indictment was obtained to overcome the “presumption of regularity” typically associated with grand jury proceedings and allow the defense to explore the issue.

Update: A few hours after I published this post, the government admitted in a hearing before Judge Nachmanoff that the grand jury never saw the second version of the indictment, the one with only two counts. Halligan and the grand jury foreperson just signed it on their own, and that became the basis of the case. You can read the New York Times summary of that hearing here. The judge hasn’t ruled yet, but in my view that should be game over: if the grand jury did not see and vote on the indictment, it’s not valid. The case should be dismissed. And because there never was a valid indictment at all, there’s a good chance the statute of limitations will prohibit the government from re-indicting.

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What Happens Now

Magistrate Judge Fitzpatrick concluded by listing eleven different grounds the defense may have to challenge the indictment, based on the mishandling of privileged information, Fourth Amendment violations, and misconduct before the grand jury. He ordered prosecutors to produce all grand jury materials to the defense by Monday afternoon.

This is an extraordinary remedy. In a normal case the defense does not get these materials even if a case goes to trial. Secrecy is a fundamental aspect of grand jury proceedings and that secrecy is jealously guarded. But in cases like this, where there is serious evidence of government misconduct, the defendant’s right to Due Process can override that secrecy.

Grand jury practice is a specialized area. Even most lawyers know very little about it. The idea that Halligan, with no relevant experience, could just jump in and indict a major criminal case on her own without screwing it up required an astonishing combination of arrogance and ignorance.

But calling these mere rookie mistakes would be an insult to rookie prosecutors everywhere. This is gross incompetence. It’s what happens when the administration values blind loyalty to Trump over experience, ability, or integrity.

This doesn’t mean the case will be dismissed for misconduct - yet. It simply means the defense has the right to review the grand jury materials when preparing its arguments for dismissal. The judge will still need to rule on those motions down the road. The tenor of his ruling suggests that he thinks the defense may have a strong case.

This order was issued by federal magistrate judge Fitzpatrick, who is handling pretrial matters for the federal judge assigned to the case – a common practice. The government promptly asked that judge, Michael Nachmanoff, to pause the order to give them time to appeal. Judge Nachmanoff agreed and gave prosecutors until Wednesday to file their appeal, and gave the government until Friday to respond. It sounds like he intends to move quickly.

If Nachmanoff upholds Fitzpatrick’s order, the grand jury materials should be turned over and proceedings on the defense motions to dismiss will move forward — or there may be further appeals.

Challenges to Halligan’s Appointment

The potential misconduct before the grand jury is only one of the challenges facing the Comey indictment — and may not even be the strongest one. Another federal district court judge recently heard arguments from attorneys for Comey and New York Attorney General Letitia James (another Trump enemy recently indicted by Halligan) that Halligan’s appointment as acting U.S. Attorney was unlawful.

The Constitution requires that federal officers such as United States Attorneys be appointed with the “advice and consent” of the Senate. In the absence of a Senate-confirmed appointee, federal law provides that the president may appoint an acting U.S. Attorney for a period not to exceed 120 days. If that time expires, the federal judges in that district then select someone to fill the role until the Senate confirms a nominee.

As I noted above, Erik Siebert was serving as acting U.S. Attorney in the Eastern District of Virginia. He had been appointed to that position by Trump himself. His 120-day term had expired and the judges chose to keep him in the role. Then Trump forced him out and sought to install Halligan as acting U.S. Attorney in his place.

The problem, according to the defense, is that the law only allows the president to make one 120-day interim appointment. If he could make successive appointments, as the government is claiming, that would allow him to put a rolling series of political allies or unqualified hacks in the role indefinitely and bypass Senate confirmation forever. That would violate the Constitutional checks and balances provided by the Senate’s advice and consent role.

Judges in several other districts have ruled that the acting U.S. Attorneys there were unlawfully appointed, based on this same argument. They declined to dismiss cases brought there, however, because other, legally-appointed prosecutors also had been involved in the indictments in question. Here Halligan acted alone, so if the defense is correct it means there was no one with lawful authority in the grand jury when the case was indicted. As the defense argued, it would be as if Trump sent Steve Bannon into the grand jury to indict one of Trump’s enemies.

The judge hearing the challenges seemed quite sympathetic to the defense claims. She said she would rule by Thanksgiving, so we should know something soon. If she dismisses the indictments prosecutors may be able to re-indict James once a lawfully-appointed U.S. Attorney is in place. But the statute of limitations should prevent them from re-indicting Comey.

If the defense wins here, the allegations of grand jury misconduct may never need to be decided.

Other Challenges to Comey’s Indictment

The defense has raised other serious challenges to the Comey indictment as well. Foremost is a claim of vindictive and selective prosecution: the argument that Comey was improperly targeted for indictment based on Trump’s personal animus. That motion included a 60-page appendix listing Trump’s public attacks on Comey over the past eight years. Such motions are very difficult to win, but if anyone ever had a good vindictive prosecution argument, it’s Comey.

The defense has also challenged the indictment as fundamentally ambiguous and legally flawed, because it’s not clear exactly what the government is alleging. The indictment focuses on an exchange Comey had with Senator Ted Cruz regarding whether Comey had ever authorized FBI Deputy Director Andrew McCabe to leak information to the press. But to prove that was false, the government apparently intends to argue that Comey authorized Richman to leak information - a different issue. At the very least, the defense argues, the questions and answers were fatally ambiguous and cannot support a claim that Comey deliberately lied.

In addition, Comey argues that his answers were literally true: he told Cruz that he would “stand by” his earlier testimony in 2017 about whether he authorized anyone to leak. As the defense notes, even if the 2017 testimony were false (which the defense denies), saying in 2020 that you stand by it is not itself a false statement. Under these statutes it’s not enough if an answer was potentially confusing or even deliberately evasive. If it’s literally true, it’s not a crime.

Checks and Balances

I expect the Comey case is going to be dismissed, one way or another. Perhaps someday, if there is a change in administration, Halligan and others will face professional consequences for their misconduct, as did Rudy Giuliani, Sydney Powell, and other members of Trump’s legal “elite strike force” who challenged supposed election fraud in 2020.

Trump is losing in other legal arenas as well. In my last post I wrote about the acquittal of Sidney Reid, who was charged with misdemeanor assault on a federal officer after a grand jury refused three times to indict her for a felony. Two weeks ago another trial jury acquitted Sean Dunn, the “Subway sandwich guy,” of misdemeanor assault for throwing a sandwich at a federal officer. The grand jury had also refused to indict Dunn for a felony.

In an even more intriguing development, Chief Judge Boasberg in D.C. is now free to move forward with potential contempt of court proceedings against Trump officials, following months of delay by the court of appeals. This involves allegations that administration officials violated Boasberg’s orders last March by continuing to fly Venezuelan detainees to a notorious prison in El Salvador after he ordered a halt and misled the judge about what was going on.

One potential defendant in any contempt proceedings would be Emil Bove, acting Deputy Attorney General at the time, who allegedly told prosecutors they may have to say “fuck you” to the court if they are ordered to stop the deportations. After being narrowly confirmed by the Senate, Bove is now serving as the newest judge on the U.S. Court of Appeals for the Third Circuit. If District Judge Boasberg ends up with Circuit Judge Bove as a defendant in his courtroom, that will be . . . interesting.

Trump continues to seek to bulldoze the Constitution as though it were the East Wing of the White House. With a compliant Supreme Court and spineless Republican Congress there are relatively few institutions to stand in his way. But once again trial judges, the Bill of Rights, and the adversary system are giving us some reason for optimism.

Trump regularly complains that the justice system was weaponized against him because it dared to seek to hold him accountable for his criminal acts. One of the many ironies of the Trump era is that it is Trump himself who has weaponized the justice system, in ways that would have been unthinkable in any prior administration.

Trump’s corruption of the Department of Justice is causing tremendous damage. But there are still some guardrails, some reasons for hope, and some reminders that Trump is not in fact all-powerful.

The Comey and James Indictments

In my prior post I discussed how Trump had forced out Erik Siebert, the respected career U.S. Attorney in the Eastern District of Virginia, because he refused to follow Trump’s public commands to indict former FBI director James Comey and New York Attorney General Letitia James. Trump then installed Lindsey Halligan, one of his personal attorneys with zero experience as a prosecutor, as the head of one of the country’s most important U.S. Attorney’s offices. As I noted at the time, Halligan’s primary qualification appeared to be a willingness to do whatever Trump wants her to do.

Halligan wasted no time demonstrating those qualifications. Within a few days of her appointment, and just days before the statute of limitations would have expired, she obtained an indictment of Comey for lying to Congress and obstruction of justice based on his testimony in a Congressional hearing in 2020. Two weeks later Halligan indicted James for mortgage fraud, based on a claim that she falsely said in mortgage paperwork that a property she purchased would be used as her personal residence.

As many commentators have noted, both cases appear laughably thin. The indictments are bare bones allegations, not the detailed “speaking indictments” that real prosecutors typically prepare in significant white collar cases. In both cases Halligan apparently had to present the evidence to the grand jury herself because the career prosecutors in her office refused to participate.

Even if the government can prove misstatements in Comey’s testimony or in James’s loan paperwork (which is far from clear), proving criminal intent in both cases will be extremely difficult. There are many legal issues and potential defenses in these types of cases. Mistake, confusion, failures to recall, inconsistent paperwork - none of these are crimes. As the career prosecutors in Virginia had concluded, given these slim facts, these are not matters the Justice Department typically would pursue.

These cases may never make it to trial. The defense will certainly file motions to dismiss for vindictive or selective prosecution, and Trump’s own actions give them a compelling case. Defense attorneys also intend to challenge the legality of Halligan’s appointment. If the cases do go to trial, prosecutors will need to prove beyond a reasonable doubt to a unanimous jury that the defendants knowingly and intentionally lied or committed fraud. I frankly would be shocked if either case ends up in a criminal conviction.

That does not, of course, negate the harm to these defendants. Simply being indicted causes tremendous emotional, reputational, and financial injury. And that is precisely the point: Trump wants to use the criminal justice system to inflict pain on his political foes, and Pam Bondi and his other lackeys in the Justice Department are willing to help him.

Trump has a long list of perceived enemies, and other “revenge prosecutions” are probably coming. I hate to sound like a broken record, but using criminal prosecution to go after the leader’s political opponents is textbook authoritarianism. It’s a violation of everything that DOJ has stood for. In a statement following his indictment, Comey said: “My heart is broken for the Department of Justice.” That’s exactly how I and most of his other former colleagues feel.

The Bolton Indictment

Last Thursday John Bolton became the third Trump antagonist to face criminal charges. Bolton served as National Security Advisor in Trump’s first term, but after leaving the administration became a vocal Trump critic. He was indicted on eighteen counts of improperly retaining and transmitting national defense information. Prosecutors allege Bolton improperly retained classified information in his home and transmitted it, in the form of his personal diary entries, over non-secure email accounts to family members not authorized to have the information. Some of those emails allegedly were obtained by Iranian hackers.

Former Trump National Security Advisor John Bolton

Many, including Bolton himself, were quick to claim this was another example of a Trump critic being punished with an indictment. It’s true that Trump has repeatedly attacked Bolton and that the White House apparently was pushing for this case to be brought. But there are some important distinctions between the Bolton case and the cases against Comey and James.

The Bolton investigation was begun several years ago by the Biden Justice Department, not initiated by a Trump social media rant. The indictment was obtained and is signed by career prosecutors from both the Maryland U.S. Attorney’s Office and the National Security Division of the Justice Department. A judge previously signed off on a search warrant of Bolton’s home, finding probable cause there was evidence of a crime. The 26-page indictment goes into great detail about the alleged criminal violations and is much more typical of an indictment in a significant white collar case. The allegations appear to be serious and to state real crimes.

None of that means the Bolton prosecution will succeed. But I wouldn’t automatically lump it into the same category as the indictments of Comey and James. We need to be cautious about a knee-jerk reaction where any indictment of a Trump critic is automatically considered improper. That’s just the flip side of what Trump does: assume that any case against him must by definition be illegitimate.

But this is precisely the problem with what Trump is doing. Defendants in politically-charged cases have always claimed their prosecutions were witch hunts brought by political foes. Those claims historically lacked credibility because of DOJ’s independence and its track record of pursuing corruption cases without regard to politics.

Now Trump’s actions are making those kinds of claims plausible. When a defendant says he is being prosecuted for political reasons, why shouldn’t the public – and the jury – believe it? After all, we’ve now seen it happen in other cases. Even if the Bolton case is completely legitimate, Trump’s public targeting of his enemies casts a cloud over the prosecution and makes it suspect from day one. That lack of Justice Department credibility will carry forward into future prosecutions and even future administrations.

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The George Santos Case

On the “reward your friends” side of the ledger, Trump has once again exercised his power of Executive clemency to benefit a political ally, with no regard for the merits of the prosecution. George Santos, the disgraced former Republican Congressman and serial liar, was convicted of fraud and identity theft. He admitted to stealing money from campaign supporters by using their credit cards for personal expenses such as designer clothing and Botox injections. He also admitted falsifying campaign finance reports to qualify for funds from a Republican campaign committee.

Regular readers know we followed the Santos case on Sidebars in some detail. If you want a refresher on the case and the charges, you can find links to some of my earlier posts here:

Santos is a Republican and a die-hard Trump supporter. He had only served three months of his seven-year sentence when Trump decided last week to commute his sentence and release him from prison. Trump claimed the admitted fraudster was just a bit of a “rogue” and had been treated unfairly. He also praised Santos for having “the Courage, Conviction, and Intelligence to ALWAYS VOTE REPUBLICAN.”

A primary victim of Santos’s fraud was a Republican campaign committee. About a hundred Republicans joined in voting to expel him from Congress. None of that mattered. Santos is a Republican, a Trump supporter, and a white collar criminal. In Trump’s mind, by definition that means he must have been treated unfairly.

Trump loves the clemency power because it is his alone and is completely unreviewable. No doubt it makes him feel very powerful and important. But he has no appreciation or respect for the proper role of that power. Granting clemency to Santos is an outrageous act, one that will further erode the public’s faith in the rule of law. There’s no indication that Santos’s prosecution, guilty plea, and sentencing were unfair or unjustified.

When it comes to justice there is one set of rules for Trump and his allies, and another set of rules for everyone else. Again, nothing could be more antithetical to the justice system as we have known it.

The Damage Being Done to DOJ

There was also news last week that following the indictment of Letitia James, the Justice Department fired a supervisor in the Virginia U.S. Attorney’s Office who had concluded there was no basis to bring the case. One of her deputies was also fired.

This is just the latest in a long line of examples of career people at DOJ who refuse to toe the Trump line being fired or forced to resign. Trump’s Justice Department is gradually purging good career prosecutors and replacing them with loyalists like Halligan.

This is obviously a big problem for the Justice Department as an institution. It is losing people with decades of experience in prosecuting important, complex cases and replacing them with people whose primary qualification is slavish devotion to Trump. This brain drain is going to matter when DOJ is dealing not with show prosecutions like Comey and James but with real, serious cases involving defendants who seek to harm the United States. The Justice Department is purging the people with the institutional knowledge and practical experience to handle those cases. The country will suffer as a result.

In addition to losing people, DOJ is losing its credibility. The government has long enjoyed what is known as a “presumption of regularity.” Courts generally presume, absent clear evidence to the contrary, that government officials have properly discharged their duties. Courts also presume that government attorneys are acting in good faith and that their representations to the court can be trusted.

That hard-won reputation before the judiciary is a tremendous advantage for the government. When I was a federal prosecutor, my colleagues and I took the responsibility that came with the presumption of regularity very seriously. When you stood before a judge and announced you were appearing on behalf of the United States, you understood the obligation to be completely up front with the court. You knew your credibility was your most important professional asset and that you were responsible not only for your own credibility, but for the government’s.

The Trump administration is squandering that as well. The folks at Just Security have collected a long series of examples where courts have found that the Trump administration has failed to follow court orders, where attorneys have misrepresented facts, or where officials have failed to exercise their duties in good faith.

The presumption of regularity that was built up by generations of government attorneys has been wrecked by the Trump administration in less than a year. That’s a harm that extends not just to the Justice Department, but government-wide.

Still Some Guardrails

So yes, everything is awful. But we did see another example last week of the guardrails that still stand in Trump’s way as he attempts to corrupt the criminal justice system. On Thursday a D.C. federal jury found Sidney Reid not guilty of a misdemeanor charge of assaulting, resisting, or impeding a federal officer. It took the jury only two hours to reach a verdict following a three day trial.

The D.C. U.S. Attorney’s Office, headed by former Fox News celebrity Jeanine Pirro, had filed the misdemeanor charge (which does not require grand jury action) after it failed three times to get a grand jury to indict Reid on felony charges - itself a remarkable and humiliating event.

And after all that, the office couldn’t even convict Reid of a misdemeanor.

After her acquittal, Reid issued a statement:

Grand juries, judges and trial juries still stand as important safeguards against Trump’s abuses. Judges with life tenure, largely insulated from Trump’s wrath, will review the legal merits of cases such as those filed against Comey and James. Trial juries will have the ultimate word on whether prosecutors have proved their case beyond a reasonable doubt.

In the wake of the massive “No Kings” protest this past weekend, the Reid verdict is an important reminder that Trump is not all-powerful. His sycophants may be able to get an indictment (or, failing that, file misdemeanor charges), but he still can’t unilaterally convict someone or throw them in jail. The Republican Congress may have completely abdicated its role in the separation of powers, but the judicial branch and our Constitution and Bill of Rights still offer resistance.

As Reid said, despite the scary times we live in, that gives us some hope for the future.

On his first day in office he pardoned the January 6 Capitol rioters, sweeping aside the judgments of the criminal justice system in hundreds of cases in order to reward his supporters. His Justice Department ordered prosecutors to drop the corruption case against New York City mayor Eric Adams in exchange for Adams’ help enforcing Trump’s immigration crackdown. His attorney general Pam Bondi, who apparently skipped constitutional law class during law school, threatened to “go after” those who engage in “hate speech” - presumably defined as saying things the president doesn’t like. Bondi also created a “strike force” at DOJ to investigate Trump’s ridiculous allegation that former president Obama engaged in “treason” by trying to rig the 2016 election.

Now Trump has significantly escalated his weaponization of the Justice Department. Over the weekend he publicly demanded that Bondi expedite criminal prosecutions of Trump political foes NY Attorney General Letitia James, Senator Adam Schiff, and former FBI director James Comey. He forced out the respected career prosecutor heading the U.S. Attorney’s Office for the Eastern District of Virginia for concluding the evidence to prosecute James and Comey was lacking. Trump then installed as the interim U.S. Attorney one of his personal lawyers who has no prosecution experience but who clearly knows what the boss wants.

In a separate development, MSNBC broke the news that prior to Trump’s election in 2024 his current “border czar” Tom Homan was caught on tape accepting $50,000 in cash from FBI undercover agents posing as businessmen. In exchange Homan allegedly agreed to help them obtain government contracts after he became part of the new Trump administration. Prosecutors and the FBI wanted to pursue the investigation after Trump was elected, but his Justice Department shut it down.

Trump sees the criminal justice system as a tool he can use to punish his enemies and protect his friends. He does not even bother trying to conceal that fact — he trumpets it. It’s another way for him to intimidate those who would oppose him and reward those willing to do his bidding. It’s right out of the authoritarian playbook, and it’s scary and dangerous stuff.

Punish Your Enemies

Trump has made no secret of his desire to see his political foes prosecuted. He has particularly singled out James, who brought a massive civil fraud case against Trump and his company; Schiff, who led Trump’s first impeachment and later served on the House January 6 Committee; and Comey, the former FBI Director Trump fired and whom he blames for what Trump calls the “Russia Hoax.”

The former acting U.S. Attorney for the Eastern District of Virginia, Erik Siebert, is a respected career prosecutor. He was appointed to the position by Trump himself and was awaiting Senate confirmation. Despite pressure from the White House to prosecute Trump’s enemies, Siebert recently concluded there was not sufficient evidence to bring criminal charges against Letitia James or Jim Comey. This appropriate exercise of prosecutorial discretion was too much for Trump, who said of Siebert at a press conference, “I want him out.” Siebert resigned later that day.

Erik Siebert, former Acting U.S. Attorney for the Eastern District of Virginia (Ron Lamkey/AP)

On Saturday Trump unleashed his frustrations on Attorney General Pam Bondi in an astounding and unhinged social media rant that appears it may have originally been intended to be a private message to her:

As his post notes, Trump has appointed Lindsey Halligan to take Siebert’s place on an interim basis. Halligan is a former insurance claims lawyer in Florida who served as one of Trump’s personal attorneys during his Florida prosecution. Her most recent position was as a White House aide in charge of reviewing Smithsonian museums to scrub them of “woke” materials. She has no experience as a federal prosecutor. Presumably her primary qualification for the job is her willingness to do whatever Trump wants her to do.

One of the many extraordinary things about Trump’s post is the final lines, where he admits the reason he wants prosecutors to pursue his political enemies is that they impeached and indicted him. It’s all about personal grievance and retribution - never mind whether the facts and law actually support a prosecution (although he also opines, of course, that they are “guilty as hell”). Openly admitting that this is why he pushed Siebert out and replaced him with Halligan demonstrates that Trump has no clue about the proper role of the Justice Department – or that he just doesn’t care.

Firing career prosecutors who won’t do your political bidding and replacing them with people who will is an extraordinary breach of the historic independence of the Justice Department. As Ruth Marcus recently wrote in The New Yorker, it crosses the “reddest of lines.” For decades in the post-Watergate era, strong institutional norms and guidelines have sought to ensure that the White House is not involved in criminal prosecutions. After Nixon’s abuses the country recognized the extraordinary danger of allowing presidents to unleash the awesome power of the criminal justice system against their political foes.

But if there is one thing we’ve learned about Trump, it’s that he cares little about the norms that guided the country prior to his arrival. He not only tramples those norms but does so loudly and openly, inserting himself into the prosecution process. Instead of allowing criminal investigations to proceed outside of the public eye, he trumpets his demand for indictments and his personal conviction that his targets are guilty of something - it doesn’t really matter what.

It’s hard to convey what a fundamental violation this is of the core tenets of our criminal justice system. Prosecutors pursue criminal investigations based on the facts and the law, without fear or favor, and without regard to politics. For good prosecutors these are not mere platitudes; they become part of your professional DNA, your fundamental guiding principle. No one would claim this principle was always perfectly followed; there are bad prosecutors, and humans are flawed and fall short. But prior to Trump almost no one doubted the fundamental importance of this principle to our government integrity and the rule of law.

The damage Trump is doing to the Justice Department and to the public’s faith in the justice system is incalculable. As I’ve written before, to those of us who worked at DOJ and cherish the ideals for which it used to stand, watching all of this is heartbreaking. For everyone, it should be frightening.

One final point about the Halligan appointment: the Eastern District of Virginia is one of the most important U.S. Attorney’s offices in the country, not some backwater for Trump to fill with his lackeys. The Pentagon and the CIA, as well as numerous other military facilities, are located in that district. The office handles some of the most sensitive and complex national security cases in the nation. Placing that office in the hands of someone with no relevant experience is reckless and threatens our national security. If Trump nominates her for the permanent position, hopefully enough Senators will recognize that and block it - although the Senate’s track record so far when it comes to Trump nominees does not inspire confidence.

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Protect Your Friends

On the other side of the coin, we saw another example this week of how Trump is willing to manipulate the justice system to protect political allies. Veteran journalists Carol Leonnig and Ken Dilanian reported at MSNBC that last year the FBI recorded Trump border czar Tom Homan accepting $50,000 in cash from undercover agents posing as businessmen. In return, Homan allegedly promised to help them obtain government contracts once he received an anticipated appointment in the new Trump administration. Reportedly the cash was handed over in a bag from the Cava restaurant chain.

The Public Integrity section at the Justice Department got involved in the case, and prosecutors and agents decided to wait to see if Homan would follow through once he was in the government. But once they were in office, Trump DOJ officials and his FBI director Kash Patel shut down the investigation.

In response to the story, Patel and Deputy Attorney General (and Trump’s personal defense attorney) Todd Blanche said FBI agents and prosecutors had reviewed the investigation and had found “no credible evidence of criminal wrongdoing.” A White House deputy press secretary said the investigation was “blatantly political” with “no evidence of illegal activity,” and was simply another example of the Biden administration targeting Trump officials.

Some analysts and Trump allies are claiming a prosecution would have failed because Homan was not yet a public official at the time, or because there was no clear quid pro quo. It’s true the federal bribery statute requires that the bribe recipient be a public official or at least have been formally nominated. But that’s not necessarily the end of the inquiry. These facts could support a charge of conspiracy to commit bribery: an agreement to perform official acts in the future in exchange for bribes, once the official is appointed. In a conspiracy charge the crime is the agreement to engage in some future criminal activity. It doesn’t matter whether the future crime ever actually takes place; the conspiracy crime is the agreement itself.

There was a very similar case that arose as part of the Wedtech scandal during the Reagan administration. Eugene Wallach, a friend of Attorney General Ed Meese, accepted money from Wedtech in exchange for his promise that Wallach would advocate for Wedtech before the government after Meese appointed him to a senior Justice Department position. That would violate 18 U.S.C. 203, a cousin of the federal bribery statute. It turned out Wallach never got the appointment, but his conviction for conspiracy to violate section 203 was upheld by the Second Circuit. Adhering to textbook conspiracy law, the Court held that it didn’t matter whether Wallach actually violated 203 or even whether it was ultimately possible for him to do so. The conspiracy charge requires only the agreement to commit a crime in the future and at least one overt act taken in furtherance of that agreement.

I’m not saying the case would necessarily be a slam-dunk. Much would depend on exactly what Homan said and what he agreed to do in exchange for the cash. There could be issues under the Supreme Court’s McDonnell decision about whether he agreed to perform “official acts” within the meaning of the bribery statute, and that could be further complicated by the fact that it was unclear what his government position would be. There could be a legal defense to conspiracy if only Homan and the undercover agent were involved, because then there is no true agreement. All of that may be why prosecutors chose to wait until after Homan was actually appointed rather than charging him right away, so they could conduct additional investigation and potentially strengthen the case.

But - “no evidence of illegal activity?” Give me a break. Legitimate business transactions are not typically conducted by exchanging fast food bags full of tens of thousands in cash. That fact alone is significant evidence of corrupt intent. It certainly would be more than enough to justify further investigation. In the ordinary course of an investigation like this, once Homan was in office you’d have the undercover officer take another run at him to see if he’s willing to follow through. Instead the Trump DOJ chose to sweep it all under the rug – and someone involved in the prosecution apparently was upset enough to go to the press.

On Monday the White House took a new tack and denied that Homan even took the money. But reportedly the exchange is on tape. If the White House is telling the truth, it would be easy to prove it by releasing the tapes, as Congressional Democrats are now demanding. I won’t be holding my breath.

Still Some Guardrails

Even if Halligan ends up trying to indict the cases that Trump is demanding, she will face some hurdles. Grand juries have been refusing to indict frivolous or trivial cases brought by Trump’s DOJ. That could happen here as well.

Halligan could also face another mass resignation event like the “Thursday Afternoon Massacre” in New York, where a number of prosecutors resigned rather than agree to dismiss the case against New York Mayor Eric Adams. Indicting a case when there is insufficient evidence of criminal conduct violates a prosecutor’s ethical obligations. Individual prosecutors must consider their oaths of office and even the risk to their own bar licenses. With no prosecution experience Halligan is not going to know where the grand jury room is, much less how to obtain an indictment. She will need help. We could see a number of the career people at the Eastern District follow Siebert’s example and resign rather than agree to seek such indictments.

Even if the cases are indicted, they will have zero credibility with the court or the public after this series of events. The defense will move to dismiss the charges based on legal doctrines such as vindictive or selective prosecution, and Trump’s own social media posts will be Exhibit 1. Even if the cases manage to get to trial, proving guilt beyond a reasonable doubt to a unanimous jury will undoubtedly be extremely difficult. The trial jury always stands as a final check against the abuse of prosecutorial power.

But all of that is not much comfort to the person who is wrongly investigated or indicted. They still suffer reputational and emotional damage and are forced to spend significant time and money defending themselves. Simply being subject to investigation and indictment is a tremendous harm – which of course is precisely the point. As one person close to Trump reportedly and remarkably said, even if they can’t secure indictments or convictions “the process is the punishment.”

I always tell my students that the ability to launch a grand jury investigation is the ability to ruin someone’s life. Prosecutors are entrusted with awesome power that must be exercised responsibly. Unfortunately we are now seeing what that power can do in the hands of a president willing to wield it as a political weapon.

As I’ve written before and will discuss more below, I’ve always believed these critics are wrong. And now the Trump administration is learning the hard way that grand juries actually can act as a crucial check on prosecutorial power.

D.C. Grand Jurors Refuse to Indict

Recently my old office, the U.S. Attorney’s Office for the District of Columbia — headed by former Fox News host, election denier, and Trump sycophant Jeanine Pirro (it still pains me to write that) — asked a federal grand jury to indict Lori Reid for felony assault on a law enforcement officer.

Reid was involved in a scuffle with FBI agents who were transferring two prisoners from the DC jail into the custody of ICE. Reid was protesting and filming their actions, and officers allege she tried to impede their progress as they left the jail. An officer told her to step back and pushed her against a wall. Reid resisted and in the minor tussle that followed an FBI agent’s hand was pushed against a concrete wall, resulting in some minor abrasions. (I’ve seen the pictures, and I’ve gotten worse injuries working in my yard or playing with my dog).

Pirro’s office presented these facts to a D.C. federal grand jury and asked them to indict Reid for assaulting, resisting, or impeding a federal officer, a felony punishable by up to eight years in prison. When the grand jury refused, prosecutors tried again with a second grand jury. And then with a third. Each grand jury refused to return the indictment sought by prosecutors.

Pirro’s office said they will now charge Reid with a misdemeanor, which is punishable by a maximum of one year in prison and does not require a grand jury indictment.

Then this past Tuesday prosecutors from the same office failed to convince a grand jury to indict Sean Dunn, who famously threw a Subway sandwich at a Customs and Border Protection officer a couple of weeks ago while protesting the officer’s presence in the city. A video of the incident went viral on social media and Dunn became something of a folk hero. Pirro made a big point of talking tough about Dunn and saying her office will come down hard on anyone who interferes with law enforcement in D.C. Prosecutors charged him with felony assault and had him arrested.

Once again, the grand jury refused to indict. This news set off a predictable flurry of “ham sandwich” jokes among attorneys and commentators on social media:

(For what it’s worth, reportedly the Subway sandwich was salami.)

Prosecutors can try again, as they did with Reid – there is no bar on presenting a case to another grand jury if one grand jury refuses to indict. Or they may just decide to charge Dunn with a misdemeanor as well.

These failures to obtain indictments are – or at least should be – humiliating setbacks for the Justice Department. So what’s going on?

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The Federal Grand Jury

The Constitution requires that every federal felony be indicted by a grand jury. This safeguard was inherited from the British legal system, where it dates back to the Magna Carta in the 13th century. To prevent the king from arbitrarily locking up people for improper reasons, British law required the Crown to present its evidence to a panel of residents of the local community to establish that criminal charges were justified. The case could only proceed if that group of citizens, the grand jury, approved the charges.

Recently free from the rule of an oppressive monarch, the framers of our Constitution built this same protection into our own Bill of Rights. The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .

The Supreme Court has interpreted “infamous crime” to mean any felony.

Federal prosecutors can have people arrested for felony charges, but to proceed with the case they must obtain an indictment from a grand jury. A grand jury, like a trial jury, is made up of residents of the district where the alleged crime was committed. It usually has 22-23 members, and a quorum of 16 must be present in order for it to conduct any business. Unlike a trial jury that hears a single case, a federal grand jury typically sits for 18 months and hears evidence in many different cases.

Prosecutors seeking to pursue felony charges present their evidence to a grand jury in their district. When a grand jury votes to indict a case, it’s called a true bill; when it refuses to indict, it’s called a no true bill.

No True Bill

It’s hard to over-emphasize how rare it is for a grand jury to return a no true bill when prosecutors ask for an indictment. It almost never happens. In my twelve years as a prosecutor in that same D.C. U.S. Attorney’s Office I never had a grand jury return a no true bill. Ask any current or former federal prosecutor you know and they likely have had the same experience.

This is true for several reasons. First, the standard for returning an indictment is low: the grand jury need only find probable cause to support the charges, not the much more stringent proof beyond a reasonable doubt required for conviction at trial. Unlike a trial verdict the vote to indict need not be unanimous; only twelve grand jurors out of a minimum of 16 present need to find probable cause. And the grand jury typically hears only the government’s side of the case. The defendant is not allowed to present any evidence or arguments to the grand jury but must save those for trial.

When federal prosecutors ask a grand jury for an indictment, they almost always get it. But contrary to the claims of grand jury critics, that doesn’t mean the grand jury serves no real purpose and is simply a rubber stamp for the prosecutors. The requirement of grand jury approval means many weak or unjustified cases get weeded out during the investigative process and the prosecutor ends up never asking for an indictment at all. That’s why statistics about how often grand juries agree to return an indictment don’t tell the whole story.

The discipline of the grand jury process means prosecutors must investigate their case, assemble their evidence, and present it in a coherent fashion to the grand jurors. In that process they sometimes realize they have no provable case or that the case should not result in felony charges. It also allows prosecutors to hone and refine their case, so that some charges may be dropped even if others proceed. The grand jury thus still serves as an effective shield; it prevents the government from simply running out and quickly filing felony charges on its own.

If a case proceeds to the point where prosecutors acting in good faith ask for an indictment, it means they believe they have sufficient evidence to convince a unanimous trial jury of the defendant’s guilt beyond a reasonable doubt. Given that, it’s not surprising that the much lower, non-unanimous probable cause standard in the grand jury, which hears only the government’s side of the case, is almost always met.

I explored these arguments and the nature of the grand jury process in much more detail in an early post on this blog. If you are interested, you can find that here.

The other reality is that experienced prosecutors acting in good faith weed out cases like these before they ever get to the grand jury stage. When I was in the office the Reid and Dunn cases almost certainly would have been charged as misdemeanors from day one, if we charged them at all. There would never be a grand jury proceeding, so there would be no need for the grand jury to reject the case.

But prosecutors acting under the direction of Pirro and Attorney General Pam Bondi apparently are no longer allowed to be guided by principle and sound prosecutorial practices. So it’s been up to the grand jurors, as the voice of the community, to inject some common sense into the process - and they are coming through. Grand jury proceedings are secret so we don’t know exactly why they returned these no true bills. But it certainly appears the grand jurors are sending a message to prosecutors about the ridiculous over-charging in these cases.

Checks and Balances

The recent D.C. cases are not the only ones where grand jurors are resisting DOJ’s excesses. The U.S. Attorney in Los Angeles also has been pushing hard for felony charges for those protesting the actions of federal immigration officials. But grand juries there also have been refusing to indict, and many of the cases have ended up as misdemeanors.

There’s a good chance that in just a few short months the Bondi Justice Department has already set a record for the number of no true bills returned by federal grand juries during an administration. It’s not a record of which they should be proud.

Prosecutors may make repeated attempts to secure an indictment from a different grand jury if one rejects the case, as they did with Reid. But a reasonable prosecutor would pause and consider: if you can’t convince a bare majority of grand jurors to find probable cause after hearing only your evidence, how will you ever convince a trial jury that hears both sides of the case to unanimously find guilt beyond a reasonable doubt? That’s how you’d think about it in a normal Justice Department, anyway. And at that point, a reasonable prosecutor would move on.

Unfortunately in this administration, as we have seen, reasonable prosecutors are not in charge.

Prosecutors also may proceed with misdemeanors, which do not require approval of the grand jury. But there is no guarantee they will obtain convictions even on those lesser charges. Even a misdemeanor conviction requires proof beyond a reasonable doubt. The actions of the grand jurors clearly indicate that members of the community have some deep misgivings about these prosecutions. If these misdemeanor cases go to trial, I’d expect to see some acquittals.

Despite these setbacks, there’s no sign the Justice Department is backing down. On Tuesday a man was arrested and charged with felony assault for allegedly spitting on two National Guard officers in D.C. A felony? Seriously? What’s the charge, Assault with Deadly Saliva? If prosecutors move forward, this case seems destined to result in another no true bill.

With a spineless Republican Congress and compliant Supreme Court, the checks on Trump’s power are relatively few. But the Constitutional right to a grand jury indictment is not something Trump can simply abolish by Executive Order. And right now the grand jury is serving as an important check against some of the worst excesses of his Justice Department.

It may be a relatively small bit of good news. But just imagine if Trump’s DOJ could indict and pursue felony charges based solely on Trump’s grievances, or on the whims of over-zealous prosecutors seeking to please him.

Let’s be grateful for the wisdom of the framers — and for the critical role of the much-maligned federal grand jury as a safeguard against government abuse of power.

DNI Tulsi Gabbard at a White House news conference (Eric Lee/Bloomberg via Getty Images)

Attorney General Pam Bondi quickly fell in line, announcing that the Justice Department would form a “strike force” to investigate the allegations. (This phrase brought to mind Trump’s 2020 “elite strike force” of attorneys assigned to investigate the false allegations of election fraud after his loss to Biden. Most of those attorneys ended up being criminally charged, disbarred, or both.)

Not to be outdone, Republican Senators Lindsey Graham and John Cornyn called for the appointment of a special counsel to investigate the allegations. Trump himself responded by accusing Obama and other officials of treason, a crime punishable by death, and shared a fake video of Obama being handcuffed in the Oval Office and sent to prison. “He’s guilty,” Trump said of Obama. “This was treason. This was every word you can think of.”

These allegations are so flimsy and ridiculous that I debated whether they are even worth writing about. The timing of resurrecting these events from nine years ago strongly suggests this is simply a transparent effort to change the subject and distract the public and media from the ongoing scandal involving the administration’s handling of the Jeffrey Epstein files. “Obama! Hillary! Comey!” — when in trouble, Trump always rolls out his greatest hits to fire up the base.

But despite how frivolous they are, the allegations predictably are now playing nonstop on Fox News and in right-wing social media, and are being repeated in more mainstream media by Trump’s allies. So in case you need something to show your MAGA relative who says he saw that Obama was recently charged with treason – here you go. Godspeed.

More seriously, even though the allegations are baseless, what they represent is something real and dangerous: Trump’s willingness to use the criminal justice system to “go after” – in his own words – his political enemies. As I’ve written before, it’s ironic that Trump routinely claims the justice system was “weaponized” against him. In reality, it’s under the current Trump administration that the true weaponization of the DOJ has begun.

Gabbard’s Misleading Memo About the “Russia Hoax”

Graphic used by Gabbard during her announcement

The memo released by Gabbard first summarizes various intelligence findings leading up to and shortly after the 2016 election. These reports generally concluded that Russia did not interfere with the election results by using cyber attacks to tamper with voting machines or otherwise manipulate the actual vote counts.

The memo then says that on December 9, 2016, the Obama White House convened a meeting of senior intelligence officials regarding Russian meddling in the election. It was already known at that time that Russia had hacked the Clinton campaign and Democratic National Committee and stolen files from them. Before leaving office, President Obama wanted a full report on the details of Russian interference in the election, including Russia’s methods and goals. (Presumably, and reasonably, the administration feared that once Trump took office he would have little interest in conducting such an investigation.)

The resulting Intelligence Community Assessment (“ICA”) was assembled quickly and released shortly before Trump took office. It concluded that Putin had conducted an influence campaign involving the 2016 presidential election with the goals of undermining U.S. faith in the democratic system, denigrating Hillary Clinton, and damaging her campaign. The report also concluded that Putin had a clear preference for Trump and aspired to help him win the election.

Gabbard charges that, based on Obama’s directive at the December 9 meeting, the various intelligence agencies altered their earlier findings. Whereas before they had said Russia did not interfere, in the final ICA they concluded that Russia did in fact meddle in the 2016 election. She claims officials also leaked these false claims to the press, resulting in news reports that Russia sought to tip the election to Trump. This “treasonous conspiracy” to undermine Trump’s victory, she claims, ultimately led to the Mueller investigation, two impeachments, and pretty much everything else bad that happened to Trump during his first term.

The most fundamental problem with Gabbard’s report and referral is that she misleadingly conflates two different types of findings. The first set of findings related to whether Russia had the desire and ability to interfere with the election by hacking election infrastructure and actually altering the vote counts. The intelligence community concluded that did not happen. That conclusion stands today, and no reasonable person or agency argues that Russia actually manipulated the vote count.

(By contrast, as you’ll recall, it was the Trump administration, following his loss to Joe Biden in 2020, that embraced wild conspiracy theories about vote counts being altered in Biden’s favor by rigged voting machines or Italian military satellites - none of which were true. It’s remarkable how, once again, every accusation by this administration is really a confession.)

The second set of findings, embodied in the ICA, related to Russia’s efforts to influence the election through phony social media campaigns, the theft and release of emails from the Clinton campaign, and other efforts. Again, those conclusions still stand, and have been corroborated by multiple investigations. Special Counsel Robert Mueller (appointed by the first Trump administration) ultimately indicted about two dozen Russian intelligence agents for seeking to influence the election through computer hacking, releasing stolen documents, phony social media campaigns, and other efforts.

In addition, the Senate Intelligence Committee, which was headed by Republicans and chaired by Marco Rubio, Trump’s current Secretary of State and National Security Advisor, released a five-volume report in 2020 on the Russian meddling. It said it had found “irrefutable evidence” of these Russian efforts to interfere in the election, while also saying it found no evidence that any votes were actually altered.

Gabbard’s referral misleadingly suggests that after the (still correct) intelligence conclusions that Russia had not hacked actual voting machines to alter votes, Obama pressured intelligence officials to alter their findings. They then reached the (also still correct) conclusion that Russia had sought to meddle in the election by other means. But this wasn’t an alteration of the findings, directed by Obama to undermine Trump’s victory. It was two different types of findings - both of which are still valid.

Obama’s office made this point when it issued a rare statement in response to the allegations:

Out of respect for the office of the presidency, our office does not normally dignify the constant nonsense and misinformation flowing out of this White House with a response. But these claims are outrageous enough to merit one. These bizarre allegations are ridiculous and a weak attempt at distraction. Nothing in the document issued last week undercuts the widely accepted conclusion that Russia worked to influence the 2016 presidential election but did not successfully manipulate any votes.

Exactly. Gabbard’s release doesn’t alter that conclusion — but it does seek to muddy the waters through misleading claims.

Gabbard’s “New” Evidence

Most of the information in Gabbard’s memo is not new. But the released information does include a couple of newly-declassified 2020 reports, one from the CIA and one from Republicans on the House Intelligence Committee, as well as a more recent review ordered by Trump’s CIA Director John Ratcliffe. These reports fault the CIA for giving too much credence in 2016 to reports that Putin’s goal was to help Trump win the election, although the reports do not otherwise dispute the findings about Russian interference.

In other words, the released reports agree that Russia meddled in the election to undermine faith in democracy and damage Hillary Clinton. They just argue there was insufficient intelligence to support the third conclusion of the ICA: that Putin wanted Trump to win. Gabbard claims that adoption of this apparently thinly-sourced conclusion about Putin’s motive is the key to the entire “treasonous conspiracy” to bring down the president.

But as the recent CIA review itself noted, even if the conclusion about Putin’s desires was not based on strong intelligence, it was a reasonable inference from all the evidence. In a two-candidate race, hurting Clinton necessarily equates to helping Trump win. And there is no question the Russians sought to hurt the Clinton campaign, including by hacking her campaign emails and giving them to Wikileaks – which began releasing them just as the “Access Hollywood” tape scandal exploded and threatened to sink Trump’s candidacy.

Perhaps, as the reports suggest, Putin was actually indifferent to who won the race. Or perhaps, like many people, he assumed Trump had no chance and his goal was just to dirty up the incoming Clinton administration as much as possible. Regardless, it is undisputed that Putin intended to, and did, interfere in the election in ways that hurt Trump’s opponent - which, by definition, helped Trump.

Although this wasn’t known at the time the ICA was prepared, Putin himself has since said he did indeed want President Trump to win the election. So even if the criticism of the conclusion based on the strength of the intelligence at the time is valid, the conclusion was in fact correct. Yet Gabbard suggests that including this ultimately correct conclusion about Putin’s motives was somehow the key to a conspiracy to undermine the entire Trump presidency.

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Special Counsel? Been There, Done That

The calls for a special counsel by Trump sycophants Senators Graham and Cornyn are particularly shameful. They are eager to please Trump by agreeing that golly, yes, there sure seems to be a scandal here that needs to be investigated!

They must have forgotten that we already did that. Remember this guy?

Former special counsel John Durham

John Durham was a special counsel, appointed by Trump to investigate “Russiagate” and allegations of criminal misconduct surrounding the investigation of the Trump campaign for possible ties to Russia. Durham was charged with investigating the following:

whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump . . . .

Sure sounds like it would cover these “new” allegations, doesn’t it?

After a more than three-year investigation, Durham released his report in May 2023. Although he was critical of certain FBI practices and steps taken during the investigation into Russia and the 2016 campaign, he found nothing to support any criminal charges related to that investigation. The only conviction resulting from his investigation was a guilty plea to a misdemeanor by an FBI lawyer who admitted altering an email related to a warrant application. Durham prosecuted two men for allegedly lying to the FBI; both of those flimsy cases ended in embarrassing acquittals. He charged no one in the FBI, or any other intelligence official, with any crimes related to the gathering or use of intelligence about the 2016 election — the crimes that Gabbard is now alleging.

Gabbard apparently believes that during his wide-ranging investigation Durham somehow missed her “overwhelming evidence” of a conspiracy to undermine Trump by manipulating the Russia intelligence. Or maybe he covered it up and is part of the conspiracy himself?

Where’s the Crime?

Let’s assume that the assertion in the ICA that Putin wanted Trump to win lacked sufficient support. How does that translate into a criminal conspiracy? Gabbard leaves us guessing.

Try to follow the red strings connecting the dots here: By examining the extent of Russian meddling in the election, Obama supposedly was seeking not to understand what happened and to help prevent future meddling but to undermine Trump’s presidency. This conspiracy continued after Obama and his administration were out of office and out of power — apparently they were still pulling the strings. It somehow led to the appointment – by Trump’s own DOJ – of a special counsel, and to two impeachments for events completely unrelated to the 2016 election. And in the meantime, virtually all of the underlying facts that supposedly were invented by this treasonous conspiracy have been independently verified by Senate Republicans and a Trump-appointed special counsel.

So how did this conspiracy operate, exactly? No one knows. The Deep State works in mysterious ways. But you know what they say about a good conspiracy theory: if you can’t find any evidence that it’s true, that just proves how good the conspirators were at covering their tracks.

And what exactly is the alleged crime and how was it supposedly committed? Gabbard didn’t spell that out or cite any statutes that were allegedly violated, saying she would leave that to DOJ. Conspiracy is a crime, but it must be a conspiracy to commit a recognizable offense, and none is apparent here.

Treason is also a crime, of course, but it requires levying war against the United States or giving aid and comfort to its enemies. Gabbard didn’t explain how an alleged mistake in an internal intelligence report gives aid and comfort to our enemies. Perhaps her definition of “treason” is doing anything that is critical of or embarrassing to president Trump. (That may, in fact, be Trump’s definition.)

Oh, and by the way – if this were a true criminal investigation, you wouldn’t announce it by issuing a report describing your evidence and holding a press conference. That’s not how criminal investigations work; you generally don’t say anything public unless and until there is an indictment, and certainly don’t publicly discuss your evidence before the investigation even begins. Rolling out the accusations through a press event just further highlights that this is political, not criminal.

I hesitate to even touch on these next points, because merely discussing them risks dignifying the suggestion that there were potential crimes here. But most of these events took place eight or nine years ago - well outside the standard five-year statute of limitations. How exactly would they be prosecuted? And thanks to president Trump and the Supreme Court, Obama would almost certainly be immune for any of the alleged actions, even if they were criminal.

The Real Danger: Abuse of the Justice System

Image posted by Trump on social media

Despite how ridiculous these allegations are, they do represent something more serious and dangerous. They follow other criminal referrals of former Obama officials such as FBI Director James Comey and CIA Director John Brennan for vaguely-alleged crimes related to Trump investigations. In his second term Trump, surrounded by pliant officials at DOJ and the FBI, has no hesitation about using the criminal justice system to score political points and pursue perceived political enemies. These allegations and investigations aren’t based on the facts and the law, but on Trump’s political goals and personal grievances. Trump and his administration are using the power of the federal criminal justice system to serve the interests of one man: Donald Trump.

Trump’s failed nominee to be the U.S. Attorney for D.C, Ed Martin, is now the head of the “weaponization working group” at DOJ. He recently said that even if investigations did not find any criminal conduct, they could still be used to name and shame the subjects of their inquiries. That is not, of course, the role of the criminal justice system, but that is now the norm at Trump’s Department of Justice.

There is zero chance that any of these allegations will result in a provable criminal case that would sustain a conviction. But that doesn’t mean Trump and his DOJ can’t make life miserable for the targets of the allegations by conducting lengthy investigations, forcing them to hire attorneys, and continuing to make public accusations about their supposed misconduct to score political points.

These are the characteristics of an authoritarian regime, not of a constitutional system governed by the rule of law. Trump’s corruption of the justice system is the real scandal here.

Along with the Epstein files, of course. Ask your MAGA relative why those haven’t been released.

Now Trump wants Bove to have a lifetime seat as a federal appellate judge. The Senate Judiciary Committee is set to vote this week on whether to advance his nomination to the full Senate.

Bove doesn’t belong anywhere near the federal bench. His previously-known actions in his first months at the Justice Department alone should be disqualifying. But now new allegations from a DOJ whistleblower detail Bove’s leading role in the Trump administration’s defiance of federal court orders in furtherance of Trump’s immigration agenda.

Bove’s primary qualification, in Trump’s eyes, is his unwavering loyalty to Donald Trump. But someone with so little regard for the rule of law has no business being a federal judge.

Emil Bove at his judicial confirmation hearing

Bove’s Actions Related to January 6

In the early days of this Trump administration, as acting Deputy Attorney General, Bove was instrumental in the firing of prosecutors who worked on cases against the January 6, 2021 Capitol rioters. These attorneys were told they could not be trusted to carry out “President Trump’s agenda,” based on their work on those cases.

Bove also ordered the firing of a half-dozen senior FBI officials who had been involved in the January 6 prosecutions. He claimed the FBI had participated in a “grave national injustice” perpetrated on the American people by pursuing cases against those involved in the Capitol riot.

Bove also has admitted advising Trump on one of his most outrageous early actions as president: the pardoning of all January 6 defendants, including those who assaulted law enforcement officers and those who were found guilty of seditious conspiracy.

The firings of prosecutors and others who worked on the January 6 prosecutions have continued. Along with the pardons, these personnel actions are part of an effort to rewrite the history of January 6 by suggesting these professionals engaged in misconduct and that the rioters were the true victims. In reality, these convictions were upheld by multiple federal judges — including Trump appointees — and through the verdicts of scores of juries. These were righteous prosecutions of individuals guilty of a grave assault on our democracy.

Bove led a politically-motivated purge of law enforcement professionals who were simply doing their jobs on behalf of the nation, and doing them very well. This willingness to retaliate on Trump’s behalf against honorable employees of his own Justice Department and to whitewash what happened on January 6 should be disqualifying.

Bove’s Role in the Thursday Afternoon Massacre

Bove also played a key role in the administration’s decision to dismiss the corruption prosecution of New York mayor Eric Adams. In early February, in a remarkable memo to New York prosecutors, Bove instructed them to drop the case. He said dismissal was warranted because the prosecution was interfering with Adams’s ability to help the Trump administration implement its immigration agenda and that the timing of the indictment suggested it had been politically motivated.

This order led to a sequence of events I’ve dubbed the “Thursday Afternoon Massacre.” The acting U.S. Attorney for the Southern District of New York resigned rather than carry out what she considered to be an improper order. She noted in her resignation that the dismissal appeared to be an improper quid pro quo in exchange for Adams’s agreement to help with the administration’s immigration enforcement plans in New York. About a half-dozen other prosecutors at the Justice Department’s Public Integrity Section and the Southern District of New York also subsequently resigned rather than follow the corrupt order to drop the case.

Bove then reportedly assembled the remaining members of the Public Integrity Section and threatened that if one of them didn’t agree to sign the motion to dismiss the case they all would face disciplinary action, including possible firing. One career attorney who was near retirement ultimately agreed to sign the motion in order to save his colleagues.

At the subsequent hearing on the motion before federal judge Dale Ho, Bove appeared alone to argue the case — something unheard of for a Deputy Attorney General and suggesting that no one else was willing to make the argument. Judge Ho ultimately dismissed the case, noting that he could not force the government to prosecute. But he dismissed it with prejudice — meaning the charges cannot be refiled — rather than without prejudice as the government had requested, which would have allowed the administration to continue to hold the charges over Adams’s head. In his blistering opinion, Ho said he agreed the dismissal appeared to be part of a corrupt deal between Adams and the administration. He also found, contrary to Bove’s representations, there was absolutely no evidence prosecutors had done anything improper by bringing the case.

Bove demonstrated total disregard for the rule of law and the role of the Justice Department by dropping a criminal case for political reasons. He also tried to coerce DOJ attorneys to make arguments they considered false and unethical, compelling a number of them to resign in protest. Once again, these actions should disqualify him from a federal judgeship.

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Bove to the Courts: “Fuck You”

In any normal political time, these actions alone would be enough to sink Bove’s nomination for a lifetime appointment to the federal bench. But new revelations from a DOJ whistleblower also outline Bove’s leading role in the Trump administration’s deliberate defiance of the very federal judiciary that Bove now wishes to join.

The whistleblower is Erez Reuveni, a 15-year veteran DOJ prosecutor. He was recently fired for committing the sin of telling a federal judge the truth: that Kilmar Abrego Garcia was deported to El Salvador’s CECOT prison by mistake. Garcia was one of more than 200 Venezuelan immigrants the administration shipped off to the notorious prison. But pursuant to a 2019 court order, Garcia had the right to stay in the United States. During a court hearing, Reuveni candidly, and properly, told the court that Garcia should not have been among those deported. He then resisted demands from his superiors that he describe Garcia as a terrorist, saying there was no evidence to support that claim. He was fired a short time later.

Reuveni’s whistleblower complaint contains a great deal of damaging information about the administration’s deportation of those immigrants and defiance of the courts — and about Bove’s leadership of those efforts. The complaint discusses a meeting at DOJ in mid-March, after the administration decided to rely upon the Alien Enemies Act to deport the Venezuelan immigrants. At that meeting, Reuveni reports, Bove said the deportations were a “highest priority” for the president and that the planes with the Venezuelans would be taking off in the next 24-48 hours “no matter what.” Then, in the biggest bombshell in his complaint, Reuveni reports that Bove said if they were confronted with a court order to halt the deportations, they would need to consider telling the court, “Fuck you,” and continuing anyway.

As it turned out, that’s exactly what happened. During an emergency hearing as the flights were about to take off, Chief Judge Boasberg of the U.S. District Court for the District of Columbia ordered that the deportations be halted and that any planes already on their way be ordered to turn back. The government defied that order, the planes landed, and the immigrants were sent to the supermax prison. (In response to the judge’s order, the president of El Salvador posted on X, “Oopsie - too late,” with a laughing emoji. That post was re-tweeted by U.S. Secretary of State Marco Rubio.)

The Trump administration has sought to discredit Reuveni’s allegations, portraying him as a disgruntled former employee and falsely claiming he is a Democrat (he in fact is not registered with any political party). But Reuveni had previously defended unpopular Trump immigration policies, including the “Muslim ban” during Trump’s first term. The Trump administration itself had given him commendations and promoted him only weeks before firing him. He’s not some liberal squish or deep-state plant. He was a career prosecutor in the best traditions of DOJ: making good-faith arguments on behalf of the policies of both Republican and Democratic administrations over a career that spanned both. But until the current Trump administration, he says, he had never been asked to lie in court or defy a court order.

In response to the administration’s denials, Democratic Senator Dick Durbin released a trove of emails and text messages Reuveni had supplied in support of his complaint. They include text messages between Reuveni and a colleague while they are listening to a hearing before Judge Boasberg where Reuveni’s supervisor, Drew Ensign, tells Boasberg he does not know whether the flights to El Salvador are planned that weekend. They text in real time about how Ensign appears to be lying, noting that this may mean they are indeed about to say “Fuck you” to the judge (Reuveni is in blue):

Later in the evening, after the planes had landed in El Salvador and offloaded the immigrants in defiance of the judge’s order, Reuveni recognized what was at stake:

These references in the text messages between Reuveni and his colleague would make no sense if the earlier meeting, where saying “Fuck you” to a judge was discussed, had never taken place. Saying you are reaching a “decision point” on the question indicates there was an earlier time where that question was discussed.

The released documents also show that the directive to disregard the judge’s order to turn the planes around reportedly came from Bove himself. Yaakov Roth, acting head of the Civil Division, wrote in an email that Bove had told Homeland Security the night of the hearing that “the deplaning of the flights that had departed US airspace prior the court’s minute order was permissible under the law and the court's order.”

(For a good breakdown of the text messages and other evidence and how they relate to the timing of the hearing before Boasberg and events surrounding the flights, see this post from Chris Geidner at Law Dork.)

In short, there is compelling evidence to back up Reuveni’s allegations. These actions render Bove completely unfit for a seat on the federal court of appeals. The rule of law in this country depends on an executive branch that recognizes the authority of the federal courts. The courts have no way physically to enforce their orders. If the executive branch is willing to ignore the courts and act however it sees fit, then our constitutional system has truly broken down and we are in an authoritarian state. Bove, it appears, is not only untroubled by that prospect but is happy to help bring it about.

A Convenient Lapse of Memory

At Bove’s confirmation hearing, Senator Adam Schiff asked him if he had ever said the Justice Department should consider telling the courts “Fuck you” if ordered to halt the deportations. Bove replied that he did not recall.

As Schiff pointed out, if you are a sworn DOJ official and member of the bar who suggested that federal prosecutors should consider saying “fuck you” to the federal courts, that seems like something you’d remember. Any senior DOJ official should be able emphatically to deny that they would ever suggest willful defiance of a court order. Saying “I don’t recall” is a dodge that is as good as an admission.

The administration has tried to argue it technically did not violate the court’s orders because the planes had already left U.S. airspace, or because it was initially only a verbal order, not written. In response to Reuveni’s allegations, Attorney General Pam Bondi also has claimed that “no one was ever asked to defy a court order.” Bove himself testified at his confirmation hearing that he “did not advise any Justice Department attorney to violate court orders.”

But that’s too cute by half. Reuveni’s complaint never says there actually was such a direct order. He says there was a meeting where Bove suggested they might need to go that route — a suggestion that was met with stunned silence by the others in the meeting. And the evidence indicates that when the time came, Bove took action to defy the order himself by falsely telling Homeland Security they were clear to proceed. Perhaps Bove feared another mass resignation event if he ordered others to do his dirty work again.

For his part, Judge Boasberg doesn’t appear to have much doubt. He says there is cause to believe the administration intentionally violated his order and could be held in contempt. He issued an order to show cause, which for now has been stayed by the D.C. Circuit.

Bove was a leader in the decision to defy the court’s order by allowing the planes to land and deliver the prisoners. If he is confirmed, there is a very real possibility that the newest judge on the Third Circuit will end up as a defendant in a contempt of court proceeding in the District of Columbia.

A Silver Lining - Sort Of

For all these reasons, it should be obvious that Bove has no business being a federal judge. The Senate should resoundingly reject his nomination. Regardless of party, everyone should recognize that an individual who has shown such contempt for the rule of law and the proper functioning of the justice system should not be honored with a lifetime seat on a federal court of appeals.

But all that being said, it’s probably too much to expect that the same Senate that confirmed Pete Hegseth for Secretary of Defense, Kristi Noem for Secretary of Homeland Security, and many other woefully unqualified nominees, will suddenly develop a collective spine and defy Trump when it comes to Bove. By all means, call your Senators and let them know how you feel. But we have to be clear-eyed about the prospects for success.

The only small consolation is that as an appellate judge, Bove’s ability to cause harm will be fairly limited. He will usually be one of a panel of three judges, unable to act on his own. In any case where he takes a truly outrageous position, he would have to convince at least one other colleague to go along. And a judge can’t decide what policies or issues to pursue; he can only rule on the cases that come before him. In some ways Bove would even be more powerful as a district court judge, who at least can act alone in resolving cases with potentially nationwide implications. As a single appellate judge, he can do almost nothing by himself.

As he’s already shown, Bove can do far more harm in his current senior position at the Justice Department, where he can help set and implement Trump policies affecting the administration of justice nationwide.

So one way to look at the Third Circuit appointment is that it pushes Bove off to the sidelines. He will most likely serve out the next couple of decades as an appellate judge in relative obscurity, issuing the occasional absurd dissenting opinion to punctuate his tenure. And his appointment will get a truly odious person out of the DOJ leadership.

The primary concern, of course, is that Trump sees this appointment as a stepping stone for a future Bove nomination to the Supreme Court. As absurd as it sounds, that could indeed happen. If it does, then the stakes over that nomination fight will be much higher.

Don’t get me wrong. I don’t think Bove belongs on the federal bench OR in the Department of Justice. Confirming him to the Third Circuit would tacitly endorse his conduct and suggest there are no consequences for flouting federal court orders or for politicizing the Justice Department. And if he is promoted to the bench, he could potentially be replaced at DOJ by someone equally bad or even worse.

But if we assume this Senate will continue to do anything Trump wants — which means these are the only two choices — I’d frankly rather have Bove as a lone judge on the Third Circuit crying into the wilderness than have him helping set and implement nationwide policy in multiple areas at DOJ.

Maybe that’s what passes for a silver lining these days.

(Ben Curtis/AP)

This plan understandably has drawn vehement protests from Democrats, some of whom have taken to calling the plane “Bribe Force One.” Senate Democratic leader Chuck Schumer just announced he is placing a hold on all Trump Justice Department nominations until the administration answers questions about the deal. Even a few Republican senators have started to question the wisdom of Trump accepting such a massive gift from a foreign government, and some leading Trump supporters on the MAGA right have attacked the deal on social media.

Critics argue that accepting the plane would violate the foreign Emoluments Clause in the U.S. Constitution, which prohibits federal officials from accepting gifts or titles from foreign governments. That clause is found in Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.

Other have suggested the proposed gift would violate federal bribery law, which prohibits federal officials from accepting anything of value in exchange for agreeing to be influenced in the performance of an official act.

Trump, of course, is no stranger to such controversies. When he was first elected in 2016, his international business holdings immediately raised concerns about possible violations of the Emoluments Clause. Critics were alarmed over the possibility that foreign governments could seek to curry favor with the Trump administration by granting him favorable business deals in their own country or by spending lavish sums at Trump properties, including his hotel located near the White House in Washington, D.C. Those concerns proved to be well-founded.

But now, with this proposed airplane deal, Trump has taken the corruption to a whole new level.

Bribery vs. the Emoluments Clause

The foreign Emoluments Clause is related to the crime of bribery. The underlying concern of each is divided loyalty; that federal officials might act not in accordance with their obligation to do what is best for the country but to serve some private interest or reward those who have personally enriched them.

Although the two are related, the Emoluments Clause is more sweeping in its prohibitions than criminal bribery law. Back in 2016, after Trump was first elected, I wrote this explainer on the Emoluments Clause and bribery and how they differ. This was written before Trump took office and before we knew the extent of his willingness to profit from the presidency, so in hindsight it sounds a bit too hopeful in spots. It was also, of course, written before the Supreme Court’s presidential immunity decision last year called into question whether a president could ever be charged with bribery. But despite that, if you’re looking to understand the Emoluments Clause and how it relates to bribery, the post still holds up pretty well:

During the first Trump administration, several lawsuits were filed based on claims that he had violated the Emoluments Clause. The cases bogged down over questions about who had standing to sue and other legal issues, and dragged slowly through the courts. Once Trump lost the 2020 election the Supreme Court ordered that the remaining cases be dropped because they were moot now that Trump was no longer president. So we still don’t have any definitive court rulings on the prohibitions of the clause or who has standing to sue to enforce it.

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Bondi Signed Off? Then it Must Be OK

Attorney General Pam Bondi reportedly has written a memo concluding it would be legal for the government to accept the plane from Qatar (although we have not seen the memo). Bondi, by the way, previously worked as a lobbyist for the government of Qatar, which paid her $115,000 per month. In a normal world that would have caused the attorney general to recuse herself from reviewing this transaction - but ethical notions such as recusal seem almost quaint in this administration.

Bondi reportedly has concluded the gift would be lawful because the plane would be owned by the Air Force and then transferred to Trump’s presidential library foundation and would not be given to him personally. Trump has latched on to this defense, calling the plane a gift to the nation from a grateful Qatar:

Bondi also reportedly concluded that accepting the plane would be lawful because it is not being given in exchange for any particular action by Trump.

The latter point relates to whether the gift would violate federal criminal bribery law, which requires a link between the thing of value and a specific official act. Of course, the Supreme Court’s 2024 decision on presidential immunity might suggest this doesn’t matter, because Trump could never be prosecuted for bribery in any event. But as I argued here, I believe that even after that decision, prosecution of a former president for bribery would still be possible:

But putting questions of immunity aside — and much as it pains me to write these words — Bondi is probably right on the legal question of bribery. Remarkably enough, thanks to decades of Supreme Court decisions gutting federal corruption laws, it would not be a bribe for the government of Qatar to give Trump a $400 million plane — or even to give him $400 million in cash — just to cozy up to him. Such a gift would not violate federal bribery law unless the government could link it to an agreement by Trump to be influenced in performing some particular official act, a quid pro quo. Showering an official with gifts with the general hope of currying favor with that official is not be enough.

This seems bizarre, I know. But the legal restrictions imposed by the Supreme Court have made prosecuting public corruption extremely difficult, and Congress has failed to correct the problems. Current law leaves massive loopholes that allow private interests to purchase influence over and access to public officials. (If you want to read more about the sorry state of our federal public corruption laws, you can check out my New York Times column here or my earlier blog post here.)

I think Bondi is on far shakier ground when it comes to the Emoluments Clause. It’s true that the clause, by its terms, prohibits only the official himself or herself from receiving the gift. But here it’s clear that Trump is the intended beneficiary; it is effectively a gift to him personally. And as Commander in Chief of the Air Force, he would have the power to control how and when the plane is used for his benefit. Claiming this is not a gift to Trump based on who holds formal title to the plane ignores the reality of what’s happening. That said, if we found someone with standing to sue, I wouldn’t be terribly surprised if there were five votes for that defense on the current Supreme Court.

But whether Bondi’s legal defenses ultimately would hold up is not really the point. The question here isn’t whether the conduct is strictly lawful. I often tell my students there is a great deal of corrupt, sleazy, unethical conduct that may not be criminal, but that doesn’t make it right. That’s the case here: accepting the plane would be corrupt, pure and simple.

Bribery law is concerned with the prospect that a federal official will act not to serve the public interest but to benefit those who are paying him off. The Emoluments Clause is concerned with the prospect that U.S. government officials might feel more loyal to foreign governments that are enriching them than they do to the American people, and might act accordingly. All of those same concerns are squarely implicated by the Qatari plane deal. It clearly violates the spirit of these prohibitions, whether or not Trump might have a technical legal defense if a court case were filed.

Corruption is a broad concept that goes beyond the strict terms of legal texts or the evidentiary burdens of criminal trials. Here the corruption is obvious. Qatar isn’t doing this out of the goodness of its heart, or because members of the royal family are big fans of The Apprentice. Qatar wants things from the United States, including military assistance, support for its policies and actions in the Middle East, and favorable investment opportunities. Trump is in a position to give those things to his new benefactors.

In addition, the Trump Organization and Trump family have enormous business and financial interests in Qatar, including recently-announced plans to build a golf resort there worth more than $5 billion. The conflicts of interest and potential for using the office of the presidency for personal enrichment are immense. With that kind of money at stake, do we have confidence Trump will be making decisions regarding Qatar based on what’s in the best interest of the United States, rather than what’s in his own financial interest? As Trump might say, “only a FOOL” would believe that.

By the way, does anyone else recall how Republicans spent four years yelling about and investigating claims — which turned out to be completely false — that the Biden family had business ties to Ukraine worth a few million dollars? It turns out even if that had been true, it would have been mere chump change. And of course, most of those same Republicans are meekly silent now, as we watch the U.S. president and his family growing ever richer from their financial ties to Middle Eastern nations.

This level of financial entanglement between a president and a foreign nation would have been unthinkable in the past. Arguments about whether it is strictly legal are almost beside the point. We hold our public officials to a higher standard than simply being able to say that a court ultimately determined their actions were not unlawful — or at least we used to. Prior administrations of both parties would have rejected a deal like this out of hand, based on the mere appearance of potential impropriety. Once again, with an administration that openly flaunts its improprieties, that idea seems almost quaint.

So much of ethics, good government, and the rule of law depends on norms and traditions that have been recognized for generations but are not necessarily embodied in statutes. Their effectiveness depends on having people of good character in the government who are committed to upholding them and who believe public service is a public trust. This jet deal is just one more example of what happens when you put someone in office who cares nothing for those norms and ideals and is happy to trample them while daring people to try to stop him.

George Santos in the House of Representatives (credit: AP/Alex Brandon)

Santos was a Republican Congressman from New York. He was first elected in 2022, when he “flipped” a district formerly held by the Democrats. Shortly after his election, reports began to emerge that he had repeatedly lied during his campaign about his personal and professional background, including where he went to school, where he had worked, and his ethnic heritage.

Those lies — or as Santos put it, “embellishing his resume” — led to a political scandal for the freshman Congressman but were not criminal, as I explained in this post at the time:

Shortly after Santos was elected, however, allegations of more serious, criminal conduct began to emerge. He ultimately was indicted in May 2023. Prosecutors later returned a superseding indictment charging Santos with a total of twenty-three felony counts for four different fraud schemes. On December 1st, 2023, the House voted to expel him from Congress. He pleaded guilty on August 19, 2024.

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If you’d like a review of the allegations and charges in the indictment, I broke it all down here:

The wire fraud charge to which Santos pleaded guilty was based on his falsification of campaign finance reports filed with the Federal Election Commission. Working with his campaign treasurer, Santos listed fake donations from friends and family members and a personal loan to his campaign that he never made, in order to qualify for substantial additional funding from the National Republican Congressional Committee. The identity theft charge was based on Santos using credit card information from donors to his campaign to make unauthorized charges and then using the money for various personal expenses, including designer clothes and Botox injections.

Santos’s sentence of 87 months is right in line with what’s recommended by the federal sentencing guidelines and was requested by the prosecutors. He must also pay about $375,000 in restitution. The judge gave him until July 25 to surrender to prison and begin serving his term.

Santos is a Republican and a big Trump supporter who endorsed Trump’s “big lie” about the 2020 election being stolen. That would seem to make him a prime candidate for a presidential pardon, something Trump has readily handed out to other political allies and supporters. On the other hand, one of the victims of Santos’s fraud was the Republican party, so perhaps that cuts against him.

There apparently isn’t any sign of a pardon being in the works, at least not yet. But I will not be at all surprised if Trump pardons him before his sentence begins, falsely claiming that Santos was just another victim of president Biden’s supposedly “weaponized” Justice Department. Stay tuned.

The lecture I give on the final day of class is always one of my favorites. I talk about the rule of law and our criminal justice system, and the critical role of the federal prosecutor in preserving that system. It’s a theme I stress all semester, but on the last day of class I wrap it all up and send them out the door with what I like to call my closing argument; the final lessons I want to make sure they take with them.

I talk about the rule of law as the very foundation of our democracy. It means similar cases and defendants should be treated alike, without regard to politics, race, wealth, or other improper considerations. I emphasize the need for prosecutors to do their jobs without fear, favor, or politics, following the facts and striving to do the right thing. I remind them again that the prosecutor’s job is not to win, but to see that justice is done. I discuss the tremendous power that prosecutors have and how with that great power comes great responsibility. I stress that these are not mere platitudes but are core principles of our justice system that become part of every good prosecutor’s DNA.

My closing argument has felt increasingly urgent these days.

I’ve taught my class for nearly twenty-five years. I’ve always been proud to give that lecture, just as I am proud of my service as a federal prosecutor. But in recent years, when delivering these closing remarks to my students, I’ve experienced some different emotions. I feel defensive. I fear that in light of what my students see going on around them I must sound hopelessly idealistic or naive – or both.

Consider what’s happened over the past decade. When most of my students were in high school or beginning college, they witnessed a president with no respect for these principles. President Trump considered the justice system to be simply another political weapon he could wield for his own benefit. During his campaign he threatened to “lock up” his political opponents. In office he routinely denigrated federal prosecutors and law enforcement officials who were part of his own administration. He praised those who committed crimes on his behalf. He saw the pardon power not as a solemn Executive responsibility but in transactional terms, as a way to reward allies or political supporters. Once out of office, he continued to claim that the justice system is “rigged” and had been weaponized against him.

Now, in Trump’s second term, things are far worse. Trump is using the Justice Department to target those he sees as political enemies, without even trying to hide it. He continues to denigrate career prosecutors and law enforcement professionals, calling them deranged thugs and “dangerous people.” Cases are dropped against those who support the president politically or financially. He pardons his allies and supporters, including hundreds who violently stormed the U.S. Capitol and assaulted law enforcement officers in an effort to overturn an election on his behalf. His Justice Department fires or demotes career officials simply for doing their jobs in the January 6 cases and other prosecutions. He orders his administration to sanction law firms for doing nothing more than representing clients Trump doesn’t like.

That’s the justice system my students see now as they prepare to graduate. It’s a far cry from the system I worked in and loved and that I talk about all semester. So as I told my class yesterday, when I discuss how the justice system is supposed to work, I understand how my words could ring hollow. Who could really blame my students for thinking, “He’s full of it” – for concluding that the justice system really is just about politics and power, like seemingly everything else in this town?

But I urged them not to give in to cynicism. I emphasized that what they’ve been seeing is not normal — and is dangerous. I talked about how the norms concerning the rule of law, the independence of the Justice Department, and prosecutorial integrity have to be protected. Those norms are fragile and can’t be taken for granted. And right now they are under attack.

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As I told my students, this is not a political issue. If a Democratic president were doing these things, I’d be making the same arguments — just as we see so many Republican former DOJ officials protesting what is going on and agreeing to represent those who are resisting the administration. Many of us, from both political parties, are horrified and heartbroken over what is happening.

We may disagree about tax policy, or immigration policy, or foreign policy, or any other political issue. But for generations, DOJ attorneys and others, on both sides of the aisle, agreed that despite our political differences we were all operating within a certain baseline set of fundamental principles, including:

• That criminal prosecutions are based on the facts and law, not politics;

• That the Justice Department is largely independent of the political arms of the administration;

• That the justice system is not used to target a president’s perceived political opponents;

• That everyone, even those who oppose the administration, is entitled to representation from counsel of their choice;

• That the Executive Branch is required to follow lawful court orders, even those it doesn’t like;

• That everyone in this country is entitled to due process — before, for example, the government snatches you off the street and sends you to a foreign prison.

I emphasized how almost all career government attorneys from both parties, like those with whom I used to work under both Republican and Democratic presidents, cherish these fundamental principles. No one would claim that they were always perfectly followed. There have been abuses and mistakes, and people sometimes disagree on how they should be applied. But almost no one doubted their critical importance and legitimacy.

Now president Trump, aided and abetted by his attorney general Pam Bondi and other senior officials, is kicking those bedrock principles to the curb.

Republican attorneys at the Justice Department and in the White House who refused to discard these ideals in the pursuit of power acted as guardrails during the first Trump administration. So he’s made sure there are no such guardrails this time around. He has surrounded himself with Cabinet members and advisors whose chief qualification is their willingness to endorse and enable his worst impulses. Meanwhile, Republicans in Congress are completely cowed and unwilling to defend the critical norms that are under attack, even though most of them know how dangerous this all is.

But career people at the Justice Department still believe in those principles, even if their new leadership does not. We saw it, for example, in the actions of the prosecutors in New York and D.C. who resigned in protest rather than follow the corrupt order to dismiss the case against New York Mayor Eric Adams. Those are the people acting in the finest traditions of the Justice Department and who deserve our admiration and support. Those people are still out there, both within and outside the Justice Department, willing to fight for those ideals.

I also urged my students to remember that facts matter. They grew up during an age when that seems to be in doubt. Politicians and others routinely make claims with no factual basis — and half the country believes it. Lies take off on social media, where there is no fact-checking, and gain a life of their own. If a politician’s claim is later proven false, he simply denies he ever said it - relying on our brief public attention span to move on to the next outrage of the day. This is a tool right out of the authoritarian handbook: repeat a lie loudly and regularly, and eventually people will start to believe it.

But lawyers, of all people, should recognize that facts do indeed matter. We make our living by arguing based on facts and evidence. One place where simply making up your own facts doesn’t work is in court. In a courtroom you can’t simply cry, “Fake News!” or create your own evidence. Recall that in the aftermath of the 2020 election, Trump and his allies made repeated false claims of voter fraud. Those claims were widely circulated on social media and believed by many of his supporters, but when they were actually tested in court they fell apart. The legal system is one institution that has held up pretty well in the face of this “facts don’t matter” trend.

That’s why those in power who want us simply to believe whatever they say must also attack law firms, the justice system, and the independent judiciary. The legal system’s truth-seeking function is a threat to them.

I urged my students to remember that good lawyers respect decision-making based on reasoned, civil argument and on provable facts. I said as lawyers it will be their responsibility to advocate for that kind of decision-making. I encouraged them to take seriously the responsibility that comes with their legal training. 

Most importantly, I told them not to accept what they see happening around them. I said I realize we live in a cynical age, but they can’t get cynical about the fundamental principles that underlie the justice system - they have to go out and fight for them. I urged them to leave law school and become part of a profession that resists the current assaults on our justice system and ultimately begins the long, hard work of restoring the public’s faith in that system.

I hate that the events of recent years risk making my final words to my students seem so divorced from their reality. But the ideals I spoke about are not merely tired cliches - they are central to our national identity. Authoritarian leaders use the justice system as a political weapon to jail or silence their enemies and reward their friends. Our commitment to neutral justice and the rule of law sets us apart from such regimes. If we lose that, we will have lost something very fundamental.

A number of students came up to speak to me after class yesterday. They understand what is going on and what is at stake, and are committed to working to fix it. Based on talking to many students over the years, I have great faith in their generation’s ability to help turn things around. They give me hope. As I approach the end of my own legal career, I only wish they didn’t have to begin theirs under such perilous circumstances.

This is an updated and expanded version of a post I wrote after the last day of class in the spring of 2020, near the end of the first Trump administration. As I noted, it seems even more urgent today.

These attacks make perfect sense for a president with authoritarian goals. Our three branches of government are designed to check and balance each others' exercises of power. Trump has already completely subdued the Republican-controlled legislative branch. Republican members of Congress have been content to stand by while Trump seizes their power and renders them largely irrelevant - that is, when they’re not busy confirming his dangerously unqualified Cabinet nominees.

That leaves the judicial branch and the legal system as possible checks on Trump. His goals here are obvious. If attorneys, law firms, and judges can be made to fear Trump’s retribution, they will be less likely to stand in the administration’s way. Planning to seize and deport immigrants with no due process, or shut down entire agencies with no legal authority? How much easier that will be if there are no lawyers who dare to challenge those actions in court, or if judges are afraid to rule against the administration.

Our Constitutional order is under attack. This is a “stand and be counted” moment. Large law firms and the legal profession as a whole need to join together to condemn these attacks and defend the legal system and rule of law. Large law firms in particular are extremely well-equipped to take on this fight. If they don’t, many more people are going to be hurt as the Trump administration continues to bulldoze its way through our institutions.

Beyond these moral and constitutional imperatives, these firms must recognize that their own bottom line is at stake. What made it possible for them and their clients to grow and prosper is the rule of law and a stable legal system and business environment that was the envy of the world. Big Law needs to start fighting back in a big way, before that system no longer exists.

Trump’s Attacks on Big Law

Trump’s assault on major law firms began with the leading D.C. firm of Covington & Burling. On February 25 Trump signed a memo revoking the security clearances of a handful of Covington attorneys. He also said he would cancel any government contracts with the firm, although it’s not clear they had any. The firm’s offense? Providing about $140,000 of pro bono legal representation to former special counsel Jack Smith, who is being investigated by both Congress and the Trump Justice Department for simply doing his job. Trump’s action also came less than a week after Covington and several civil rights groups filed a lawsuit challenging the constitutionality of Trump’s anti-DEI and LGBTQ+ Executive Orders.

This order was an attack on the very foundation of our legal system. Every attorney understands the bedrock principle that every person is entitled to representation - especially unpopular clients. Good attorneys accept the willingness to provide such representations as an ethical duty and a fundamental norm of the practice of law. And Jack Smith has done absolutely nothing wrong, except in the eyes of Trump and his MAGA supporters.

Members of the public may sometimes criticize attorneys who defend a notorious murderer or take on other unpopular cases. But the principle that everyone is entitled to a defense is not a controversial one within the legal profession. The idea that the president of the United States would punish an attorney or a firm based on whom they represent was previously unthinkable.

Covington’s response to Trump’s order was fairly muted, The firm issued a brief statement defending its representation of Smith. A few bar association groups condemned Trump’s order. But the legal profession as a whole was relatively quiet, especially other Big Law firms. Covington has not filed a lawsuit challenging Trump’s order, and has continued to represent plaintiffs challenging actions by the Trump administration.

Perhaps encouraged by the relative lack of pushback from the profession, Trump struck next at Perkins, Coie, a Seattle-based international law firm. Trump is unhappy with that firm primarily because of its work for the Hillary Clinton campaign, including hiring Fusion GPS, the company that created the infamous “Russia dossier.” On March 6 Trump issued an Executive Order targeting Perkins, Coie. This one went much further: among other things, it revoked the security clearances of everyone at the firm, canceled any government contracts with the firm and prohibited new ones, directed agencies to bar the firm’s employees from federal buildings, and directed the EEOC and Attorney General to investigate the firm for possible discrimination based on its DEI policies.

Perkins, Coie reacted very differently from Covington: they immediately announced they would fight the order and filed suit. They are represented by Williams and Connolly, a storied and powerful D.C. firm that deserves a lot of credit for taking the case. Federal District Judge Beryl Howell granted a preliminary injunction preventing enforcement of Trump’s order, finding that it was meant to punish the firm and was likely unconstitutional. She called it an assault on the legal profession and said it sent “chills down [her] spine.”

Undaunted, a week later Trump targeted the New York based mega-firm Paul, Weiss with an order very similar to the Perkins, Coie one. Trump is particularly angry about the actions of Paul, Weiss partner Mark Pomerantz, who took a leave of absence from the firm to work on the New York state criminal investigation that ultimately led to Trump’s convictions for concealing hush money payments. He also singled out the firm’s work on a pro bono lawsuit brought against January 6 Capitol rioters, and the firm’s DEI policies.

Rather than fight the order, Paul, Weiss chairman Brad Karp quickly met with Trump and struck a deal. The firm agreed to cancel all DEI activities and policies and to provide the Trump administration with $40 million in pro bono legal representation for various administration policy initiatives. The firm also threw its former partner under the bus by acknowledging supposed “wrongdoing” by Pomerantz, when no evidence of such wrongdoing exists. In return, Trump agreed to rescind his order.

Paul, Weiss caving so quickly sent a shock wave through the profession. This is one of the largest, wealthiest, and most powerful firms in the country. If they aren’t willing to stand up to the administration, who will? The disgust was widespread. As one of my attorney friends posted on social media, “I wish I was working at Paul Weiss — only so that I could quit.”

Some have characterized these events as Trump extorting Paul, Weiss, but that’s too kind to the firm. Extortion implies the firm was a powerless victim. Paul, Weiss, with annual revenues of $2.6 billion last year and hundreds of skilled attorneys, is anything but powerless. It had a choice. It could have made the choice that Perkins, Coie and Williams and Connelly made, to stand up to Trump. Instead, it chose protecting its own financial interests over protecting the rule of law.

Paul, Weiss essentially paid Trump off to get him to withdraw an order he had no right to issue in the first place. In the process, it encouraged Trump to take similar actions against other firms. It’s shameful.

Trump’s assaults on the legal profession are not limited to these orders. Last week the acting head of the EEOC sent a letter to twenty leading law firms demanding detailed information, including private employee information, about their DEI programs and policies and suggesting they may be violating the law. And two days ago Trump issued a new directive entitled, “Preventing Abuses of the Legal System and the Federal Court,” ordering the Attorney General to prioritize seeking sanctions against firms and attorneys who engage in what he deems frivolous and vexatious litigation or other unethical behavior - to say the least an ironic demand, coming from him.

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Attacks on Judges

In addition to law firms and lawyers, Trump is targeting judges. For example, agents recently seized scores of Venezuelan immigrants and put them on planes to deport them to El Salvador, claiming they were members of a violent street gang. The administration argues a law known as the Alien Enemies Act gives it the power to seize the immigrants and deport them without a hearing.

The ACLU quickly filed a lawsuit and Chief Judge James Boasberg of the D.C. District Court held an emergency hearing. During the hearing Boasberg raised serious doubts about the administration’s position. He ordered that any of the detainees set to be deported must remain in the country and any planes already in the air must turn back.

But the administration defied Boasberg’s order. The planes that were in the air did not turn back, and at least one more took off after the judge’s order. The Venezuelan immigrants are now being held in a mega-prison in El Salvador that is notorious for torture and inhumane conditions. Meanwhile, evidence is emerging from families and attorneys suggesting that some of those seized were not gang members at all.

The administration has offered varied excuses for defying the judge’s order. Officials claim the judge lacked authority to order the planes to turn back because they were already in international airspace. They have also argued they were not bound by certain portions of the judge’s order because he issued it verbally from the bench and not in writing.

Boasberg, a highly-regarded and even-handed judge, is getting exasperated. He declared the government’s responses “woefully insufficient” and said the government was evading its obligations. He has ordered officials to show cause why he should not find they have violated his order - the first step towards potentially holding them in contempt.

In response, Trump and his Justice Department have not followed the usual appellate process. Instead, they have asked the D.C. Circuit to remove Boasberg from the case. Attorney General Pam Bondi issued an unbelievable statement accusing Boasberg of favoring terrorists over the safety of the American people because he dared to question the administration’s actions. And on Truth Social Trump posted this truly unhinged attack on Boasberg:

One of Trump’s lackeys in Congress, Texas Republican Brandon Gill, dutifully filed articles of impeachment against Boasberg the same day.

This caused Supreme Court Chief Justice John Roberts to issue an extremely unusual statement rebuking the president, although not by name: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

In the Perkins, Coie case, DOJ attorneys have also asked Judge Howell to recuse herself, arguing that her statements and rulings in prior cases, including those involving January 6 defendants, suggest she cannot be fair.

Seeking to have a judge removed from a case is an extreme step that rarely succeeds. It won’t succeed here, where the only alleged judicial “misconduct” is issuing rulings that Trump doesn’t like. And let’s be clear: no judge is going to be impeached and removed for making Trump unhappy. There is no basis for impeachment when the only alleged “high crime or misdemeanor” committed by a judge is issuing an order the president doesn’t like. Even if the razor-thin Republican majority in the House passed articles of impeachment, it would take ⅔ of the Senate to convict, which will never happen.

It’s also not likely that judges such as Boasberg and Howell are going to be intimidated by Trump’s insults and threats. But his attacks do put a target on their backs among his supporters and raise serious concerns about their security.

Although impeachment will not actually happen, these attacks on judges are part of Trump’s broader attack on the legal system. He wants his base to believe that any judge or lawyer who opposes him is by definition corrupt. And I fear he could be trying to lay the groundwork for a future claim that he may simply disregard court orders with which he disagrees.

Acts of Individual Attorneys

We’ve also seen a range of responses by individual attorneys to Trump’s lawless acts. During the “Thursday Afternoon massacre” eight DOJ attorneys resigned rather than carry out what they considered to be a corrupt order to dismiss the criminal case against New York Mayor Eric Adams.

The pardon attorney was fired after she refused what she considered an improper request to restore actor Mel Gibson’s gun rights, which he lost due to a conviction for domestic violence.

Other attorneys, however, show up and do the administration’s bidding. During a hearing before Judge Boasberg, for example, a DOJ attorney argued the administration didn’t have to follow the order to turn the planes around because it was merely a verbal order from the bench. When the judge understandably expressed astonishment at such a claim, the attorney responded that this was what he had been instructed to argue.

In other words: “I’m just followin’ orders, judge.”

Attorneys, of course, have ethical obligations that transcend orders from superiors. Those who make frivolous arguments or false representations in court can’t hide behind a “just following orders” defense. Attorneys who are currently enabling the administration's lawlessness will carry that professional stain with them for the rest of their careers. But they also risk other consequences, including bar sanctions and the possible loss of their livelihood. Just ask Rudy Giuliani, Sydney Powell, or John Eastman, members of Trump’s legal “elite strike force team” involved in the frivolous challenges to the 2020 election who were later disbarred or faced other sanctions.

The individual attorneys who stood up for their principles lost their jobs for doing the right thing and defending the rule of law. It’s not too much to ask that the largest and wealthiest law firms in the country risk a hit to their profits per partner in order to do the same.

The Legal System at Risk

Unlike many victims of Trump’s lawlessness, law firms are not powerless. These mega-firms that are the subjects of Trump’s recent attacks have ample resources to fight back. And more so than ordinary citizens, they have a moral and professional obligation to do so. Other Big Law firms that have not yet been targeted need to join the fight on behalf of the profession, the legal system, and the judiciary.

This fight can’t be left to small firms and public interest groups. There are probably no institutions in the country better equipped to resist Trump than these Big Law firms. They need to join together, speak up to condemn these lawless acts, and take appropriate legal action. There may be some short-term financial consequences, but it’s the only way to survive in the longer term.

Imagine if instead of paying Trump off, Paul Weiss had pledged that $40 million to fighting Trump’s lawless actions in court - and other Big Law firms had matched their pledge? In addition to the financial resources, the unified condemnation of the leading firms in the country would send a powerful message.

History is going to remember how members of the profession acted during this time. Paul, Weiss has forever stained its legacy by giving in to Trump’s lawless demands. Other firms must not follow suit.

If there’s one thing we know about Trump, it’s that he will keep on pushing until someone stands up to him. His threats and intimidation of law firms and judges will continue and grow.

Big Law, you’ve been far too quiet for the past few weeks. Time to speak up and resist.

In that post I discussed how Emil Bove III, the acting Deputy Attorney General and Trump’s former criminal defense attorney, had ordered prosecutors in the Southern District of New York to drop the prosecution of New York City Mayor Eric Adams. In a remarkable memo to the New York prosecutors, Bove said dismissal was warranted because the prosecution was interfering with Adams’s ability to help the Trump administration implement its immigration agenda, and that the timing of the indictment suggested it had been politically motivated.

I also wrote this about the New York prosecutors:

The U.S. Attorney’s Office for the Southern District of New York is famously independent, earning it the nickname the “Sovereign District of New York.” It will be interesting to see how they react to the order to drop the case. There’s no doubt it ultimately will be dismissed, but we might see some prosecutors noisily resign in protest.

Yesterday that’s exactly what happened - and it was noisy indeed.

Danielle Sassoon (Kent Nishimura/ The New York Times)

Danielle Sassoon, the acting U.S. Attorney for the Southern District of New York, resigned rather than carry out what she rightly viewed as an improper and corrupt order to drop the case. Bove then transferred control of the case from the New York U.S. Attorney’s Office to the Public Integrity Section at Main Justice, which specializes in corruption cases. Two career prosecutors who oversaw that section, Kevin Driscoll and John Keller, then promptly resigned rather than dismiss the case. Three other prosecutors who worked under them in the Public Integrity section then resigned as well. (A fourth was on leave giving birth, but is expected to resign upon her return.)

On Saturday evening, October 20, 1973, president Richard Nixon ordered his Attorney General Elliot Richardson to fire Watergate special counsel Archibald Cox after Cox subpoenaed Nixon’s Oval Office tape recordings. Richardson resigned rather than carry out the corrupt order. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox, and Ruckelshaus also refused and resigned. The third in line, Solicitor General Robert Bork, finally agreed to carry out the order. This incident became known as the “Saturday Night Massacre.”

Now Trump has his own Thursday Afternoon Massacre, and it’s a major black eye for his fledgling Department of Justice.

Sassoon’s Letter and Bove’s Response

Sassoon is not some woke liberal holdover from the Biden administration. She’s a well-regarded career prosecutor, probably best known for handling the case against cryptocurrency fraudster Sam Bankman-Fried. She clerked for conservative icon Justice Antonin Scalia and is a member of the conservative Federalist Society. She was chosen by Trump’s team to head the New York prosecutor’s office on an interim basis.

Sassoon wrote an eloquent 8-page letter to the new Attorney General Pam Bondi explaining why she could not, in good conscience, file a motion to dismiss the Adams case. She said the case against Adams was strong and would support a conviction beyond a reasonable doubt and noted Bove had never questioned that. She said Bove’s memo directed her to dismiss the case for political reasons that have nothing to do with the facts or the law, and that she could not do that consistent with her oath of office and duties as a federal prosecutor.

Sassoon noted it would be improper to dismiss a criminal prosecution in order to allow the defendant to help the administration carry out its political agenda. But that’s exactly what Bove had instructed her to do. She said Adams and his counsel had expressly argued that he could only effectively assist with enforcing the administration’s immigration policies if the indictment were dropped. She went on:

Rather than be rewarded, Adams's advocacy should be called out for what it is: an improper offer of immigration enforcement assistance in exchange for a dismissal of his case. Although Mr. Bove disclaimed any intention to exchange leniency in this case for Adams's assistance in enforcing federal law, that is the nature of the bargain laid bare in Mr. Bove's memo.

She then dropped this bombshell of a footnote:

I attended a meeting on January 31, 2025, with Mr. Bove, Adams's counsel, and members of my office. Adams's attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department's enforcement priorities only if the indictment were dismissed. Mr. Bove admonished a member of my team who took notes during that meeting and directed the collection of those notes at the meeting's conclusion.

This is an allegation of at least attempted federal bribery in violation of 18 U.S.C. 201(b): offering a thing of value (Adams’s assistance) in return for an official act (dismissing the indictment). A seasoned federal prosecutor like Sassoon doesn’t use terms like “quid pro quo” lightly, and knows the implications.

(I can’t resist pointing out that Bove’s actions described in the footnote also call to mind the immortal words of drug kingpin Stringer Bell in the TV series The Wire: “Is you taking notes on a criminal f*ckin’ conspiracy?”)

Sassoon went on to calmly and thoroughly debunk Bove’s other rationales for dismissal, including the bogus claim that the timing of the case improperly interfered with Adams’s election. She concluded by asking to meet with Bondi to discuss reconsidering the dismissal and offering to resign if that was not possible.

The entire letter is really worth a read.

Bove’s letter in response was defensive and slightly unhinged. He said he accepted Sassoon’s resignation (even though that offer was directed to Bondi, not him). He accused her of violating the oath she took as a prosecutor because she acted consistent with her own view of her constitutional obligations rather than in accord with the “policies of a democratically elected president.” (Yes, Emil, that’s precisely the point - prosecutors take an oath to the Constitution, not to the president.) He said the other prosecutors on Sassoon’s team were being placed on administrative leave pending an investigation of their conduct, based on her representation that they agreed with her decision.

Bove also said he was having the case transferred to Main Justice in Washington, which would file the motion to dismiss. If he thought that would quickly resolve the matter, he was mistaken. As I mentioned above, five prosecutors there (so far) have also resigned rather than follow Bove’s order. As of Friday afternoon, no motion to dismiss the case has been filed.

Just as I was finishing up this post, news broke that the lead prosecutor on the Adams case in New York, Hagan Scotten, has also resigned, saying he agrees fully with Sassoon’s decision. Scotten, one of the prosecutors Bove had placed on administrative leave, is a decorated military veteran and a former clerk to Chief Justice John Roberts — again, hardly a liberal squish. He wrote a brief but awesome resignation letter to Bove, concluding: “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.”

Resign, or Stay and Fight?

I’ve seen some people online arguing Sassoon and the others should not have resigned but should have stayed, refused to dismiss the case, and made Bove or Bondi fire them. I don’t think that’s right.

First, if you do that, it’s not as though they are going to change their minds and let you stay and prosecute the case. The Trump administration clearly has no qualms about firing people they suspect of being disloyal. So if you refuse to follow the order and make them fire you, you end up in the same place anyway.

Second, if you refuse the order and try to stay, that’s insubordination. That actually gives them grounds to fire you. And that would allow the administration to at least try to shift the story from the corrupt nature of the underlying order to your own insubordinate conduct. (Bove is trying to do that anyway, but it’s far less effective in the face of honorable resignations that do not actually defy any orders.)

Resigning and explaining why is the principled thing to do. It gives these prosecutors the moral high ground. They are saying, “I still respect the institution and the chain of command, and will not be insubordinate and disobey my superiors. But I cannot in good conscience carry out this order. Therefore I have to leave.”

Others have suggested that good prosecutors should stay and try to protect the institution and the rule of law from the inside. In general that may be desirable, although that’s a very personal decision for each individual. But that’s not a viable option once you’ve been ordered to do something that you’re convinced violates your oath and responsibilities. If you’re in that situation, as these prosecutors were, then your choices are either to resign or to capitulate and follow what you believe is an unjust and corrupt order. They made the honorable choice.

I’ve also heard people suggest the prosecutors should have stayed because Trump will now just replace them with loyalists who will carry out his political agenda without question. That may be true, but that ship sailed when Trump won the election. That’s the government we have now. But our response can’t be to expect honorable people to violate their oaths of office and agree to carry out orders they know to be wrong, simply to remain employed.

Finally, the noisy resignations also highlight the corrupt nature of the deal with Adams and keep that story in the news, as it has been for several days now. Quietly capitulating and filing the motion to dismiss would be a one-day story and then everyone would move on. The resignations are a form of civil disobedience that call attention to an injustice. The Thursday Afternoon Massacre is shining a spotlight on the Trump administration’s deal with Mayor Adams by showing that even Trump’s own appointees at the Justice Department believe it’s corrupt. That’s a good thing.

What Happens Now?

Presumably at some point Bove will make his way far enough down the food chain at DOJ to find someone willing to sign their name to the motion to dismiss. But as Sassoon noted in her letter, the judge doesn’t have to quietly agree to grant the motion. At a minimum, if I were the judge, I’d insist that Bove appear before me personally to explain what happened, why dropping the case is in the public interest, and why so many career prosecutors disagree with him. That could be a very interesting hearing if the judge grills Bove about the allegations in Sassoon’s letter.

At some point, the case will go away. Practically speaking, a judge can’t force the Justice Department to proceed with a case it doesn’t want to prosecute. As for Adams, he is already keeping up his side of the bargain; there were reports today that he just agreed to open Rikers Island prison to federal immigration authorities, which the New York Times described as a “significant shift in the city’s sanctuary policies.”

Will this story break through to the public, with everything else that is going on? It’s hard to say. But this is a major embarrassment for the Trump administration and his new Justice Department team. During the Nixon administration, the Saturday Night Massacre was followed shortly by Congress beginning impeachment proceedings. That’s not going to happen with this craven Congress, of course. But the resignations keep the spotlight on the corrupt nature of the deal with Adams, and that will continue — particularly if the judge holds a hearing on the motion to dismiss. That’s a good thing.

But even if it has no long-term effect at all, these prosecutors should feel good about doing the right thing. So many people in Washington have been quietly rolling over for the Trump administration — I’m thinking in particular of Senate Republicans meekly voting to confirm Cabinet nominees who are dangerously unqualified. It does my heart good to see career prosecutors honoring their oaths and standing up for the rule of law. They have acted in the best traditions of the Justice Department that I know and love and that has been under assault by the Trump administration.

It may not make any sense, and it probably won’t last. But the principled stand taken by these DOJ attorneys has left me feeling more hopeful than I have in weeks. I’m going to enjoy that for now.

Department of Justice, Washington D.C.

Trump campaigned on the false claim that the justice system had been “weaponized” against him and his allies. On his first day in office he signed an Executive Order calling for an end to this supposed weaponization. His new Attorney General Pam Bondi fell in line, forming a working group to examine what she called politically motivated acts within the Justice Department and to investigate the prosecutors who pursued cases against Trump.

Trump’s phony claims of victimhood are nothing new. But in true Alice-in-Wonderland fashion, it is Trump who, while decrying “weaponization” of the justice system, is deploying that system to support his political agenda and exact vengeance on his opponents. The true weaponization has now arrived.

Whitewashing January 6

One of Trump’s first official acts after being sworn in was to pardon everyone charged in the January 6, 2021 Capitol riot, including those who violently assaulted law enforcement officers. As I wrote here, this was a grave abuse of the pardon power and a slap in the face not only to those victims but to all the prosecutors, FBI agents, and judges who worked for four years to bring the Capitol rioters to justice.

But the pardons were just one step in Trump’s efforts to rewrite the history of January 6. Trump wants the public to believe that those who attacked the Capitol on his behalf really did nothing wrong. He argues the fault lies with the prosecutors and law enforcement officers who pursued these cases. The rioters, he claims, were treated unfairly by a weaponized justice system. They are the true victims.

To further that narrative, following the pardons the leadership at Trump’s Justice Department quickly moved to fire or reassign dozens of prosecutors who had worked on the January 6 cases. Acting Deputy Attorney General Emil Bove III ordered the acting director of the FBI, Brian Driscoll, to fire eight senior FBI executives who were involved in the investigations and prosecutions of Trump. He also ordered Driscoll to turn over a list of the names of every FBI agent involved in any January 6 case, raising fears of further retaliation. Driscoll resisted at first, resulting in Bove accusing him of insubordination. After the FBI General Counsel determined that the order was lawful, however, Driscoll complied and supplied the list. (Use of the list, and whether it can be made public, is now the subject of litigation.)

This purge, of course, is not just a matter of Trump exacting revenge. It is also intended to further the narrative that these prosecutors and agents did something wrong by bringing these cases and deserve to be disciplined.

In addition to firing dozens of January 6 prosecutors, acting U.S. Attorney for D.C. Ed Martin has launched an internal probe of the use of an obstruction of justice statute, 18 U.S.C. 1512(c), in the prosecution of hundreds of those cases. The statute applies to obstruction of official proceedings, and prosecutors charged that some rioters sought to obstruct the Congressional proceeding to certify the election results. In an email to his office, Martin said the use of that statute was a “great failure” by the office and that they needed to get to the bottom of how it happened. He ordered members of the office to assemble and turn in all files, documents, notes, and other information about the use of the statute.

This is dangerous nonsense. As I’ve argued in the past, using 18 U.S.C. 1512(c) to prosecute Capitol rioters was perfectly reasonable and defensible. Fourteen out of fifteen federal district judges in D.C. who considered challenges to the statute agreed that it was appropriate, as did two of the three judges in the D.C. Circuit who heard the case on appeal. The Supreme Court ultimately narrowed the scope of the statute in a 6-3 opinion, holding that it is limited to cases that involved the impairment of evidence in a proceeding. Even then, prosecutors were able to pursue the charge in some January 6 cases, based on an argument that the integrity of the electoral ballots was threatened or that defendants sought to introduce fake electoral ballots into the proceeding.

The claim that the Supreme Court’s decision to narrow the statute means using it was a “great failure” is baseless. The Court may have the final say on the statute’s scope, but that doesn’t mean the prosecutors’ contrary interpretation was wild or improper, especially when so many other federal judges agreed with them. And most defendants charged with obstruction were also charged with other crimes such as assaulting police officers or destroying property at the Capitol. It’s not as though they were singled out and charged only with a crime that Martin now believes was inappropriate.

It’s not clear what the scope of Martin’s review will be or whether any discipline of other prosecutors will result. But once again, what’s really going on here is an effort to rewrite history. The goal is to suggest that the fault regarding January 6 lies not with those who assaulted the Capitol but with overzealous prosecutors who improperly stretched a federal statute to go after them.

The January 6 investigation was the largest in Justice Department history. I’d argue that managing that investigation and bringing more than 1,000 criminal cases was one of the D.C. U.S. Attorney’s office’s finest hours (although it actually took years). The idea that these prosecutions were a “great failure” that needs to be investigated is just flat wrong. It’s also an insult to the career prosecutors and agents who worked to hold the Capitol rioters accountable.

I can’t imagine what morale is like in my old office. These events are a career prosecutor’s worst nightmare. They were doing their jobs, and doing them well, by pursuing these cases. Now they are having their actions criticized and investigated for political reasons. People there have devoted their careers to protecting the rule of law and keeping politics out of criminal prosecution. They did not sign up for this.

More Politics at the D.C. U.S. Attorney’s Office

The problems at my old office go far beyond just the response to the January 6 prosecutions. As I mentioned above, Trump has appointed Ed Martin as the acting U.S. Attorney for the District of Columbia. Martin is a Republican politician and lawyer who has no experience as a prosecutor. He has been active in Missouri Republican politics and in the Eagle Forum group founded by Phyllis Schlafley. He was a “Stop the Steal” organizer for Trump after the 2020 election and helped raise money for January 6 defendants. As a private attorney he represented three of those defendants, including one convicted of assaulting a police officer with an ax handle.

Martin is a Republican politician and activist, not a prosecutor, and that’s exactly how he has been behaving. A prosecutor’s job is to defend the rule of law and the justice system. Martin clearly believes his job is to use the power of his office to promote Trump and Elon Musk’s political agenda.

For example, consider this remarkable fan letter to Elon Musk that Martin posted on X, promising to protect the work of Musk’s DOGE group:

Martin vows to pursue those who might dare to resist Musk’s hostile takeover of the federal government, even if their conduct is not illegal but is merely (in Martin’s view) unethical. Federal prosecutors, of course, don’t have the authority to investigate mere ethics violations. That apparently won’t stop Martin from pursuing such people “to the end of the Earth.” (Seriously, someone needs to explain federal venue rules to this guy.)

Then there’s the fact that this letter, according to Martin’s post, was sent only via X. If you want to send Elon a message, you send him an email. Why post the letter only on social media? Once again, it’s politics, not federal prosecution. It’s designed to make Martin sound like a tough guy who will protect Elon. It’s also designed to deter anyone who might dare to challenge what Musk is doing by threatening to use the power of the federal justice system to punish them. Fall in line, people, or the U.S. Attorney will come after you — even if your conduct is lawful.

Martin has also praised president Trump for pardoning two D.C. police officers who were convicted in 2020 for murder and obstruction of justice for causing the death of a moped driver following a high-speed chase and then covering up what happened. This was a case brought by career attorneys in what is now his own office. Martin apparently believes the prosecution was political and that a pardon is appropriate because the victim was “scum” and a “thug”:

Put aside the political potshot at Biden, something a prosecutor who properly understood his role would not do. Martin is claiming again to be a tough guy who stands with and will protect the police. Note that this is the same guy who praised Trump’s pardon of hundreds of defendants convicted or charged with assaulting law enforcement officers during the January 6 riot - including one of Martin’s own clients. That’s a very odd way of showing that you “stand with the Blue.”

Irony and hypocrisy have long been dead in Washington. But Martin is dancing on their graves.

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Dropping the Eric Adams Case

On Monday the Justice Department ordered federal prosecutors in New York to dismiss the criminal case against New York City Mayor Eric Adams. The order came in a remarkable memo to New York prosecutors from Emil Bove III, the acting Deputy Attorney General and one of Trump’s former personal criminal defense attorneys.

Following a three-year investigation, Adams, a Democrat, was indicted last September on corruption and fraud charges. Prosecutors charged him with accepting more than $100,000 in luxury travel benefits in exchange for doing political favors for Turkish officials and with obtaining illegal foreign campaign contributions. In the most serious aspect of the indictment, they also charged that Adams used those illegal donations to fraudulently obtain millions of dollars in matching campaign funds from the city.

In the memo, Bove wrote that the order to drop the prosecution was made “without assessing the strength of the evidence or the legal theories on which the case is based.” He also wrote that the order “in no way calls into question the integrity and efforts of the line prosecutors responsible for the case.” But he said dismissal was required because the timing of the indictment suggested it was brought in retaliation for Adams speaking out against the Biden Administration’s immigration policies. Bove claimed this had improperly interfered with Adams’s campaign for re-election, in violation of Justice Department policy. He also claimed the case was interfering with Adams’s ability to devote time and attention supporting the Trump administration’s efforts to fight illegal immigration.

In other words: we’re not saying there’s anything wrong with the case. We are just ordering you to drop it for political reasons, so Adams can help carry out the president’s agenda. This is a breathtaking act of political interference from the White House in an ongoing criminal prosecution and a violation of the Justice Department’s Principles of Federal Prosecution.

In recent months Adams has been cozying up to Trump and urging city officials not to resist his proposals. He made a recent trip to Mar-a-Lago to kiss the ring, and his lawyers had been pitching Trump officials to drop the case and/or pardon Adams. Trump believes that his fellow New Yorker is another victim of a political “witch hunt” by prosecutors; at a dinner in New York last October he said that both he and Adams had been “persecuted.”

Bove’s suggestion that the indictment improperly interfered with Adams’s re-election in violation of DOJ policy is ridiculous. The policy of not taking overt steps in a criminal investigation that might interfere in an election is sometimes referred to as the “90-day rule;” DOJ generally will avoid such steps if the election is less than 90 days away. In this case, Adams was indicted eight months before the upcoming Democratic primary and more than a year before the 2025 mayoral election. The claim that this indictment violated DOJ policy amounts to a claim that a politician or candidate can never be indicted, no matter how distant their next election — at least not if you’re one of the president’s buddies.

But the even more remarkable aspect of the memo is the statement that dismissal is necessary because otherwise it might be too difficult for Adams to help carry out the president’s agenda on immigration and violent crime. There was a time when a president’s demand that a criminal prosecution of one of his allies be dropped for political reasons would have led to a “Saturday Night Massacre” series of resignations by officials refusing to send such a letter. Now the president’s personal attorneys who lead the Justice Department have no problem using the criminal justice system to support Trump’s political agenda.

The U.S. Attorney’s Office for the Southern District of New York is famously independent, earning it the nickname the “Sovereign District of New York.” It will be interesting to see how they react to the order to drop the case. There’s no doubt it ultimately will be dismissed, but we might see some prosecutors noisily resign in protest. The judge assigned to the case may also press prosecutors on the reasons for dropping the case, but in the end has little power to prevent it.

Bove ordered that the case be dismissed without prejudice, meaning that in theory it could be refiled in the future. That will give Trump more leverage to keep Adams in line; there will always be the implicit threat of bringing the case back if Adams makes Trump unhappy. There is also some discussion about whether the Manhattan DA could bring similar state charges that would be beyond the reach of Trump’s power. I don’t know how likely that is, but it’s something to watch.

Dark Times Ahead

I wish I had some better news or could point to a bright side in all of this. Less than a month into the new administration, things look pretty grim for the Justice Department. These early events are signs of how bad things can get in the next four years. DOJ is going to lose a lot of talented career people with years of experience and institutional knowledge who will decide they can’t put up with this. And the public is going to lose a lot of faith in the institution.

Because so much of the justice system relies on voluntary norms and the good-faith exercise of discretion, it’s much more difficult to defend that system against those who seek to corrupt it. Unlike many of Trump’s actions, his assault on the DOJ can’t readily be challenged in court. No one can file a lawsuit to reverse the decision to drop the Adams prosecution, or to undo Trump’s pardons, or to prevent officials from falsely claiming that the January 6 prosecutors and agents somehow misbehaved.

Hopefully in a future administration a new Attorney General will come in with the mission to restore the integrity and independence of the Justice Department, as happened during the post-Watergate era. But right now that seems a very long way off. I don’t know if the damage Trump is doing will be reversible.

On his first day in office, President Trump pardoned nearly 1300 defendants convicted of crimes related to the January 6, 2021 Capitol riot. He granted a full, unconditional pardon to nearly all of them, including hundreds who were convicted of assault on law enforcement officers, obstruction of justice, and other felonies. He also ordered the Justice Department to drop about 300 pending January 6 prosecutions that have not yet made it to trial or sentencing, granting those defendants pardons as well.

Trump also commuted the sentences for 14 members of the far-right militia groups the Oath Keepers and Proud Boys (the group Trump infamously instructed to “stand back and stand by” during a 2020 debate). These defendants were convicted of the most serious crimes, including seditious conspiracy for violently attempting to overthrow the government, and had received some of the longest sentences. The commutations mean they will be released from prison, but they will remain convicted felons and their civil rights will not be restored.

Trump had talked during the campaign about pardoning the January 6 defendants, whom he claimed were “hostages” who had been treated unfairly. But he and his allies, including Vice President Vance, also discussed taking a case-by-case approach and suggested violent criminals should not be pardoned.

I thought Trump might end up pardoning only those convicted of misdemeanors, such as unlawful entry on the Capitol grounds, but not the violent felons. Because polling shows that the pardons are politically unpopular, even among Republicans, I even thought there was a chance he might walk away from his pardon promises altogether once he was elected.

But no. Trump has granted blanket clemency to everyone who took part in the riot and sought to overturn the election that he lost. There was no case-by-case consideration. And he made it a top priority, acting only a few hours after swearing, once again, to protect and defend the Constitution of the United States.

It’s another first for Trump: never before has a new president violated his oath of office so quickly and thoroughly.

Trump’s action brings an abrupt end to the largest criminal investigation in Justice Department history. It is an unprecedented slap in the face to the justice system and to the judges, prosecutors, and law enforcement agents who toiled over the last four years to see that those responsible for this assault on our country were brought to justice. It’s part of Trump’s ongoing effort to rewrite history and whitewash what happened on January 6.

And it’s Trump’s most dangerous abuse of power to date.

A Different Category

Trump took many controversial steps on his first day in office, issuing Executive Orders that seek to overturn many of the Biden administration’s programs and priorities. But these pardons are in a completely different category.

Changing policies is one thing. For the most part, they are not permanent. Many of Trump’s Executive Orders can and will be challenged in court; some lawsuits have already been filed. Others are largely symbolic and cannot readily be implemented or enforced. Some, such as purporting to end birthright citizenship (which is guaranteed by the 14th amendment) or taking back the Panama Canal, will generate a lot of breathless press coverage but almost certainly will not go anywhere. Other policies can be changed again when there is a new administration with different priorities.

Pardons are different. They can’t be undone or challenged in court. The presidential pardon power is absolute, which is one reason Trump is so fond of it. There are no checks and balances at work here. The criminals who committed a violent assault on our democracy are forever free of any legal responsibility for it – although not from moral responsibility. The damage Trump has done to the justice system here cannot be undone.

An Insult to Law Enforcement

Republicans piously portray themselves as the party of law and order that defends and supports law enforcement. Trump’s actions prove otherwise.

Hundreds of law enforcement officers were violently assaulted on January 6. About 140 were injured. Those men and women put their lives on the line to defend our country and the Members of Congress who were huddled in fear inside the Capitol. The rioters assaulted them with baseball bats, batons, flag poles, pepper spray, and other weapons, while shouting curses and racial epithets and threatening to kill them. Five officers died as a result of their injuries or later took their own lives, and others suffered permanent injuries.

With these pardons Trump profoundly dishonors their sacrifice. He has declared that the true patriots and heroes are not the law enforcement officers who defended the Capitol but those who attacked them. Trump summoned the mob to Washington and sent them to the Capitol, then watched the riot unfold for three hours while doing nothing to stop it. The rioters assaulted the officers while acting on Trump’s behalf. Now he has set them free.

In another Executive Order on Monday, Trump instructed his attorney general to pursue the death penalty for anyone convicted of killing a law enforcement officer. This presumably is meant to signal that the Trump administration will support those officers and deal harshly with those who harm them. But these pardons reveal the truth: you can assault a law enforcement officer on Trump’s behalf and you won’t be held criminally responsible at all — even if the officer later dies.

Hypocrisy is nothing new in Washington, but this takes it to a breathtaking new level. I can’t understand how any law enforcement officer, agency, or organization could support Trump after he pardoned those who assaulted their comrades on his behalf - although I have no doubt that many of them still will.

The Pending Prosecutions

Another aspect of Trump’s order will get less attention but also is extremely troubling. He ordered the Department of Justice to dismiss the several hundred January 6 prosecutions that are currently pending.

This is an unprecedented violation of the Justice Department’s historical independence. The president does not tell DOJ who to prosecute or not prosecute - for good and obvious reasons. But norms like the rule of law and independence of the Department of Justice mean nothing to Trump.

Assuming she is confirmed, this administration will include an attorney general, Pam Bondi, who has shown herself to be a Trump loyalist. She has echoed false claims that the 2020 election was stolen and refused to disavow those claims during her confirmation hearing. And the president clearly will have no qualms about directing his attorney general to pursue cases against political opponents or drop cases against his allies.

In the first Trump administration there were some guardrails in place. There were people in the Justice Department and White House who still recognized the importance of keeping politics out of criminal prosecution and who stood up to Trump. It’s not clear any such guardrails are going to exist during the second Trump administration, where loyalty to Trump appears to be required above all else. Bondi promised during her hearing that she would not pursue cases for political reasons, but with Trump in charge there is reason for concern.

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Biden’s Preemptive Pardons

Trump supporters will no doubt respond to criticisms of the pardons by claiming President Biden also abused the pardon power. In his final days in office, Biden granted preemptive pardons to members of the House January 6 Committee, members of his own family, and others against whom Trump has promised to seek retribution. These people were not credibly accused of any crimes, much less charged or convicted. Biden pardoned them to head off any unjustified criminal cases against them, which could be financially and emotionally crippling even if they had no factual basis.

Such preemptive pardons are also unprecedented. I don’t like them, although I understand why Biden thought they were necessary. I fear we are starting down a road where every outgoing president grants blanket preemptive pardons to all members of his administration for any actions they took while in office – just to be safe. This would have been unthinkable and unnecessary in the pre-Trump era, but it’s where we are now.

But Biden’s preemptive pardons are not in the same moral or legal universe as Trump’s January 6 pardons. It should be obvious that a president protecting innocent people from threatened, unjust retribution is not the same as a president pardoning defendants who have been convicted for committing violent crimes on his behalf.

This “whataboutism” is part of the effort to gaslight the public by suggesting Trump is merely doing what all politicians do. That’s not remotely true. Just as a peaceful protest outside the Capitol is not equivalent to the January 6 riot, a preemptive pardon to protect an innocent person is not equivalent to the January 6 pardons of convicted criminals.

Trump’s Most Dangerous Abuse of Power

These pardons are morally wrong because they seek to erase responsibility for those who committed crimes on behalf of the president who granted them. But what they portend for the new administration is even more concerning.

There were reports during Trump’s first term of him telling aides they should just carry out questionable policies and, if they got into trouble, he would pardon them. Now he has sent a clear signal on day one of his new administration: if you commit crimes on my behalf, I’ve got your back.

When you combine that with the newly-minted presidential immunity created by the Supreme Court last summer, the prospects are grim. Trump, a man who has repeatedly shown he has no qualms about violating the law, knows he can commit crimes with impunity while in office if they can be characterized as official acts. And those who work for him can rest assured that if he orders them to commit crimes and they follow through, he will not hesitate to pardon them.

This is a blueprint for a lawless administration that knows it will not be held accountable for criminal acts. That would include, of course, crimes committed to interfere with the next presidential election to allow the party, if not Trump himself, to stay in power. Trump’s team came very close to overturning the 2020 election. No doubt they have learned some lessons and will not repeat the same mistakes.

These pardons are deeply troubling. What they signal about what may be coming in the next four years is even worse.

This outcome satisfies almost no one — not Trump’s allies, who believe the entire case was a witch hunt that never should have been brought, and certainly not his critics, who believe this tap on the wrist is hardly a sufficient punishment. But given the Supreme Court’s immunity ruling last summer and Trump’s re-election, this was probably the best possible outcome that remained. It allowed Merchan to impose a sentence that would not impinge on Trump’s presidential duties, as the Supreme Court apparently now requires. And it brings finality to the case and cements Trump’s status as a convicted felon.

In this case, at least, Trump was not able to bend the legal system to his will and avoid accountability for his criminal acts. It’s a small victory for those who still believe in the justice system and that no one is — or at least should be — above the law.

Justice Merchan deserves a lot of credit here. He did a masterful job, both during the trial and in all the post-conviction maneuverings, to finally get the case to this point. His advance signal that he would sentence Trump to an unconditional discharge was critical to convincing the Supreme Court not to intervene. And he did all this in the face of Trump’s repeated personal attacks and insults. He’s a true judge’s judge.

Trump with attorney Todd Blanche appearing remotely at today’s sentencing

Supreme Court Refuses to Intervene

At Trump’s request, Merchan had postponed the sentencing, originally set for July, until after the election. After Trump won the election he sought to avoid having the sentencing take place at all, arguing that the Supreme Court’s immunity decision, errors during his trial, and his election victory and duties as president-elect all required that the case be dismissed entirely.

Merchan rejected those arguments and scheduled the sentencing for today. The New York Appellate Division followed by the New York Court of Appeals (the state supreme court) upheld that decision. Trump then sought an emergency stay from the U.S. Supreme Court.

On Thursday evening, in a brief order, the Court rejected his request. The vote was 5-4, with Justices Alito, Thomas, Gorsuch and Kavanaugh saying they would have granted the stay. Chief Justice Roberts and Justice Amy Coney Barrett joined the three liberals in rejecting Trump’s request.

The good news is that the Court refused to intervene. The bad news is that the vote was 5-4. Even if we assume Alito and Thomas are lost causes, it should have been 7-2. There was no principled reason for the Court to intervene in this state court proceeding involving events that took place before Trump was president. This vote effectively confirms there are four Justices willing to discard basic legal principles to give Trump almost anything he wants. That’s a discouraging sign for the future.

As a side note, Justice Barrett continues to be very interesting. Of Trump’s three appointees to the Court, she is the most principled conservative. Unlike Kavanaugh and Gorsuch, Barrett has refused to fall in line with the Trump agenda. She and the Chief Justice saw through the flimsiness of Trump’s legal claims for postponing the sentencing and were not willing to accommodate him.

In the presidential immunity decision, although Barrett voted in favor of immunity, she wrote a separate opinion criticizing the majority for going too far. And in Fischer v. United States, the case last June limiting the scope of an obstruction of justice statute used to charge hundreds of January 6 rioters (and Trump himself), Barrett wrote a compelling dissent, joined by liberals Kagan and Sotomayor, accusing the majority of ignoring the plain language of the statute.

Republican president Dwight Eisenhower reportedly once said he had made two mistakes as president and both of them were sitting on the Supreme Court. He was referring to Earl Warren and William Brennan, who were put on the Court by the conservative Eisenhower and went on to become two of the greatest liberal justices of the 20th century. Barrett may be unlikely to become Trump’s Earl Warren, but she must be a great disappointment to him. I don’t expect she is getting invited to any Mar-a-Lago parties anytime soon.

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What Happens Now

Now that Trump has been sentenced, he can appeal his convictions through the state court system like any other defendant. The appeals will be handled largely by his attorneys so will not impose on his duties as president — one of the chief concerns of the presidential immunity decision.

Trump will argue that some evidence admitted in his trial was forbidden by presidential immunity, that there were other errors in the conduct of the trial, and that the charges against him were legally flawed. I think the last of these offers him the best chance. As I’ve written before, I’m not sure the state can show the required intent to defraud based on these internal records of a private company that were never shown to a government agency (or to anyone else). We’ll see what the New York courts have to say.

If he’s unsuccessful in the New York state courts, Trump will almost certainly ask the Supreme Court to throw out his convictions. That argument would be based primarily on presidential immunity; the Supreme Court is not likely to weigh in on issues of interpreting New York state law.

This appeals process will probably take 1-2 years or more. It will go on largely in the background while Trump is serving his second term. If any court were to reverse the convictions and order a new trial, that trial could only take place once Trump was out of office. It seems unlikely there would be any appetite for re-trying what would by then be a twelve-year old case.

Why the Sentencing Matters

You will hear some argue that this sentence is largely meaningless. Trump didn’t suffer any real consequences and received favorable treatment to which no other defendant would be entitled. It just shows once again, they’ll say, that he is above the law.

(As another aside, it’s not completely true that the conviction carries no practical consequences. As a convicted felon, Trump cannot own a firearm. It may affect his right to vote in Florida. A more amusing point: this website lists countries that may not allow you to enter if you have a felony conviction. The list includes Israel, Japan, New Zealand, and the United Kingdom — although we might assume a country would make an exception for the U.S. president. Canada also prohibits entry by felons in some circumstances, which may make those negotiations about becoming the 51st state a bit awkward.)

But as I wrote here in The Atlantic last November, it was still important for this sentencing to take place. When it comes to Trump, New York was sort of the rule of law’s last stand.

Special Counsel Jack Smith has dismissed his two federal prosecutions, based on Trump’s election and the DOJ policy that a sitting president may not be prosecuted. The only remaining battle now, which will play out over the next few days, is whether his reports of his investigations will be publicly released. Trump is fighting to keep them secret.

The Georgia state prosecution has been derailed by the Georgia Court of Appeals ruling that DA Fani Willis must be disqualified for a conflict of interest. She is appealing that decision to the Georgia Supreme Court. But even if she wins that appeal and the unwieldy case actually makes it to trial someday, it will be without the lead defendant Donald Trump. Even if Georgia puts his fourteen remaining co-defendants on trial for conspiring to overturn the state’s 2020 presidential election, it will not be allowed to include the sitting president in that prosecution.

But in New York, despite all of his frantic legal maneuvering, in the end Trump was not able to avoid something at least approaching justice. The case was not dismissed or postponed indefinitely. It is concluded, and he stands as a convicted felon.

The best response to a claim that this sentence was meaningless is to look at how mightily Trump struggled to keep it from happening at all. It clearly wasn’t meaningless to him. Regardless of the actual sentence, the legal status of “convicted felon” still matters. It has a meaning in the justice system and to those of us who respect that system. It matters for history, where he will ever be recorded as the first convicted felon to assume the office of the presidency. And it matters to Trump, who worries about his image above all else.

Today showed that Trump’s power is not unlimited. In this case, at least, the legal system withstood his assaults and reached a final determination of his criminal culpability. In the end, he was not able to prevent that from happening.

To those who still believe in the rule of law, that may be a small victory — but it’s not nothing.