Justice and the Rule of Law [Trump Two Remix]

[Tiassa]

Good Cop, Bad Cop

This is actually one of those things that's kind of hard to explain. CBS News↱ reports:

What was happening in the criminal case of Nathalie Rose Jones, who was facing charges in Washington, D.C., federal court this summer, wasn't typical.

A grand jury of D.C. citizens on Tuesday had denied the Justice Department's request to indict Jones, who was accused of a federal crime for allegedly posting an Instagram threat against President Trump ....

.... This grand jury's rejection of the Justice Department's request for an indictment was one of at least four such instances in the past week in which a grand jury denied an indictment in the District of Columbia.

"Not only have I never heard of this happening, I've never heard of a prosecutor who's heard of this happening," said former federal prosecutor Brendan Ballou, who served in the U.S. Attorney's Office for in D.C. until January 2025.

"This is not the fault of career prosecutors, but rather the office's failure—again and again—to secure indictments suggests that the administration has absolutely destroyed its credibility with jurors," Ballou told CBS News.

Another former federal prosecutor, Victor Salgado, said, "It is exceptionally rare for federal grand juries to reject proposed charges, given the low evidentiary bar for indictment and the Justice Department's policy of pursuing cases only when there is sufficient evidence to both secure and sustain a conviction."​

The short form:

1) This is very abnormal
2) Career prosecutors are not without culpability
3) The circumstance suggests extraordinary danger​

See, the thing is, one of the reasons prosecutors can, as the saying goes, indict a ham sandwich, is that prosecutors won't seek indictment unless they are sure they can get it; generally speaking, they won't file charges in a case they don't think they can win.

And while we seek to kid-glove the career prosecutors, because, come on, between the Trump administration itself and the jokers appointed to be U.S. Attorneys (Pirro, Martin, Habba, &c.), it's easy to blame the politicians, but there are other choices for the prosecutors themselves than simply following orders.

For instance, what does the U.S. Attorney who runs the office say, and here we already know the answer: Pirro wants max charges for max sentences. This is different from how these offices usually operate, and we already saw a grand jury refuse to indict a sandwich. Asking a grand jury to overcharge a former Dept. of Justice employee for throwing a sandwich was a bit much.

To the other, more toward Ballou's point in defense of career prosecutors, the failure to secure an indictment against Ms. Jones appears to reflect juror sentiment about many things, and we probably need not parse the difference between saying one will, or one is willing to. And, with everything else going on, her statement that Trump was "terrorist" and "Nazi" probably failed to offend the jurors.

CBS News also reports that federal prosecutors failed to secure an indictment against Sydney Reid, accused of impeding officers; there are any number of reasons why jurors said no, but the most apparent problem here is the escalation of charges compared to her actual behavior, though the government's entire story is permeated with the question of Trump administration credibility; if, for instance, jurors were sensitive toward who is actually a gang member, then prosecutorial claims that Reid disrupted the transfer or gang members might have further eroded juror confidence. In the end, federal prosecutors presented thrice, and all three times failed to secure a true bill.

And there is also the case of Alvin Summers, arrested after a foot chase related to a traffic stop. As Summers' attorney suggested in a filing after the grand jury refused to indict, the charges were based on the testimony of one officer wearing a body camera, and, "That officer's testimony was rejected by the grand jury, presumably after reviewing the body-worn camera video."

On Monday, this week, all of two weeks after his arrest, prosecutors filed a motion to dismiss charges against Alvin Summers.

Again, no, this is not normal. And while it is easy to focus on the obvious, that political appointees have ordered the career prosecutors to do something stupid, it is not simply the discrediting behavior of the Trump administration, but also the choices of Assistant U.S. Attorneys to follow orders and attempt to bring cases they can't win. But if the former special counsel Ballou suggests the "office's failure … to secure indictments suggests that the administration has absolutely destroyed its credibility with jurors", there is also the fact that the career prosecutors his analysis defends did follow orders to pursue doomed, even notorious, prosecutions.

And that is why the circumstance suggests extraordinary danger. We caught a whiff of this before, under AG Barr during Trump's first presidency, when he instructed DoJ to depart from protocol in order to pursue the president's political enemies. And the law enforcers did just that. So, while it is tempting to say, "This is not the fault of career prosecutors," the indication is that when the order comes down to pursue spurious charges, the career prosecutors will not dissent for the sake of justice or rule of law, but, rather, will just follow orders and pursue spurious charges.

For the cynical or historically seasoned, the idea of such prosecutorial corruption is hardly new. But this episode approaches a threshold of public acknowledgment with the potential to inflict genuinely permanent damage not just to the Republic, but the world at large and thus the species.

Consider the "bad seeds" thesis on police corruption. Escalating charges without evidence to support the difference is the behavior of a bad seed. It's a strange day when grand juries are so disagreeable, but the thing about public acknowledgement of a circumstance like this is the visibility of what is happening. It's one thing if we don't necessarily doubt that "the administration has absolutely destroyed its credibility with jurors", but the tendency toward willful overstatement is the sort of thing the People at large can presume is left to the political officers; that is, it's not supposed to be so easily apparent, and even then, it's only supposed to be the bad seeds. By the bad seeds thesis on police corruption, the good cops are at least a little overdue.
____________________

Notes:

MacFarlane, Scott. "D.C. grand jurors reject latest wave of Justice Dept. indictment requests". CBS News. 3 September 2025. CBSNews.com. 5 September 2025. https://www.cbsnews.com/news/d-c-grand-jury-reject-justice-dept-indictment-requests/

 

[TheVat]

But if the former special counsel Ballou suggests the "office's failure … to secure indictments suggests that the administration has absolutely destroyed its credibility with jurors", there is also the fact that the career prosecutors his analysis defends did follow orders to pursue doomed, even notorious, prosecutions.

Indeed, there is a disturbing sycophancy of fed prosecutors, going after what aren't even hors d'oeuvres let alone Judge Wachtler's famous ham sandwich.

It points to the power of fear in a MAGA regime that rules by fear and coercion, as it drives a submissiveness in legal professionals to poorly qualified political appointees. They go through the idiotic motions in order to protect themselves and their families. This is Fascism 101.

ETA: And enjoyed the whimsical connecting of the recent sandwich hurler in DC with that renowned metaphorical ham sandwich.

 

[Tiassa]

This Is What It Feels Like, and This Is What It Takes

One thing that is difficult to explain to the people who weren't there is how much of not just a reversal, but an actual betrayal it actually looks like.

Jack Smith was appointed by Merrick Garland in November of 2022 to continue the ongoing investigations into the January 6th attack on the Capitol and the unlawful retention of national defense information and subsequent obstruction of justice by Donald Trump.

In 2023, Jack Smith indicted the then-former president by following the facts and the rule of law. This week, he spoke at the Schar School of Policy and Government at George Mason University with a dire warning about the assault on the rule of law at the Justice Department … Former Deputy Director of the FBI Andrew McCabe, was in the audience and described to me what he heard.

Smith spoke about the rule of law being under attack in a way that he hasn't seen in his lifetime, and that he's saddened by the firing of selfless public servants, the government using its vast powers to target citizens for exercising their constitutional rights, and the loss of credibility with the courts and the people.

If you listen to the UnJustified podcast, you'll recall that Andy and I have been talking about the destruction of the presumption of regularity and the loss of the court's faith in the Justice Department at great length. Jack Smith shared those sentiments in his speech.

“The DOJ was my home for many, many years. That home is now on fire,” he said.

(Gill↱)​

It is never clear, at this level of involvement and participation and awareness, what the actual thresholds are, but we might consider a line from earlier this year↗: Most people complaining about Biden's pardons overlook that President George H. W. Bush pardoned his fellow conspirators and participants in an illegal international scheme. Ironically, the Attorney General who advised him to do so is the Attorney General who told the Department of Justice to deviate from its own standards and protocols in order to prosecute Donald Trump's political enemies.

The overlapping point, here, is that if the answer was, "No, we don't prosecute that under this statute," and the response from Bill Barr was, "Deviate from protocols and prosecute the son of the president's rival," Jack Smith would have at least asked why. It's an important part of the story, because corrupt prosecutions are part of what pardons are for, and if a political rival's family should be excluded from that principle simply because a president demands, then the prosecution stands out for being exceptional.

This is something that the Party of Law and Order ought to be able to understand. This has been going on for a while, now, and among those who pay attention to the details, none will be complaining that Smith waited until now to say something. Certain outcomes aren't supposed to happen. Certain circumstances are easily, and by principle, doubted, simply because they aren't supposed to happen. DoJ was on fire, last time, too, but this time there is just no question that it's arson.

(It's also impossible to pretend this isn't #WhatTheyVotedFor.)
____________________

Notes:

Gill, Allison. "Jack Smith: 'The Department of Justice Was My Home...That Home is Now On Fire.'" The Breakdown. 20 September 2025. MuellerSheWrote.com. 21 September 2025. https://www.muellershewrote.com/p/new-jack-smith-the-department-of

Spoiler

 

[Tiassa]

When Government Doesn't Work (#WhatTheyVotedFor)

Adam Klasfeld↱ reports:

A federal judge found it "appears ... that multiple employees of the Department of Justice may have violated" local rules in SDNY guaranteeing Luigi Mangione's right to a fair trial.​

And, yes, the two-page order↱ is pretty straightforward.

On September 23, 2025, the Defendant filed a letter advising the Court of various public statements made about this case by various members of the government … It appears from this letter that multiple employees at the Department of Justice may have violated Local Criminal Rule 23.1, and this Court's order of April 25, 2025 specifically identifying the strictures of this rule for counsel and directing the prosecution team to ensure that the highest levels of the Department of Justice, up to and including Attorney General Bondi, were aware they were bound by this Rule.

For the avoidance of doubt or confusion, the Rule provides that, in a criminal case, "It is the duty of the lawyer or law firm, and of non-lawyer personnel employed by a lawyer's office or subject to a lawyer's supervision … not to release or authorize the release of … opinion that a reasonable person would expect to be disseminated by means of public communication, in connection with pending … criminal litigation with which they are associated, if there is a substantial likelihood that the dissemination will interfere with a fair trial or otherwise prejudice the administration of justice." … The rule goes on to state that "any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence of the case" is a matter that "presumptively involves" such a substantial likelihood … The statements referenced in the September 23 Letter by two high-ranking staff members of the Department of Justice, including within the Office of Attorney General, appear to be in direct violation of this rule and the Court's April 25 Order.

Accordingly, the Government is directed to respond to those portions of the September 23 Letter by October 3, 2025, and to include with their response a sworn declaration from a person of suitable authority … that explains to the Court how these violations occurred, despite the Court's April 25 Order, and what steps are being taken to ensure that no future violations occur. The Government is also directed to advise the Deputy Attorney General, for dissemination with the Department as appropriate, that future violations may result in sanctions, which could include personal financial penalties,contempt of court findings, or relief specific to the prosecution of this matter. The Government's declaration shall also include confirmation that this message has been conveyed to the Deputy Attorney General.​

Judge Garnett's tone suggests there isn't going to be much room for pretending it didn't happen. We'll have to see how this goes.

The international reminder is that this is a federal court, and regardless of how badly Trump's DoJ might still screw up the Mangione prosecution, that speaks nothing of how the State of New York feels.

To the other, it might be possible to somehow foul the state prosecution, but that would require a certain amount of concerted effort to irreparably taint every piece of evidence. I'll believe it when it happens.

https://twitter.com/x/status/1970875036006248598

 

[Tiassa]

Ineffable: Federal Court "Blistering" Against Trump Admin Persecution of Political Views

I … I have no words.

Adam Klasfeld↱ summarizes:

A federal judge finds that the Trump admin's policy targeting pro-Palestinian students for deportation violated the First Amendment.

His blistering, 161-page ruling starts with a threat he received in chambers and his response.​

One hundred sixty-one pages, beginning with a postcart sent to his chambers, and framed as a specific response; the ruling begins:

Dear Mr. or Ms. Anonymous,

Alone, I have nothing but my sense of duty.

Together, We the People of the United States –- you and me -- have our magnificent Constitution. Here’s how that works out in a specific case –-​

And it ends:

I hope you found this helpful. Thanks for writing. It shows you care. You should.

Sincerely & respectfully,
Bill Young

P.S. The next time you’re in Boston [the postmark on the card is from the Philadelphia area] stop in at the Courthouse and watch your fellow citizens, sitting
as jurors, reach out for justice. It is here, and in courthouses just like this one, both state and federal, spread throughout our land that our Constitution is most vibrantly alive, for it is well said that “Where a jury sits, there burns the lamp of liberty.”​

And in between, well, like Klasfeld put it, "the Trump admin's policy targeting pro-Palestinian students for deportation violated the First Amendment". And, "blistering".

To wit—

II. FINDINGS OF FACT⁴ Actually, there is but little dispute over the facts. Here they are ....

.... ⁴ As this Court has reiterated during trial, we live in the real world. There are facts that exist outside those presented at trial of which the Court can take judicial notice and other facts of general knowledge which while not dispositive of any issue here, provide context. Those facts are presented mostly in the footnotes to these Findings of Fact and have citation references outside of the record.​

—the footnote is the Court, in a one hundred sixty-one page ruling saying, no, we're not rehashing all that, here. This ruling could probably be a thousand pages, and the Trump argument would still sputter and demand another go. It's hard to explain the significance of this ruling as a Thing That Should Not Be, and His Honor knows it.

And the footnotes in this ruling are incredible, as are the thirteen pages following the Conclusion.

But, sure, the Court's frustration is genuinely ineffable. The Reagan-appointed judge has a career's worth of reasons to expect better of the United States government.
____________________

Notes:

Young, William G. "Findings of Fact and Ruling of Law, Pursuiant to Fed. R. Civ. P 52(A)". AAUP et al. v. Rubio et al. United States District Court District of Massachusetts. 30 September 2025. Storage.CourtListener.com. 30 September 2025. https://storage.courtlistener.com/recap/gov.uscourts.mad.282460/gov.uscourts.mad.282460.261.0.pdf

https://twitter.com/x/status/1973066872783274097

 

[Tiassa]

in re "Blistering"?

AAUP v. Rubio, Page 98↱:

And then there's the issue of masks. This Court has listened carefully to the reasons given by Öztürk's captors for masking-up and has heard the same reasons advanced by the defendant Todd Lyons, Acting Director of ICE. It rejects this testimony as disingenuous, squalid and dishonorable. ICE goes masked for a single reason―to terrorize Americans into quiescence. Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked marine? It is a matter of honor―and honor still matters. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it. "We cannot escape history," Lincoln rightly said "[It] will light us down in honor or dishonor, to the latest generation."​

Ouch.

 

[TheVat]

(Quoting Judge Young) To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it.

Well said, your honor. I hope they felt the sting of that lashing.

Testimony that is "disingenuous, squalid and dishonorable..." Just another Tuesday in Magamerica.

 

[Tiassa]

The Breathless Pace of Failure

The commentary, here, from Roger Parloff↱:

So it wasn't just me. Mag. Judge Zia Faruqui, on bench since 2020, had also never seen a "Report of a Grand Jury's Failure to Concur in an Indictment" until last week.​

Parloff points to a footnote:

¹ Until last week, the Court was unaware that a form even existed for this filing. That is because prior to a month ago, there was never a need to repeatedly return no bill indictments. What has changed between now and then are the types of cases prosecutors are bringing brought to federal court—many with apparent Constitutional violations. See, e.g., United States v. Torez Riley, 25- mj-154. Indeed, earlier this month, the government indicted a case via a federal grand jury months after prosecutors refused to formally charge it. At the detention hearing, the prosecutor admitted that the reason for the initial declination was the self-evident “Fourth Amendment issues.” See United States v. Richard Thompson, 25-cr-271. Even there, the government followed longstanding norms and Rule 6 by taking its chances with a federal grand jury.

(U.S. v. Stewart↱; boldface accent added)​

The order from Judge Faruqui in United States of America v. Stewart is three pages long, comprised of approximately two pages of order text. His Honor is as disbelieving as any we've encountered in the time of Trump:

A federal grand jury refused to return an indictment in this case … This was once unheard of, but has become common of late.¹

Typically, when a federal grand jury refuses to return an indictment in a case, either the government takes the message as a warning to go no further or, hopefully in only the rarest of cases, presents the indictment to another federal grand jury.

To this judge's knowledge, what has never happened before is doing an end around the federal grand jury completely. Yet that is what has happened today.

Today, prosecutors again presented a single count federal indictment against the defendant, but this time before a Superior Court grand jury. After receiving a true bill from that local grand jury, prosecutors sought to return the federal indictment in federal court. At a minimum, this is very unseemly; more than likely, it is unlawful. Not to mention, this only deepens the growing mistrust of the actions of prosecutors. That is a sentiment that was once unthinkable, but the irregular is now the regular. See Fed. Educ. Ass'n v. Trump … (Judge Friedman, a renowned former prosecutor and judge, recently collected cases addressing this topic and concluded that "in just six months, the President of the United States may have forfeited the right to a presumption of regularity.") Prosecutors used to not look for loopholes. They sought justice and respected the decisions of juries, favorable or not.²

The preliminary hearing in this matter is set for October 9, 2025. Multiple federal grand juries sit between now and then.³ Why not go back before one of those grand juries?​

And the other footnotes that go there:

² Indeed, the ABA Model Code of Professional Responsibility EC 7-13 states that "the responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." It is particularly surprising that the government was willing to sacrifice its credibility for an indictment at any cost in a run-of-the-mill case such as this.

³ At the hearing, the government noted that they previously relied on Superior Court grand juries to charge federal cases when federal grand juries were unavailable during the COVID-19 pandemic. This is a far cry from what happened today. Here, federal grand juries―plural―were available, unlike during COVID-19 when there were none at times. And in none of those cases had a federal grand jury already refused to return an indictment.​

Those are notes you should never see in a court order. The mere suggestion that federal prosecutors have injured their presumption of regularity should always be the stuff of angry crackpottery.

"Historically [the grand jury] has been regarded as the primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia U.S. 375, 390 (1962). These words from the Supreme Court are haunting given what is before the Court today. The undersigned will not rubberstamp the breaking of decades-long norms and the rule of law. As such, the Court refuses to take the grand jury return―another first in this District.​

If you would please indulge: If I recall how long I've been around this site, and plenty have been around a while, themselves, the thing is, regardless of what anyone might have thought of my legal analyses, over the years—(I'm not a lawyer or any sort of expert on legal history)—at no time along the way could I have genuinely imagined this sort of turn for law enforcement. One of the challenges about projecting how tyranny goes is justifying our expectation that a law enforcer would actually behave this way. Until it happens, there is just some stuff you wouldn't imagine because it's not supposed to be anywhere on the map.

Not unrelated to the banality of evil is a question of what stupidity we might expect of the hapless. No prosecutor should ever pretend to be such an idiot.
____________________

Notes:

Faruqui, Zia. "Order". United States of America v. Kevontae Stewart. United States District Court for the District of Columbia. 29 September 2025. Storage.CourtListener.com. 1 October 2025. https://storage.courtlistener.com/recap/gov.uscourts.dcd.285023/gov.uscourts.dcd.285023.12.0.pdf

https://twitter.com/x/status/1973366199330414990

 

[TheVat]

Soon we will see ham sandwiches in a state of relative freshness as they are released from custody. If grand juries refuse quickly enough, the lettuce may still be crunchy.

My concern is that tyrants, with practice, can become proficient in getting to jurors.

 

[Tiassa]

Update: U.S. v. Reid

Gather no moss: Exploding heads don't roll.​

in re—

CBS News also reports that federal prosecutors failed to secure an indictment against Sydney Reid, accused of impeding officers; there are any number of reasons why jurors said no, but the most apparent problem here is the escalation of charges compared to her actual behavior, though the government's entire story is permeated with the question of Trump administration credibility; if, for instance, jurors were sensitive toward who is actually a gang member, then prosecutorial claims that Reid disrupted the transfer or gang members might have further eroded juror confidence. In the end, federal prosecutors presented thrice, and all three times failed to secure a true bill.

—DoJ went ahead and prosecuted Reid, anyway. Aaron Blake↱ explains the acquittal:

Pirro’s office shopped this case to three grand juries. None of them would indict on felony charges.

So the case was brought as a misdemeanor.

The jury unanimously rejected even that.​

I cannot express clearly or emphatically enough that what we are witnessing is intrinsically connected to "bothsides" false equivalence. They're losing because they are behaving in such manners as we should never see of American law enforcers. This is the kind of stuff that offends people when we suggest law enforcers actually behave this way. But it's kind of like Mosleh et al.↗ on social media behavior, "Differences in misinformation sharing can lead to politically asymmetric sanctions", or, "differential sharing of misinformation by people identifying with different political groups could lead to political asymmetries in enforcement, even by unbiased policies".

https://twitter.com/x/status/1978997565489033477

 

[Tiassa]

#catchphrase | #WhatTheyVotedFor​

A federal judge has blocked the Trump administration's attempt to simply fire federal workers affected by the government shutdown:

[Judge Illston] added it was "ironic" the administration may be violating the Antideficiency Act—the 19th century law that governs federal spending during a shutdown—by carving out human resources employees from furloughs so they could carry out RIFs. She also cited Trump's and Office of Management and Director Russ Vought's claims that RIFs would target "Democrat programs" in saying the cuts were intended as "political retribution."

For the government's part, Velchik argued that it was "obviously true" that if Congress does not explicitly fund a program, the executive branch should not carry it out. Additionally, he said, RIFs are permitted before, during or after a shutdown. During a funding lapse, however, the government has "all the more reason" to engage in layoffs, he said. Such an approach was not "arbitrary and capricious," but instead "good policy" because the impacted employees are furloughed and incurring future obligations including back pay when the government reopens.

The argument could raise eyebrows in legal circles as the Trump administration has for the last several weeks suggested it is not required to offer back pay—despite a 2019 law that explicitly requires it—and Congress must instead affirmatively act to authorize it.

Velchik further argued that because Trump previously used the "you're fired," catchphrase, he should have the authority to carry out mass layoffs across the federal workforce.

"Like, this is what they voted for," Velchik said. "Above all else, this is what he's known for doing."

(Katz↱)​

Put simply: The excerpt observes two problems in the Trump administration's argument. First, DoJ attorney Michael Velchik contradicts the Trump administration on back pay for affected workers. Also, the Trump administration argument asserts this really is what they voted for.

You know, a catchphrase. "Like, this is what they voted for," Velchik said. "Above all else, this is what he is known for doing."

And that's in addition to the judge observing the possibility of lawbreaking. Oh, there is also a part where the plaintiff's attorney asks the court to compel a reticent government to be more forthcoming; per Katz, "Illston said she was still weighing whether to grant that request but thought the government made a strong argument that it should be required to do so."
____________________

Notes:

Katz, Eric. "Shutdown layoffs indefinitely blocked following new court injunction". Government Executive. 28 October 2025. GovExec.com. 28 October 2025. https://www.govexec.com/workforce/2...locked-following-new-court-injunction/409120/

 

[Tiassa]

Update: NOT GUILTY — Jury Acquits Sean Dunn

• Previously↑: 「… we already saw a grand jury refuse to indict a sandwich. Asking a grand jury to overcharge a former Dept. of Justice employee for throwing a sandwich was a bit much.」​

The Department of Justice charged Sean Dunn, anyway, and now we have an answer; per CNN↱:

The man who threw a Subway sandwich at a federal officer in the early days of the Trump administration's law enforcement surge in Washington, DC, earlier this summer has been found not guilty of assault ....

.... After the verdict was read, Dunn told reporters that he was "relieved and looking forward to moving on with my life."

Dunn's legal team could be heard loudly celebrating behind closed doors. Prosecutors leaving the courtroom declined to comment.

Jurors had deliberated for roughly 7 hours on the single charge.

Dunn's attorneys did not argue over the facts of the case, but rather focused on whether the sandwich throw was enough to constitute an assault of an officer. The officer who was hit with the sandwich, Greg Lairmore, told jurors that colleagues had given him gag gifts after the incident, including a toy sandwich and a patch with the words "felony footlong."

"They all think it's funny," Dunn's attorney, Sabrina Shroff said of the officers in closing arguments Wednesday, citing the gag gifts that Lairmore said he put on a shelf at work and his

While the officer claimed the sandwich "exploded" on his chest and left smells "of onions and mustard," defense counsel showed a photo of the sandwich after the throw, noting that it was still in its Subway wrapping.

"A footlong from Subway could not and certainly did not inflict bodily harm," Shroff added Wednesday, arguing that the legal requirements for the assault charge had not been met by the sandwich throw.​

Step One: Overcharge.

Step Two: Get caught lying.

Step Three: Leave courthouse without press comment after acquittal.

The trial, which lasted just shy of two days, highlighted how the US Attorney for DC, Jeanine Pirro, is willing to bring assault cases to federal court, despite how weak they may be. Also highlighted is the continued resistance DC residents have shown to these cases, including by a grand jury first declining to bring a harsher charge against Dunn earlier this year.​

U.S. Attorney Jeanine Pirro, a former prosecutor, celebrity TV judge, and conservative television host, thought she knew better than a grand jury.

†​

It's one thing if this is #WhatTheyVotedFor, but this is also what it gets them. It's hardly new; there is a lot of American antiliberal sentiment arising from this sort of conservative failure. When the right wing overpromises and then fails because they could never succeed, they blame the opposition; it's part of what fuels superstitions about shutting down discussion, or everyone who disagrees, or violating a First Amendment right to censor and suppress unsatisfactory speech or religion.

And when you gather up enough of that gullible resentment to empower it, you will see them fail anew, and just get angrier. Their anger turns to hatred. Their hatred turns to violence. And that's why they're the real victims, here.
____________________

Notes:

Lybrand, Holmes. "DC sandwich thrower found not guilty of assault". CNN. 6 November 2025. CNN.com. 6 November 2025. https://www.cnn.com/2025/11/06/politics/sean-dunn-dc-sandwich-thrower-verdict

 

[Wizard of Whatever]

Soon we will see ham sandwiches in a state of relative freshness as they are released from custody. If grand juries refuse quickly enough, the lettuce may still be crunchy.

My concern is that tyrants, with practice, can become proficient in getting to jurors.

Evil lies. That is an advantage they have over good.

 

[Tiassa]

I Can't Explain (I Wish I Could)

It's not a question of what is going on, nor even the stupidity of it all, but the significance.

So, this morning, Roger Parloff↱ observed:

In USA v Comey, the govt has appealed to Judge Nachmanoff the magistrate judge Fitzpatrick's surprise order of Wed to turn over all grand jury minutes to Comey. At the Wed. hearing, the govt had not hinted that it would do this.​

A random author and attorney↱ commented:

I don't know what things are like in the Eastern District of Virginia, but in the District of South Carolina, when I was a District Judge's law clerk, this appeal would not have been well received.​

And, again↗, I'm not a lawyer or any sort of actual expert, but, yeah, even I know that. No, I'm not knocking the comment; rather, the U.S. Attorneys who filed that appeal know it, too.

Along the way, Marcy Wheeler↱ suggested Comey "includes his privilege challenge: bc he needs to see if the testifying agent relied on privileged info", and this is part of her ongoing analysis:

Comey will not prevail on his motion for the grand jury transcripts until after the vindictive prosecution motion is briefed. But there's nothing to stop Nachmanoff from making the same request that Currie did, to receive the transcripts for in chambers review. Similarly, there's nothing to prevent William Fitzpatrick, the Magistrate Judge who'll hold a hearing on the privilege question this Wednesday, to do the same.​

As it was, Fitzpatrick did, and then all this happened. That is, three hours later, Parloff↱ reported:

Judge Nachmanoff REJECTS govt's claim that magistrate judge Fitzpatrick lacked the authority to order grand jury minutes turned over to Comey but REMANDS to Fitzpatrick to make certain requisite findings first.​

Former U.S. Attorney and MSNBC analyst Joyce White↱ checked in almost immediately:

The fact that this didn't take Judge Nachmanoff any time at all underscores how serious the government's failure was. Welcome to the rocket docket.​

It really can read like a fascinating drama if that's the sort of thing you're into, but what is really hard to explain is the magnitude of the fact of the range of implications. To a certain degree, it sounds like bad comedy; flip-side, the setup is complex: American football, sure, but this isn't like a team coming apart with mental-mistake penalties, and that wouldn't explain using a helicopter to tackle the equipment manager, and that's not a rulebook submitted into evidence but your mother's recipe file. This isn't the stuff of television bad-guy prosecutors; it isn't the stuff of clownish corrupt law enforcement oafs in a streamer-budget comedy. This is life being stranger than fiction; the idea of U.S. Attorneys behaving like this ought to be unthinkable. And that's not the prosecution itself; that sort of tyranny is easily imagined. But the clown show. It's not just not supposed to happen; it's not supposed to be possible, the clown show.

Try this: The Party of "Government Doesn't Work" has managed to not only show such corruption is possible, but they have diminished Department of Justice credibility in the most extraordinary way; compared to the prospect of prosecuting political enemies, if this doesn't end with some of these clowns in prison, DoJ can never recover what credibility it has lost. The Party of "Back the Blue" has damaged American law enforcement, and possibly permanently.

Again, the magnitude of the fact of the range of implications. Ineffability: I can't explain.
____________________

Notes:

Wheeler, Marcy. "Jim Comey and the Crown Jewels of the Fevered Conspiracy against Rights Conspiracy". emptywheel. 2 November 2025. emptywheel.net. 7 November 2025. https://www.emptywheel.net/2025/11/...fevered-conspiracy-against-rights-conspiracy/

https://twitter.com/x/status/1986108398547464391

 

[Tiassa]

These Things That Should Not Be
in re U.S. v. Comey

The Eastern District of Virginia delivered a genuinely devastating Memorandum Opinion, today, striking at the heart of what the U.S. Department of Justice does:

This matter is before the Court to address the narrow issue of whether there are particularized and factually based grounds to justify the disclosure of grand jury materials to the defense pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(ii). For the reasons set forth below, the Court finds the record in this case requires the full disclosure of grand jury materials. In so finding, the Court recognizes this is an extraordinary remedy, but given the factually based challenges the defense has raised to the government’s conduct and the prospect that government misconduct may have tainted the grand jury proceedings, disclosure of grand jury materials under these unique circumstances is necessary to fully protect the rights of the accused.​

That paragraph says something no court should ever have cause to say.

And then there are these:

Having been requested by the government to review the grand jury materials, the Court has identified two statements by the prosecutor to the grand jurors that on their face appear to be fundamental misstatements of the law that could compromise the integrity of the process. Both statements by the prosecutor are in response to questions by grand jurors directly related to communications involving Mr. Comey.

First, after having advised the grand jurors that the prosecutor was their legal advisor (ECF 178-1 at 46), the prosecutor stated:

[redacted] (ECF 178-1 at 105)​

The prosecutor's statement that [redacted] is a fundamental and highly prejudicial misstatement of the law suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial. The prosecutor's statement ignores the foundational rule of law that if Mr. Comey exercised his right to not testify the jury could draw a negative influence from that decision. See Griffin v. California, 380 U.S. 609, 615 (1965) (holding that the Fifth Amendment "forbids either comment by the prosecution on the accused silence of instructions by the court that such silence is evidence of guilt.") The prosecutor's statement that [redacted] may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey's guilt beyond a reasonable doubt at trial, the burden shifts to Mr. Comey to explain away the government's evidence. See Victor v. Nebraska, 511 U.S. 1, 22 (1994) (holding that the Due Process Clause "requires the government to prove a criminal defendant's guilt beyond a reasonable doubt"). In addition, the statement by the prosecutor was made in response to challenging questions from grand jurors, the context of which suggests the grand jurors may have reasonably understood the prosecutor to mean that if she could not satisfactorily answer their questions, then Mr. Comey would "[redacted]" answer these questions at trial.

Second the prosecutor told the grand jury there was [redacted] ECF 178-1 at 106. That statement clearly suggested to the grand jury that they did not have to rely on the record before them to determine probable cause but could be assured the government had more evidence―perhaps better evidence―that would be presented at trial ....

.... Finally, the record is well established that the grand jury was originally presented with a three-count indictment, signed by the prosecutor. ECF 3, 10. The grand jury, however, rejected Count 1 of the original indictment and found probable cause as to the two remaining counts. Id. At some point, the prosecutor prepared and signed a second indictment that removed Count 1 of the original indictment. ECF 10, 188-1. At the return of the indictment, the government presented both the first and second indictments to the magistrate judge. ECF 10. The first indictment indicated that the grand jury failed to find probable cause as to any count. ECF 3, 10. The second indictment indicated that the grand jury found probable cause as to two counts. ECF 1, 10. Both indictments were fully executed by the grand jury foreperson and the prosecutor. ECF 1, 3, 10. Presented with two facially inconsistent indictments, the magistrate judge questioned the grand jury foreperson and the prosecutor to unwind this procedural knot. Id. The magistrate judge then accepted the return of the second signed indictment. Id. The second indictment was a new indictment and therefore the undersigned concluded after reviewing the grand jury transcript that the prosecutor would have presented the indictment to the grand jury for consideration before it was returned in open court. It now appears that may not have happened.​

Short form: Defendant Comey does not appear to have been properly indicted. And His Honor walks through this:

The short time span between the moment the prosecutor learned that the grand jury rejected one count in the original indictment and the time the prosecutor appeared in court to return the second indictment could not have been sufficient to draft the second indictment, sign the second indictment, present it to the grand jury, provide legal instructions to the grand jury, and give them an opportunity to deliberate and render a decision on the new indictment. If the prosecutor is mistaken about the time she received notification of the grand jury's vote on the original indictment, and this procedure did take place, then the transcript and audio recording provided to the Court are incomplete. If this procedure did not take place, then the Court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury. Either way, this unusual series of events, still not fully explained by the prosecutor's declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment.​

That phrase, again, "presumption of regularity". It's one thing if Judge Faruqui (U.S. v. Stewart cited Judge Friedman (FEA v. U.S.)↗, but its presence in Judge Fitzpatrick's memorandum opinion for U.S. v. Comey should resound. Judge Fitzpatrick comes pretty much as close as a judge will without accusing Halligan so directly of lying, and so also with faking an indictment. Such discussions should never take place. His Honor goes on to disdain "the government's claim that this is, at worst, a conventional Fourth Amendment violation and an excusable slippage of privileged communications", describing DoJ's argument as "unpersuasive, particularly considering the central role this information played in the government's grand jury presentation", before recounting the Court's "supervisory authority" to "safeguard the integrity of the grand jury process", including the "supervisory power 'to dismiss an indictment because of misconduct before the grand jury". Compared to the burden to "show actual prejudice" to "establish that the violation substantially influenced the grand jury's decision to indict. or that there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations":

Here, the procedural and substantive irregularities that occurred before the grand jury, and the manner in which evidence presented to the grand jury was collected and used, may rise to the level of government misconduct resulting in prejudice to Mr. Comey.​

The downward spiral continues. The Court listed eleven findings largely wrecking the indictment and asserting reasonable basis to doubt and challenge the prosecution in particular ways. The tenth point asserts reasonable basis for defense to challenge grand jury proceedings as "infected with constitutional error", and what comes next is devastating:

Eleventh, the grand jury transcript and recording likely do not reflect the full proceedings because, although it is clear that a second indictment was prepared and presented to the grand jury (ECF 3), the transcript and audio recording of the proceedings do not reflect any further communications after the grand jury began deliberating on the first indictment.​

The overall effect is that "the institutional concerns for grand jury secrecy are greatly outweighed by Mr. Comey's right to Due Process."

Therefore, in this case, "the Court has before it a rare example of a criminal defendant who can actually make a 'particularized and factually based' showing that grounds exist to support the proposition that irregularities may have occurred in the grand jury proceedings and may justify the dismissal of one or more counts of the indictment."

Accordingly, the defense request for all grand jury materials is granted.​

No judge should ever need to write that memorandum.
____________________

Notes:

Fitzpatrick, William E. "Memorandum Opinion". United States of America v. James B. Comey, Jr. U.S. District Court for the Eastern District of Virginia Alexandria District. 17 November 2025. storage.CourtListener.com. 17 November 2025. https://storage.courtlistener.com/recap/gov.uscourts.vaed.582135/gov.uscourts.vaed.582135.191.0.pdf

 

[Sarkus]

A question does spring to mind:
Is this sort of incompetence / unethical behaviour fairly normal for the DoJ over the years, or is there an undeniable peak in such matters this term (and maybe during Trump's last term)? I mean, is it just that we're getting to hear more about them - i.e. it's that the media coverage is better - or is the frequency genuinely higher? I suspect the latter, but then I've only really started following the US situation since the start of its demise.

 

[Tiassa]

Update: An Actual Layer Said ....
in re U.S. v. Comey

Scary Lawyerguy↱ is an attorney and longtime legal commentator, i.e., far more an expert than I could ever be. And, no, he's not wrong—

Hard to explain to non-lawyers how badly the government has to fuck up an investigation and grand jury proceeding to have a magistrate judge issue an opinion with ELEVEN findings of potential prejudice up to and including multiple violations of a defendant's constitutional rights​

—I still can't wrap my head around the scale of it, because I can't comprehend the psychopathology. It's one thing if this isn't supposed to happen because U.S. Attorneys are supposed to be better than that, but inasmuch as Lindsey Halligan is an insurance lawyer with zero prosecutorial experience who absolutely should not be presenting this sort of case to a grand jury, we can only wonder at what she was thinking, going forward as she did.

https://twitter.com/x/status/1990549098160963650

 

[TheVat]

Bimbocracy.

 

[Tiassa]

Is this sort of incompetence / unethical behaviour fairly normal for the DoJ over the years, or is there an undeniable peak in such matters this term (and maybe during Trump's last term)?

The short form is that cops are cops are cops. ACAB is not a useful statement in this sort of consideration.

The direct answer is that this sort of incompetence and unethical behavior is not normal for the Department of Justice.

The subtle contrast, here, is not a matter of corruption or no, but how much corruption.

Law enforcers have certain major protections in the U.S. Three we might consider are presumption of regularity, presumption of good faith, and qualified immunity.

Regularity simply presumes that if government lawyers bring an action, it is regular, i.e., not corrupt or exceptionally deviant. This is part of what is now at stake less than a year into Trump's second presidency.

Good faith is what it sounds like. The best way to explain it is that a U.S. Attorney from my area once explained that she really, really wanted to charge the cop in a shooting, but did not expect she could overcome the presumption of good faith. The circumstances of that particular shooting were such that federal law enforcers presumed a local cop perjured in good faith. You'll occasionally see me push a five-word statement, He lied in good faith. That's the meaning, but no government lawyer will ever come right out and say it. Local prosecutors expressed not only that they would not charge the cop, but that they saw no reason to file any charges for lying about a bad shoot.

Qualified immunity covers the rest, and it is what it sounds like, immunity for acts otherwise considered illegal. Trying to outline the whole of QI is a law school endeavor at best. While we can easily imagine good-faith circumstances in which qualified immunity makes sense, i.e., we're not jailing a cop for a procedural error in the heat of a difficult arrest, or a post hoc assessment that less force would have been better, we're down to covering cops by asking inquest panels to decide whether the police thought they were in danger. (Hint: The answer is always yes; police work is inherently dangerous.)

And if I say you can probably imagine how everything goes downhill from there, it is, at least, a long tumble into the abyss.¹ As to local and state police, sure, ACAB is a reasonable shorthand for everything we skip over, here.

Federal law enforcers, though, are an entirely different question. Their corruption, as such, is in the politics of law enforcement itself. The FBI reviews its own shootings, for instance, and as you might guess, it turns out they're all good.

If, before, we would have held feds in higher esteem, the Trump presidencies test the Bad Seed Thesis. And, yes, there are reasons the good cops are overdue. First, it takes a while when trying to do the right thing the right way; also, there can be a lot of internal resistance and disruption. But we are also finding out there really aren't that many good seeds.

Consider all the tough talk from law enforcers during Obama's term; they weren't going to enforce this law, weren't going to do that other thing, because somebody has to stand up for law and order and the Constitution. And then think of the insurrectionist Oath Keepers; they're law enforcers and former military who pledged sedition as resistance to Barack Obama. Nobody who paid attention to their white supremacism was surprised that when the Oath Keepers finally openly rebelled against the Republic, they were backing the white supremacist attempt to thwart an election.

†​

It's hard to explain just how clownish this has all gotten. There's a line in a rap, "We be the squad Farad taught to rule, take a thought to the top, now I drop the jewels". The name Farad is a particular pronunciation of the name Fard, and perhaps that might seem obscure to you; and if I told you who he was, the line might even start to feel silly. But you should see Fard's FBI file; they were terrified of the man.

But why were they terrified of him? Near as I can tell, he was a popular black man who said things white law enforcers didn't understand, therefore it could only be scary.

Here's a hook: The manner in which the FBI and other law enforcers reacted to the rise of charismatic black men is part of the reason Fard has such influence, today. Perhaps more readily identified: Americans have an experience known as Nation of Islam; it is an important black American cultural institution that pretty much everyone else finds annoying. And there is a splinter faction, and that's where the rap comes from. It is impossible to speculate what NoI might have been without the constant espionage, harassment, and disruption from law enforcement. But there is something else: While it is probably impossible to describe the cultural hole that would exist without the honorable men and women of the FBI doing their honorable work to disrupt and suppress black communities, it would be a huge, recognizable gap, appropriated and so deeply folded into our American culture, now, and it only came about because the law enforcers were just that afraid of black people.

†​

And maybe that reads like melodrama or even malice, but the history is what it is; and think of that description as my word selection for a long-known history, the most recognizable of which is probably COINTELPRO. So, here's the thing: In a discussion of contiguity and legitimacy↗, I asserted an important historical consideration: Say what we will of the bureaucratic ossification of everything wrong with American government during my lifetime, but at least they could explain it contiguously.

Toward your question, that's the difference.

Trump joke: Along the way, Trump once blasted the radical left deep-staters at the Department of Justice, such that a former U.S. Attorney and cable news pundit commented that even her contacts still inside DoJ were confused by that one, since the Department has always been conservative. I don't know how many people heard her say that, but it's not something we regularly discuss so frankly.

Contiguity, however, has its limits. American conservatives are at their wits' ends; they've inflicted all they can within the confines of the nation and heritage and record we have built, so it's time for a new story. Legitimacy is too burdensome for their need; they will seek by might to redefine what is right, and thus establish a new legitimacy.

Halligan, for instance, is the lone U.S. Attorney signing one of her controversial indictments; she had to import attorneys from other states for another. There is a reason for this; even when ACAB, many of these bastards still have a certain integrity, having spent their whole careers pretending to fight against this kind of corruption. It's not explicitly that they are the good cops; they're at a boundary, and to step over that line forfeits the legitimacy of their entire careers. And that's not my boundary of legitimacy, but theirs. They spent their whole careers pretending to be better than that; some of them actually believe it. It's kind of like honor among thieves; not that they wouldn't bruise a Negro under their heel, but after pretending for decades that wasn't what they were doing, many just won't going to throw away that exorbitant legitimacy for the sake of an obvious pogrom. One obvious result is that the attorneys willing to argue such bad faith are not among our best and brightest.

The behavior is that much more awful than usual; the incompetence is extraordinary, rarefied by circumstantial necessity. This is what they're doing, this is what it takes.

No matter how much I might criticize law enforcement in this country, even I expect better, more respectful assessment than what these clowns have brought to bear. A lot of this is beyond "no law enforcer", to the point of "no proper attorney". These brutes are a special kind of stupid.
____________________

Notes:

¹ I lost a post, yesterday, to my own user error, but a point that sticks in my mind even before I try to rewrite it is that the legal cites in a court order about arrest power (U.S. v. New York) felt really weird because there was a forty-some year gap along the way, as if from about 1970 until 2017, all of this was settled and understood before the law was tested anew.​

Spoiler

 

[Tiassa]

Motion to Dismiss
in re U.S. v. Comey

Lisa Rubin↱ summarizes Comey's motion to dismiss:

Comey moves to dismiss on grounds of multiple alleged instances of grand jury misconduct, stating that because the two-count indictment was never presented to the full grand jury, there was no actual indictment within the five-year statute of limitations for the two charged crimes.​

Note the two parts, there: The two-count indictment was never presented to the grand jury, therefore there is no indictment. Also, because of passing time, the statute of limitations is effective, and no indictment was filed within that period.

In other words, if granted, it's over.

The motion itself↱, submitted by attorney Jessica Carmichael, is twenty-nine pages of straightforward legal submission. It's possible to look at the Tables and think it's a bit much for twenty-nine pages, but James Comey was one of the most powerful law enforcers in the country; he knows how to write a brief, and so does his attorney.

The argument is straightforward and overwhelming, but hinges entirely, on how the Court views the "operative indictment".

Comey argues, first, that the case should be dismissed for lack of valid indictment. Second, Comey asserts "dismissal is independently warranted because of the government's misconduct before the grand jury." To wit, "Even if the grand jury was in fact presented with the operative indictment, that would only raise a host of additional problems for the government―not the least of which is the apparent absence of any recording of that presentment."

One interesting detail: In recounting how things went along the way to this motion, Carmichael observes, "Within three days, Ms. Halligan rushed into the grand jury―without the participation of any other prosecutor in the U.S. Attorney's Office―to seek an indictment of Mr. Comey.⁶" That footnote is, well, right. "In fact," the note observes, "Mr. Comey's counsel requested a meeting with the U.S. Attorney's office before the indictment was obtained and offered to toll the statute of limitations to allow for that meeting." What this means is that Comey, knowing they were up against the statute of limitations, offered to toll the statute; he offered to stall the clock. To the one, it might seem unusual, but, to the other, neither was Comey ever given the standard offer, near the end of grand jury proceedings, to come in and testify. Indeed, "A prosecutor in the Office told Mr. Comey's counsel that the Office had been directed not to engage with defense counsel." And then Carmichael cites a Politico article about Donald Trump's social media instruction that DoJ should prosecute rivals.

And in consideration of what should not be, there is a question of magnitude; that is, there is a lot going on, and among the memoranda and orders judges should never have to write, it's true, that note six on page twenty-two of Comey's motion to dismiss is a paragraph that no lawyer should ever have occasion or opportunity to write.

I will also say this: Jessica Carmichael, a member of the national criminal defense bar, is backed by no less than four pro hac vice. They're all former DoJ hands, and like James Comey, each and every one of them outclasses Halligan's borrowed AUSAs by orders of magnitude. Diaz and Lemons are terrified; Halligan doesn't know any better.
____________________

Notes:

Carmichael, Jessica N. "James B. Comey, Jr's Motion to Dismiss Indictment Based on Fifth Amendment, Rule 6, and Grand Jury Violations". U.S. v. Comey. U.S. District Court for the Eastern District of Virginia Alexandria Division. 21 November 2025. storage.CourtListener.com. 21 November 2025. https://storage.courtlistener.com/recap/gov.uscourts.vaed.582136/gov.uscourts.vaed.582136.211.0.pdf

https://twitter.com/x/status/1991989009094983704