Justice and the Rule of Law [Trump Two Remix]

Oh, No. No. No, No, No, No, NoNoNoNoNoNoNoNoNo!
in re U.S. v. Comey


Roger Parloff↱ will confuse us, today, by describing reality:

FWIW, a court reporter's account, submitted *by the govt* on 11/19 in the Comey case--before it switched positions on 11/20—shows that the full grand jury could not possibly have approved the operational 2-count indictment.
The jury was "released" when deliberations ended.​

Something unimaginable has already happened: Seeking an appearance of a true clean bill, U.S. Attorney Lindsey Halligan submitted a second indictment against James Comey, because the first included a refusal of one count alongside two counts indicted.

In a motion to dismiss, Comey attorneys describe an "operative indictment". If nobody uses the word "superseding", it's because the first indictment was never submitted on its own. Rather, Halligan attached to the submitted indictment a memo describing the first.

From that point forward, the Court has been trying to figure out what actually happened. Judge Nachmanoff wondered, in the moment, about time stamps and whether the second indictment had ever been submitted to the grand jury. If Halligan's maneuver was virtually unimaginable in itself, the subsequent back and forth saw the judge require Halligan to answer her questions in a manner considered highly unusual, because things had gone so poorly along the way. Her answers only made things worse; she acknowledged that she had not shown the second indictment to the full grand jury.

A DoJ spokesman publicly contradicted Halligan, which seemed strange enough; the Department, hoping to keep the Comey prosecution afloat, tried to throw Halligan under their own bus. Stranger things arose with the dawn as, the next day, Assistant U.S. Attorneys Diaz and Lemons, imported from another jurisdiction because no regular EDVA prosecutor would sign on, put it in writing, and contradicted Halligan in a Notice Correcting the Record. Despite the U.S. Attorney's words to the judge, the government's position is that she did, in fact, present the second indictment to the full grand jury.

Halligan's borrowed AUSAs tried wordplay nigh unto an internet argument in order to argue the second indictment was properly presented; it may be they're trying to save both case and face.

For instance, Parloff's note.

Thus: Monday last, one of the easier things for anyone to do was seek the court reporter's notes on what took place. The court reporter returned a memo before lunch. That memorandum is extraordinary:

With the high profile nature of these cases, we went back through the audio and transcript for the J.C. case again and can confirm that no audio was missed and no testimony left out. There was one instance where the prosecutor had technical issues with ELMO and some of the jurors assisted and [redacted] came in to assist as well. That is detailed out in the transcript. When the prosecutor was finished presenting her case, she and the court reporter left the room, as is standard procedure, to let the jury deliberate. It was about 2 hours of deliberations. Both the Court reporter and the CSO remained in the Grand Jury area (outside the jury room but in the secure area where the breakroom and restrooms are) during the deliberation period. When the deliberations were finished and the jurors were released, the court reporter went back into the jury room, transferred the audio files and annotations to the envelope and brought the envelope to our offices. The length of the audio files match to the timestamps in the annotations and nothing was missed or otherwise left out of the transcript.

([redacted], qtd. in Parloff)​

This telling supports Halligan's unfortunate telling. And it's one thing if the court reporter contradicts a spokesman at DoJ, but this is a government exhibit, submitted by the Department of Justice. On the day of Halligan's acknowledgment that she did not present the second indictment. That is to say, Wednesday last, the government submitted evidence supporting the government's explanation that the government did not properly present the second indictment.

On Thursday, AUSAs Diaz and Lemons argued otherwise, declaring, "The complete record eliminates any doubt."

Now, ask yourself what should be a straightforward question: Are the U.S. Attorney and court reporter lying? And then: Why would the U.S. Attorney lie in order to harm herself?

It would be disastrous enough if this merely boiled down to a question of whether the U.S. Attorney or the jury foreperson are confused, because the U.S. Attorney should never be so confused.

But Judge Nachmanoff's suspicion is confirmed by both the court reporter's memo and the words of the U.S. Attorney herself.

And that was known before Diaz and Lemons' Notice of Correction↱.

It's a wasteland. Total devastation. This can't be happening, except it is.

The course for all this remains largely unknown, but the one seemingly obvious thing is that the process at hand will not snare Comey. Untangling what happened, and understanding what consequences government attorneys might face, will be a dazzlingly painful exercise in impossible excuses.
____________________

Notes:

Halligan, Lindsey, Gabriel J. Diaz and Tyler Lemons. "Government's Notice Correcting the Record". U.S. v. Comey. U.S. District Court for the Eastern District of Virginia Alexandria Division. 20 November 2025. DocumentCloud.org. 23 November 2025. https://www.documentcloud.org/documents/26289102-comeyflg112025/

https://twitter.com/x/status/1992636169096675793
 
Dismissed
in re U.S. v. Comey

Judge Cameron McGowan Currie has dismissed the charges against James B. Comey, Jr., on the grounds that U.S. Attorney Lindsey Halligan is not properly appointed under law, and thus cannot bring this indictment. This dismissal is issued without prejudice, meaning the charges can be filed anew if the government can achieve the proper procedure.

The twenty-nine page order↱ is straightforward and the simplest analysis is a contrast from Judge Currie's discussion of 28 U.S.C. § 546:

According to the Government, this case is "simple." … In its view, the "one and only" limitation on the Attorney General's authority to appoint interim U.S. Attorneys under section 546 is subsection (b), which bars the Attorney General from appointing anyone whom the Senate has refused to confirm … Nothing in the text," it continues, "explicitly or implicitly" precludes the Attorney General from making multiple interim appointments during a vacancy … Thus, it concludes, because "the Senate has not refused advice and consent to Ms. Halligan," the Attorney General "lawfully appointed [her] as interim U.S. Attorney" on September 22.

Mr. Comey counters that section 546 "limits the total tenure of the Attorney General's interim appointments to 120 days" and therefore "precludes an additional appointment by the Attorney General after the expiration of that 120-day period." … Accordingly, he argues, Ms. Halligan's appointment was unlawful because the district court possessed the "exclusive authority to appoint an interim U.S. Attorney" once Mr. Siebert's appointment by the Attorney General expired on May 21 … Mr. Comey has the better reading of the statute.​

What makes this part of the discussion (pp. 10-17) seem extraordinary is the continuing discussion, which includes Her Honor's citation of The Chicago Manual of Style along the way to explaining how the word "if" works (11), right before explaining how the word "an" works according to Garner's Usage, and then turning to Merriam-Webster's Collegiate Dictionary so that they might take a moment to understand the word "until" (12).

"This reading is reinforced by the negative-implication canon," Currie continues, citing Scalia and Garner, Reading Law.

That's how well DoJ's argument went over; Judge Currie just gave U.S. Attorneys a grammar lesson. Because, "Adopting the Government's contrary reading would render subsection (d) "insignificant", leaving it to "lie dormant in all but the most unlikely situations."

Moreover, "The Government's interpretation also conflicts with section 546's statutory history" (13), and then Judge Currie goes on to cite Scalia and Garner, again, in order to explain to U.S. Attorneys what the term "statutory history" means. A footnote on page 13 explains:

Three days after Congress enacted the 1986 law, an Office of Legal Counsel ("OLC") memorandum authored by then-Deputy Assistant Attorney General Samuel Alito concluded the statute does not allow "the Attorney General [to] make another appointment pursuant to [subsection (a)] after the expiration of the 120-day period."​

In other words, the law has never meant what Halligan and her borrowed Assistant U.S. Attorneys pretend. Per Alito: "The statutory plan discloses a Congressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court rather than the Attorney General". The footnote continues onto the next page (14), explaining, "Though not binding, OLC's "contemporaneous" interpretation of section 546 further supports Mr. Comey's position.

There is an historical complication, that in 2006, the Republican Congress changed the the rule for President Bush, and in 2007, a Democratic Congress rescinded the change. Judge Currie observes, caselaw: "When Congress amends legislation, courts must presume it intends [the change] to have real and substantial effect." And, "if the Government's reading were correct, the 2007 Act would have virtually no effect."

And then there is a tricky part, because, "Undeterred, the Government insists that "in reenacting the pre-2006 text, Congress presumptively ratified the Executive's longstanding use of successive 120-day appointments under [the 1986-2006] version of the statute." And perhaps there is a question of whether anyone ever objected to or tested a prior deviation, but, as Judge Currie observes, "a handful of successive 1220-day appointments across the Clinton and Bush administrations hardly establishes a 'longstanding' Executive practice." The caselaw citation considers a 200-year practice in re foreign relations; Judge Currie explains, "This is especially true when considering the Attorney General had no authority to appoint interim U.S. Attorneys at all before 1986.

That is to say, "'for those who find it relevant, the legislative history confirms' Congress sought to eliminate the Executive Branch's ability to circumvent the Senate's advice-and-consent role through repeat or indefinite interim appointments.

"In sum," Judge Currie writes, "the text, structure, and history of section 546 point to one conclusion". "Consequently, I conclude that the Attorney General's attempt to install Ms. Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid and that Ms. Halligan has been unlawfully serving in that role".

And let's note, that's just 28 U.S.C. § 546.

Starting on page 18, Judge Currie considers the Appointments Clause, U.S. Constitution, Art. II.2.2, empowering executive appointments.

The short form (18):

Resisting this conclusion, the Government briefly asserts that "not every action 'in excess of … statutory authority is ipso facto in violation of the Constitution'" … That is true but beside the point. "An officer cannot lawfully exercise the statutory power of her office at all" unless she has been properly appointed under Article II … And here Ms. Halligan has not been appointed (1) by the President with the advice and consent of the Senate or (2) through a process Congress has authorized "by statute" … So an Appointments Clause violation has occurred. The next question is what to do about that violation.​

The explanation of dismissal follows (19-27), and a particular paragraph does stand out (25):

As a final fallback position, the Government argues that even if Mr. Comey's indictment is flawed, dismissal is inappropriate because the Attorney General has since ratified Ms. Halligan's actions before the grand jury and her signature on the indictment … Even assuming the agency-law doctrine of ratification can be used to cure a defective indictment (the Government cites no authority holding as much), the Attorney General's attempt at ratification here fails.​

(Hint: "For ratification to be effective, 'the principal must have [had] the authority to authorize the action both when the action [was] initial performed by the agent, and when the act [was] affirmed (and thereby ratified) by the principal.' The Attorney General lacked that authority at both points here.")

Additionally, the judge explains her reasons for dismissal without prejudice (27-28), and concludes (28-29) with six points ordered and ajudged. The basic difference here is that the United States government must first attend the appropriate steps to achieve the indictment before it can be considered for other reasons.

Judge Currie's role in this case is separate from that of Judge Nachmanoff's, and would appear to end the litigation phase of Halligan's hot mess of an indictment. Currie's consideration was Halligan's appointment; Nachmanoff's is the indictment itself. While this would appear to put an end to the indictment, it is unclear what Judge Nachmanoff intends to do about the extraordinary questions of conduct apparent in the procedure of the indictment, nor the subsequent conduct of the government's attorneys.

This outcome also has implications for the case against Letitia James; we'll see how that goes.
____________________

Notes:

McGowan Currie, Cameron. "Opinion and Order Granting Motion to Dismiss Indictment (ECF No. 60)". U.S. v. Comey. U.S. District Court for the Eastern District of Virginia Alexandria Division. 24 October 2025. storage.CourtListener.com. 24 November 2025. https://storage.courtlistener.com/r...d.582136/gov.uscourts.vaed.582136.213.0_1.pdf
 
End of the Rope (b/w, Hold the Line)

It's a good headline from Liz Dye↱, "Habba booted by Senate and judges who did their damn jobs".

On Monday, Alina Habba finally tapped out.

In a screed posted to X, she took swipes at both Congress and the judiciary. Habba, who had never prosecuted a case in her life when she was named interim US attorney for the District of New Jersey and who told far-right shitposter Jack Posobiec that part of her job was to "turn New Jersey red," flounced off with a lecture about "politics infecting our justice system."

Attorney General Pam Bondi was similarly intemperate, posting that she was "saddened to accept Alina's resignation" and excoriating "politicized judges."

Whether you can take the New Jersey out of the girl is open to debate.

But Habba hasn't been the US attorney for New Jersey since July. A trial judge and the Third Circuit both ruled that her appointment lapsed in the summer and she's been LARPing ineffectually ever since.

Angry tweets cannot hide that this is absolutely a surrender by the Justice Department. Trump tried to bully the Senate and the judiciary into accepting unconfirmable hacks as US attorneys, and he failed.​

Habba went on to complain about the blue slip system, a Senate tradition more often discussed about judiciary appointments, but also part of certain DoJ appointments:

Habba was never going to get support from Democratic Sens. Cory Booker and Andy Kim, and so her nomination as US attorney for the District of New Jersey was effectively DOA. (This is perhaps why she could barely be bothered to fill out the vetting paperwork.)

This is highly inconvenient for a Republican president hell bent on using the Justice Department to prosecute his political enemies, since those enemies tend to live in blue states like New York, Virginia, Maryland, New Jersey, and California, all of which have two Democratic senators. And so Trump demanded over the summer that Grassley ditch the longstanding rule.​

This is one of those occasions when, sure, maybe you'll find me sneering at the blue slip, but this particular call to end the custom arises in response to a circumstance when the upper chamber tradition is actually doing something it is supposed to do.

Given the things Senate Republicans have been willing to do in the time since Obama was elected, the idea that they wouldn't simply jump the blue slip and confirm Habba in one of their batch votes really should stand out.

Congress has certainly been supine when it comes to Trump's theft of their power over the budget, tariffs, and trade agreements. But when it comes to its own rules, like blue slips and the filibuster, the Senate has been uncharacteristically noncompliant.​

The way Grassley put it, the noms without blue slips did not have enough votes to win confirmation. Dye explains, "And so Pam Bondi had to get creative", and goes on to explain a "three-hat dance" intended "to allow Trump's preferred candidates to continue supervising US attorneys offices without Senate confirmation".

The complication is that at some point, the courts, "who have been even less amenable to Trump's bullying than Congress", have a say. In late July, the courts told Habba no. Attorney General Bondi complained on behalf of President Trump's powers under Article II of the Constitution, but it's never really so simple as the Trump administration pretends:

The judges in New Jersey had zero obligation to bless Trump's preferred candidate, but for a while, Trump, Bondi, and Habba tried to brazen it out. Habba held herself out as the acting US attorney, huffily accusing anyone who questioned her legitimacy of siding with criminals.

That became more difficult in August when a judge ruled that Habba's lawful appointment had expired in July and Bondi couldn't rely on the FVRA and special counsel statute to evade Senate confirmation. And it became simply untenable when the Third Circuit upheld that ruling on December 1.​

During Habba's struggle "the law got a lot more developed," Dye tells us, "when judges in Nevada, California, and Virginia agreed ruled that Bondi's 'three hat' dance was no substitute for Senate confirmation".

The judges did their jobs, interpreting the disputed statutes and creating a body of common law and precedent. In plain English, the chaos that followed Habba's disqualification won't happen any more because every court to look at the issue agreed that prosecutions signed off on by line attorneys are kosher, even when the US attorney claiming to supervise them is not. And because there are now so many rulings blocking these illegal appointments, the DOJ can no longer argue that the law is unsettled. Bondi simply got outflanked by the judges.

(boldface accent added)​

DoJ, however, continues to push their case for other disqualified U.S. Attorneys; Lindsey Halligan signing documents as a U.S. Attorney for the Eastern District of Virginia, which she is not. "It's unsatisfying," Judge Nachmanoff suggested, "to hear something that appears to be in direct contravention of Judge Currie's order".

The DOJ has floated various trial balloons justifying Halligan's continued tenure. In one, Judge Cameron Currie's disqualification order was only binding in the Comey and James cases. In another, the judge didn't actually order Halligan to vacate the building, and so it doesn't really count. These theories are frankly bizarre, which is why the government didn't make them in court.

Instead, the Justice Department's X account posted a statement on behalf of Bondi and Blanche accusing judges in EDVA of "engaging in an unconscionable campaign of bias and hostility against US Attorney Lindsey Halligan and her line AUSAs."​

This week, Judge Brinkema asked why Halligan continued to sign as a U.S. Attorney, and suggested she should resign: "That's the proper position, in my view."

After nearly a quarter of Trump's second term, as such, we are reminded "Not allowing him to ONE WEIRD TRICK his way around the Constitution proves that the legislative and judicial branches can stop some of the administration's excesses if they decide to hold firm."
____________________

Notes:

Dye, Liz. "Habba booted by Senate and judges who did their damn jobs". Public Notice. 10 December 2025. PublicNotice.co. 10 December 2025. https://www.publicnotice.co/p/alina-habba-resigns
 
#WhatTheyVotedFor | #HowItsGoing​

gotm-09-julycosplay.png

Something goes here about the idea that, if this is what it takes, then maybe you're doing it wrong. Chris Geidner↱, about three weeks ago.

One part of the Trump administration's multi-pronged attack on transgender people has repeatedly hit a roadblock this fall, as at least four federal judges have blocked portions of or the entirety of the Justice Department's invasive subpoenas served in June on 20 providers of gender-affirming medical care for trans minors.

The most recent of those rulings came on November 21 in a challenge brought by Children's Hospital of Philadelphia.

And while the subpoenas and three public rulings have received news coverage in recent months, a significant aspect of multiple rulings has gone unreported until now: Two federal judges have directly questioned the actions of the Justice Department's lawyers involved in the cases.

In issuing his November 21 ruling, U.S. District Judge Mark Kearney "expressed concern with the veracity" of a declaration submitted by the Justice Department in seeking to justify the subpoena of the Philadelphia hospital and noted that the Justice Department's lawyers "recognize false statements may be subject to a perjury investigation."

Last month, meanwhile, U.S. District Judge Jamal Whitehead stated that the Justice Department's effort to submit a different declaration in a challenge before him represented either "a fundamental misunderstanding" or "deliberate misuse” of the court's procedures.

The extremely rare comments from multiple federal judges are both signs of the growing frustration from the bench about the unprofessionalism of the Justice Department in the second Trump administration under the leadership of Attorney General Pam Bondi and more evidence of the overly aggressive — and ultimately illegal — way the administration is attacking transgender people.​

More recently, Geidner also noted↱ the partial release of a quash out of Seattle, earlier this year: "Seattle Children's Hospital successfully fought this summer to get the Justice Department's invasive trans care subpoena quashed. The Seattle court partially unsealed the case this week."

The subpoenas in question

… seek extensive, detailed, invasive information about the providers of gender-affirming medical care for trans minors, including their employees, communications, and patients. The Justice Department has explicitly linked the subpoenas to President Donald Trump's January 20 executive order defining "sex” as binary and biological sex assigned at birth, his follow-up January 28 executive order targeting gender-affirming medical care for trans minors, as well as Bondi's April 22 memo purporting to implement those orders.​

And Judge Kearney, who used the "p" word, also ordered DoJ to submit information about other such subpoenas; Geidner notes, "we now know that challenges have been raised to at least six of them". Along the way, court rulings became public in three of the cases; Judge Kearney, "in a footnote, also provided information about a third subpoena quashed", and observed, "Our colleague also quashed the subpoena in its entirety for similar statutory authority reasons"; Geidner has updated his November post to note, "the third quashed subpoena referenced in Kearney's opinion had been directed at Seattle Children's Hospital".

But here's the weird, nearly tricky part: While Judge Kearney observed the subpoenaed records are among "the highest end of the intimate and personal spectrum", Geidner explains the judge "only discussed the privacy interests as a secondary reason to strike the requests. Primarily, he ruled, DOJ was painting outside the law." Compared to statutory authority, "Kearney characterized it as 'a uniquely misplaced view of its ability to expand the limits Congress imposed' on DOJ":

"Congress never authorized a roving mandate to regulate and alter state-licensed medical care,” he continued, "The Department of Justice's subpoena power extends only to information relevant to a Section 331 offense relating to a health benefit program, not to generalized policy objections about medical treatment decisions."​

One of the common themes to observe is that behavior we're seeing from government attorneys of the second Trump presidency describes a particularly pointed disregard for the institutional legitimacy of the rule of law.

This is an American ouroboros, a self-consuming cycle that plays out over and over again. American rightist grievance politics arise in no small part because conservatives have repeatedly made promises they simply cannot, under the Constitution, and their disappointed voters dutifully blame everybody else.

And this is a point people need to understand: These judges aren't shutting down the discussion, but, rather, containing it to its rules, preserving its contiguity and thus legitimacy¹. But that legitimacy does not get Republicans what they want, so they throw it away. There are, historically speaking, reasons for this, but it's a subtle, i.e., complicated, discussion easily sidetracked by simplistic disbelief and unanchored moral relativism.

There is history, here, and what might not be evident from half a world away, or even across our neighboring border², is the degree to which tradition, as such, must abandon itself in order to preserve itself. This is the sort of behavior conservatives used to accuse in their projections of liberal danger. Political labels aside, certain ideas have become what they warned against. Or, perhaps those ideas were never sincere; that's the more parsimonious historical explanation.

But, yeah, if you're so right that you have to change the rules and make it up as you go in order to be right, then maybe you're doing it wrong. And if you never intended to do it right, as such, no, it's not cancel culture if others doubt your fundamental credibility.
____________________

Notes:

¹ cf., "American Pogrom" #14↗, 16↗: "Contiguity has always been fundamental to the legitimacy of American governance"; "In this case, narrative contiguity. Historical contiguity."

² After all, Americans aren't exactly of sound understanding, on this count, either.​

Geidner, Chris. "BREAKING: Seattle Children's Hospital successfully fought this summer to get the Justice Department's invasive trans care subpoena quashed. The Seattle court partially unsealed the case this week. This was the fourth, previously sealed case mentioned in the recent Law Dork report on DOJ's effort and the challenges to it.". Substack. 12 December 2025. Substack.com. 13 December 2025. https://substack.com/@chrisgeidner/note/c-187276688

—————. "Multiple judges call out DOJ's methods of defending its invasive trans care subpoenas". Law Dork. 23 November 2025. LawDork.com. 13 December 2026. https://www.lawdork.com/p/judges-doj-actions-trans-care-subpoenas
 
in re NTEU v. Vought

There is a certain degree to which topline American jurisprudence has taken on the sound of an internet argument. And it's a familiar manner of disputation, in which one side just says whatever it thinks will get it through the moment and everyone else, i.e., other litigants as well as the Court, must hew to more respectable standards.¹

Judge Amy Berman Jackson, U.S. District Court for D.C., National Treasury Employees Union v. Vought↱:

The injunction was designed to ensure that the CFPB would continue to exist as Congress mandated and perform its statutorily required duties while the merits of plaintiffs' claims were litigated. Defendants appealed the Order […] and they filed a motion for a stay pending appeal […] which the Court granted in part but largely denied […] ("The Order is hardly as onerous or unsupported as defendants would have this Court and the Court of Appeals believe. . . . The Court would be open to further discussion about how it could or should be tailored, but it will not lift the order before those questions are resolved. That is because . . . staying the action would substantially injure the plaintiffs. The defendants would be free to move swiftly to take the steps that would eliminate the agency in thirty days, which the Court has already found they are poised to do, and that would cause plaintiffs irreparable harm.").

The defendants sought similar relief in the Court of Appeals at the same time, and on April 11, 2025, that Court stayed the Order in part […] Shortly thereafter, though, as events unfolded, the Court of Appeals modified and partially rescinded its stay, restoring some of the terms of the original Order […]

On August 15, 2025, a panel of the D.C. Circuit issued a ruling vacating the preliminary injunction […] Plaintiffs sought rehearing en banc, and on December 17, 2025, the D.C. Circuit granted the motion and vacated the panel decision, noting that the partial stay pending appeal entered on April 11, 2025, as later modified on April 28, 2025, remains in effect […]​

It's a lot shorter with the cites omitted, but, still, this is pretty straightforward, except for one thing. That first sentence begins the third paragraph of the Memorandum & Order: "The injunction was designed to ensure that the CFPB would continue to exist as Congress mandated and perform its statutorily required duties while the merits of plaintiffs' claims were litigated." To be clear, if this case has to do with "decisions made and actions taken by the defendants to carry out President Trump's vow to have the CFPB 'totally eliminated'", then the question is about whether an executive can so easily and willfully override Congress; as this authority is not among the President's enumerated powers, and the making of the laws is the business of Congress, and the President is obliged to preserve, protect and defend the Constitution, and thus constitutional order, no, it is not apparent that the executive can override Congress. Thus, the March injunction, but the point, here is one of those sentences that a Court generally shouldn't need to write, "to ensure that the CFPB would continue to exist as Congress mandated and perform its statutorily required duties" against unfounded executive usurpation.

And maybe even in that context, it reads like a small thing. This is the Trump administration, though, so there is also this:

While the petition for rehearing en banc was pending in the Court of Appeals, the parties continued to bring matters to this Court's attention. On November 10, 2025, the defendants filed what they styled as a "Notice of Potential Lapse in Appropriations to Pay the Expenses of the Bureau" […] which transmitted a copy of a November 7 Memorandum issued by the U.S. Department of Justice, Office of Legal Counsel at defendant Vought's request. The Notice acknowledged "that this Court's injunction, which restricts the agency's conduct regarding employment, contracting, and facilities, among other things, remains in effect." […] However, it stated that "under the Office of Legal Counsel's opinion," the Federal Reserve "currently lacks combined earnings from which the CFPB can draw," and therefore, it was submitting the Notice "to inform the Court and the parties that the Consumer Finance Protection Bureau . . . anticipates exhausting its currently available funds in early 2026." […] Defendants added that "the Bureau does not know whether and to the extent to which Congress will appropriate funding to pay the expenses of the Bureau." […]

The OLC Memo that underlies defendants' Notice constitutes a sharp departure from the Bureau's longstanding interpretation of its statutory funding procedure. It takes the position that the CFPB's funding mechanism under 12 U.S.C. § 5947(a)(1), which establishes quarterly transfers from the "combined earnings of the Federal Reserve System," is unavailable when the Federal Reserve operates at a loss. […] Over the last few years, the Federal Reserve has raised interest rates to combat inflation, so while it has continued to earn billions of dollars, its interest expenses have exceeded its earnings since 2022. Notwithstanding the fact that the Federal Reserve has been consistently funding the CFPB throughout that period, the OLC opined that the Federal Reserve has no "earnings" at all and cannot fund the CFPB, and the CFPB Director has "no statutory obligation" to request funds from the Fed when it is not profitable.

Based on this reasoning, defendant Vought, the Acting Director of the CFPB, informed President Trump and Congress on November 20, 2025:

「I have determined that sums available to the Bureau under [the Dodd-Frank Act] will not be sufficient to carry out the authorities of the Bureau under Federal consumer financial law for Fiscal Year 2026. I make this determination based on the conclusion of the Office of Legal Counsel (OLC) within the Department of Justice that there are no funds legally available for the Bureau to request from the Federal Reserve System.」​

[…] And based on the same reasoning, Vought and the CFPB simply announced to the Court and the plaintiffs that the Bureau's funding is about to "lapse." […] What was left unsaid was that claiming that funds are unavailable is tantamount to closing what is left of the Bureau, bringing any performance of statutory functions and any remaining ongoing compliance with the terms of the preliminary injunction to a halt, even though the case has not yet been resolved on the merits.​

Observe that the Court points out a "sharp departure" from "longstanding interpretation", with the effect of "bringing any performance of statutory functions and any remaining ongoing compliance with the terms of the preliminary injunction to a halt, even though the case has not yet been resolved on the merits". That is, the Court functionally accused government attorneys of making it up in order to evade the injunction.

Even more, along the way the Court acknowledges an amicus brief from former Federal Reserve officials that "OLC's analysis of the Fed's profitability is flawed because the Fed never truly operates at a loss". That is to say, in this, too, Trump administration officials are just making it up as they go.

And that aspect of the Trump administration should stand out more directly: They literally cannot make their argument without make-believe.

This is not new; it even precedes Trump. Back before alternative facts, there were sincerely held beliefs, and, gosh, we wouldn't want to suppress political views or silence political voices just because they're make-believe. It would be just wrong to shut down the discussion by expecting people to be honest or, at least, able to support their arguments.

Such excuse and extraordinary protection are necessary in order to pretend such legitimacy. And these Things That Ought Not Be, they, too, are essential elements of the pretense.

But, hey, at least they're sticking it to black people and Hispanics and Muslims and transgender. And women. And Hindu. And, yeah, the Indian Americans that come with it.

It's like that whole bit with those people who complain about being expected to feel ashamed for being white, or being male. This is what happens when you put people who think that way in charge of anything.
____________________

Notes:

¹ It is not unlike Sartre's↗ remarks on the bigotry of anti-Semites: "They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors." And if, "They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert," the pretense to intimidate and disconcert is a Thing That Ought Not Be; these are government lawyers, and are actually formally expected to be and connduct themselves better than that.​

Berman Jackson, Amy. "Memorandum & Opinion". National Treasury Employees Union v. Vought. United States District Court for the District of Columbia. 30 December 2025. storage.CourtListener.com. 31 December 2025. https://storage.courtlistener.com/recap/gov.uscourts.dcd.277287/gov.uscourts.dcd.277287.167.0_1.pdf

Sartre, Jean-Paul. Anti-Semite and Jew. 1944. New York: Schocken Books, 1995.
 
What It Takes (#WhatTheyVotedFor)

Former U.S. Attorney Barbara McQuade↱:

There is a reason that prosecutors require predication before an investigation can begin.

Predication, defined as a credible factual allegation of either criminal activity or a threat to national security, is required by both the Justice Department's attorney general guidelines and the FBI's domestic investigations operations guide.

And yet, at least one grand jury has reportedly been empaneled to investigate former government officials based only on vague allegations of "lawfare," a concept not addressed in any federal statute. According to public reporting, Miami U.S. Attorney Jason Reding Quiñones is currently leading a wide-ranging "grand conspiracy" investigation. Among the recipients of a reported two dozen grand jury subpoenas are former Director of National Intelligence James Clapper and ex-CIA Director John Brennan, as well as Peter Strzok and Lisa Page, former employees of the FBI. All of these former officials, not surprisingly, have been publicly singled out by a president who seems to be trying to turn his second term, in part, into a revenge tour.

Predication exists to prevent abuses of power, including by the prosecutors who initiate criminal investigations. Checks exist along the way before a defendant can be convicted of a crime — grand jury review, due process, trial by jury, and appellate review all offer protection to a defendant. But undergoing a criminal investigation, even when it does not result in criminal charges, can be a brutal experience. Targets of investigation must expend financial resources defending themselves. They and their families endure the stress of coping with the possibility of a future in prison. And if an investigation becomes public, contrary to DOJ policy and grand jury secrecy rules, the target may also suffer shame and humiliation. For these reasons, sound policies and ethics rules prohibit prosecutors from investigating cases without a good-faith factual basis.

Quiñones, the U.S. attorney appointed by President Donald Trump to the southern district of Florida, seems to be ignoring those important requirements. Rather than simply following facts and law to bring offenders to justice, this ongoing effort appears to be targeting members of the Obama administration who initiated the investigation into connections between Russia and Trump's 2016 presidential campaign. Just as alarming, it fits the pattern we saw with the charges brought against James Comey and Letitia James.​

Short form: "Predication" is the standard that guards against fishing expeditions. That is, investigators don't get to issue random subpoenas in hope of discovering a crime.

Mention of the Letitia James case is particularly relevant in another way. Conservatives, in recent years, have been wrecking old institutional presumptions in recent years, and while this can often sound like a good thing there remains a question of what, really, they are trying to sacrifice at the altar of their desperation,

If conservatives sacrificed something about nepotism in order to chase Hunter Biden, most wouldn't have noticed. But they tried sacrificing E&O in order to get Letitia James. It's a little more complicated to explain the rules of evidence and the James Comey case, but, yes, after all those years of complaining against the prospect of tyranny, Republicans are ready to sacrifice E&O, the rules of evidence, the Fourth Amendment, the Fifth Amendment, and even the presumption of regularity.

The Trump administration's refusal of the rule of law in general is its own thing, but when you look into its components, you'll find a contradictory mess of conservatives bringing the things they used to warn against even while they sought their chance to bring such things to bear. But, sure, this is the kind of think people made excuses for the whole time. You know, like, you can't call it [___] just because you disagree with it, and, hey, maybe there was something more to it than mere disagreement.¹

And in this moment we might consider predication, the idea that the government needs an actual real reason to put you under grand jury scrutiny. The idea that they voted against predication isn't surprising; the manner in which "no, they didn't" is simply that they never explicitly considered that implication according to that word.

And when you add in the prospect of vindictive prosecution, in all the time conservatives pretended to oppose grand jury fishing expeditions in pursuit of vindictive prosecution, what they really meant is any prosecution they don't like, compared to vindictive prosecution of those who dare to disagree with them. It wasn't exactly subtle, and then there was Trump, and now you just can't miss it.

But it's not just that Trump empowered these voices to come forward; they, too, empowered him. Yesterday's excuses are today's consequences.

(And, yes, watch who repents, and who doubles down; and pay close attention to what they repent or wager on.)
____________________

Notes:

¹ But that's the thing, isn't it: From each according to his ability. Maybe there's a reason they can't see beyond the mere fact of disagreement.​

McQuade, Barbara. "Why this Florida 'grand conspiracy' investigation is ringing legal alarm bells". MS NOW. 31 December 2025. MS.NOW. 31 December 2025. https://www.ms.now/opinion/florida-grand-conspiracy-investigation-trump
 
At Least He Likes Beer

20180927-brettkavanaugh-detail-bw.png

Lithwick and Stern↱ on "Kavanaugh Stops":

Justice Brett Kavanaugh does not seem happy that his name has become synonymous with racist immigration enforcement. In September, the justice wrote that Hispanic residents' "apparent ethnicity" could be a "relevant factor" in federal agents' decision to stop them and demand proof of citizenship. Immigration and Customs Enforcement and Customs and Border Protection promptly seized upon his opinion as a license to stop any Hispanic person on the basis of race—often with excessive, even sadistic force—and detain them until they proved their lawful presence. Law professor Anil Kalhan termed these encounters "Kavanaugh stops," and the name swiftly caught on as evidence mounted that they had become standard practice across the country. Lawyers also provided courts with evidence that Kavanaugh had sanitized the reality of this practice to the point of fiction. The justice claimed that these were "brief investigative stops" and that any lawful resident would be "promptly" released. In truth, federal agents brutalized, kidnapped, and tormented people—including many U.S. citizens—simply because of their ethnicity, even after they asserted legal status.

Now it appears that Kavanaugh has some regrets. Last Tuesday, the justice backtracked from his previous position without quite acknowledging the retreat. He did so in a concurrence to the Supreme Court's decision to block President Donald Trump's deployment of the National Guard—a case that does not even directly concern "Kavanaugh stops." In a footnote, he declared that race and ethnicity could not be "considerations" when officers make "immigration stops or arrests." That directly conflicts with his earlier assertion that officers can use race and ethnicity as a "factor" when deciding whom to detain. The two positions cannot be reconciled. Yet Kavanaugh did not admit that he had changed his position; he simply pretended that the law in this area was "clear," when he himself muddied it just months earlier.​

That's the introduction to a podcast discussion for Slate, called Amicus: Lithwick observes "the icing on top of the Christmas cake that Brett Kavanaugh, in an unrelated discussion, gave himself the gift of forgiveness for his notorious 'Kavanaugh stops' opinion"; Stern responds, "I think he is begging us to please cease and desist calling them 'Kavanaugh stops'," observing, "This footnote is buried in the opinion and doesn't really have anything to do with it." And there is an obvious inquiry: "I wonder what has changed since September."

Well, I think he is trying to rid "Kavanaugh stops" from the discourse, which is never going to happen. And maybe he's trying to send a message to the Trump administration to cool it down. Because now we have CBP Chief Greg Bovino declaring that agents can engage in racial profiling. Bovino has even said that every single person in this country has to walk around with proof of citizenship or else face arrest on suspicion of being undocumented. Kavanaugh is probably a little unnerved that all these violent, racist arrests and abductions are taking his name. He doesn't want to be remembered by history as this great villain who greenlit the worst wave of violent racial profiling by the federal government in ages. But this footnote changes nothing. He cannot walk back what he has unleashed.​

And one of the important points, here, is how strange it is for Justice Kavanaugh to do it this way: "If the justices are going to go ahead and reverse precedent about immigration stops," Lithwick explains, "and then their decision gets operationalized by the Trump administration, they can't say: Oh, sorry, we didn't mean that." Furthermore, "They certainly can't do it in a case that does not directly relate back to 'Kavanaugh stops'."

Mark Joseph Stern, for his part, recalls unnamed "commentators" who "praise Kavanaugh for sort of responding to criticism here", and, sure, we can probably imagine a few conservative hosts and pundits trying.

I do not think he gets any points. He did what he did in Vasquez Perdomo; he should have foreseen the consequences. Every intelligent observer understood what was going to happen when his opinion dropped in September. Now he seems to regret it—though he still hasn't apologized directly or acknowledged that he was wrong, and is pretending that what he said earlier is consonant with what he's saying now.​

The phrase, "shadow docket", comes up along the way, and questions of contiguity↑ are in play: The Kavanaugh stops are a reversal of precedent undertaken for uncertain reasons; inasmuch as "every intelligent observer understood what was going to happen", it seems less likely that Justice Kavanaugh is so dull as to have missed the implication, and rather more that he intended the effect but does not wish the notoriety.
____________________

Notes:

Lithwick, Dahlia and Mark Joseph Stern. "Brett Kavanaugh Is Trying to Walk Back 'Kavanaugh Stops.' Too Late." Slate. 30 December 2025. Slate.com. 31 December 2025. https://slate.com/news-and-politics...h-stops-immigration-racial-profiling-ice.html
 
in re U.S. v. Jefferson
cf. U.S. v. Comey

Well, then:

This matter comes before the Court on its own initiative. The Court has reviewed the Indictment in this matter, which was returned by the grand jury on December 2, 2025, and observes that Ms. Halligan identified herself therein as the United States Attorney for this District […] Ms. Halligan did so despite a binding Court Order entered by Senior United States District Judge Cameron McGowan Currie on November 24, 2025, in which Judge Currie found that the "appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointment Clause of the U.S. Constitution." […] While the United States of America (the "Government") has appealed Judge Currie's Opinion and Order, no stay has been issued in conjunction with that appeal. […] Consequently, it remains the bindign precedent in this district and is not subject to being ignored.

For these reasons, the Court hereby DIRECTS Ms. Halligan to file, within seven (7) days of the issuance of this Order, a pleading explaining the basis for Ms. Halligan's identification of herself as the United States Attorney, notwithstanding Judge Currie's contrary ruling. She shall also set forth the reasons why this Court should not strike Ms. Halligan's identification of herself as Unitd States Attorney from the indictment in this matter. Ms. Halligan shall further explain why her identification does not constitute a false or misleading statement. See Va. R. of Prof. Conduct 3.3(a) (2025) ("A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal."); 7.1 ("A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."); 8.4 ("It is professional misconduct for a lawyer to … (c) engage in conduct involving dishonesty … or misrepresentation which reflects adver5sely on the lawyer's fitness to practice law."); 3.4 ("A lawyer shall not … knowingly disobey … a standing rule or a ruling of a tribunal made in the course of a proceeding"; see also E.D. Va. Loc. Crim. R.83.1(M) ("All counsel admitted to practice before this Court pursuant to subsections (C), (D) [governing federal government attorneys "appearing pursuant to the authority of the United States Attorney's Office for the Eastern District of Virginia" and who do not otherwise require "admission to practice in this Court"], (E), or (F) shall be subject to the rules, conditions and provisions set forth in full as Appendix B to these Local Rules."); Fed. R. of Disciplinary Enforcement ("FRDE") IV(B) [set forth in Appendix B] ("Acts or omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which might violate the Virginia Rules of Professional Conduct adopted by this Court shall constitute misconduct and shall be grounds for discipline"); Memorandum Opinion, In Re: Joseph D. Morrisey, Esq., Case No. 3:97ms16 (E.D. Va. Dec. 28, 1999), aff'd 305 F.3d 211 (4th Cir. 2002) ("Federal courts have the inherent power to control the admission of attorneys to their bars and to discipline attorneys who appear before them." […] The Government's pleading shall be signed by Ms. Halligan.

([some cites omitted])​

Judge Novak is not amused.

Lindsey Halligan would seem to be on her way to the find-out phase. This really isn't normal.
____________________

Notes:

Novak, David J. "Order (Directing Government Filing)". United States of America v. Davante Aandrell Jefferson. U.S. District Court for the Eastern District of Virginia. 6 January 2026. storage.CourtListener.com. 7 January 2026. https://storage.courtlistener.com/recap/gov.uscourts.vaed.586310/gov.uscourts.vaed.586310.16.0.pdf
 
It Happened Again

From the Northern District of New York:

On August 5, 2025, a federal prosecutor, on behalf of the United States (the “Federal Government”), requested that grand jury subpoenas be issued to a state prosecutor -- the office of New York's Attorney General, Letitia James (the “State Government”). The subpoenas signaled an ongoing federal criminal investigation into two civil cases brought by the State of New York against President Donald J. Trump and the National Rifle Association (“NRA”). John A. Sarcone III, the recently installed Acting U.S. Attorney for the Northern District of New York (“NDNY”) personally directed the issuance of both subpoenas; his is the only name on the subpoenas and the documents sought are returnable to him personally.

The State Government moves to quash the subpoenas. It argues, among other things, that the subpoenas intrude on New York's sovereignty and that they were issued in retaliation for the State's civil cases against President Trump and his political allies. The U.S. Attorney's Office for the NDNY opposes the motion on behalf of the Federal Government. The State Government's federalism and retaliation arguments need not be addressed at this stage. The subpoenas are unenforceable due to a threshold defect: Mr. Sarcone was not lawfully serving as Acting U.S. Attorney when the subpoenas were issued.​

And Judge Schofeld↱ is clear on this point:

The U.S. Attorney General initially appointed Mr. Sarcone as Interim U.S. Attorney for 120 days. When that term expired, this District's judges declined to use their statutory authority to extend his tenure. Federal law then required the use of other statutory procedures to fill the position. The Department of Justice did not follow those procedures. Instead, on the same day that the judges declined to extend Mr. Sarcone's appointment, the Department took coordinated steps -- through personnel moves and shifting titles -- to install Mr. Sarcone as Acting U.S. Attorney. Federal law does not permit such a workaround.​

Moreover, "a growing body of persuasive authority reinforces this conclusion". Judge Schofeld points to New Jersey, Nevada, and California, where courts held that "similarly installed Acting U.S. Attorneys lacked lawful authority"; indeed, the Third Circuit affirmed the New Jersey outcome; the "slightly different procedural posture" in the Eastern District of Virginia¹.

One particular point worth reminding: This isn't the DoJ pursuit of Letitia James that has already seen a U.S. Attorney disqualified, but a dispute pertaining to her role as Attorney General in two cases:

For the foregoing reasons, the State Government's motion is GRANTED.

Mr. Sarcone is disqualified from any further involvement in prosecuting or supervising any investigation pertaining to New York v. Trump, Index No. 452564/2022 (Sup. Ct. N.Y. Cnty.), and New York v. National Rifle Association, Index No. 451625/2020 (Sup. Ct. N.Y. Cnty.).​

The difference being that on this occasion, James answers as the State of New York.

And that's the thing about justice and the rule of law compared to the Trump administration. It's one of those "just imagine" things; compared to conservative whining about Janet Reno, just imagine if Clinton had improperly-appointed U.S. Attorneys pursuing cases against his political enemies to the point that they were challenging the States themselves. Compared to Chief Justice Roberts whining at Solicitor General Kagan about the frightening government overreach of knowing who is participating in an election², just imagine if Obama sent U.S. Attorneys, even properly appointed, after bigots in public office.

(Note for internationals: What might be hard to perceive from a distance is that absent actual behavior to complain about, conservatives have been whining about government overreach the whole time. This reminds two points: First, sure, while it's so widespread that it can be hard to see, this could actually be an example of "byss" ["because you say so"]; the flipside, of course, is the years of conservatives pretending to oppose the kind of behavior we see in Trump's DoJ.)​
____________________

Notes:

¹ See #28↑ above for the latest EDVA procedural posture in re Lindsey Halligan's illegal appointment.

² To the other, there's a whole bunch we might say about the Chief Justice Roberts of once upon a time compared to the Chief Justice Roberts of the present.​

Schofeld, Lorna G. "Opinion & Order". In Re Grand Jury Subpoenas to the Office of the New York State Attorney General. United States District Court Northern District of New York. 8 January 2026. storage.CourtListener.com. 8 January 2026. https://storage.courtlistener.com/recap/gov.uscourts.nynd.149556/gov.uscourts.nynd.149556.50.0.pdf
 
What It Comes To
in re United States of America No. 26-1135

Chief Judge Schiltz↱ of U.S. District Court District of Minnesota, memorandum letter to Chief Judge Colloton of the Eighth Circuit, 23 January 2026:

Dear Chief Judge Colloton,

I apologize for addressing this letter to you, but, for reasons I will describe, I do not have any other option.

I am working from home today, as the program that my mentally disabled adult son attends each day is closed because of the extreme cold. At 11:34 am, I received an email regarding Case No. 26-1135, entitled "In re: United States of America." The order in its entirety read:

「The motion of the United Statse to seal is granted. The Chief Judge of the United States District Court for the District of Minnesota is invited to file a response, at his discretion, to the petition for writ of mandamus. Any response is due by 2:00 p.m. Friday, January 23.」​

This is the first that I have heard of any petition for a writ of mandamus. The United States did not have the courtesy to tell me that they would be filing such a petition, nor did the United States serve teh petition on me. I am unable to access any documents in Case No. 26-1135 because, at the request of the United States, the case is sealed―apparently even from me. So I have been given about two-and-one-half hours to respond to a mandamus petition that I have not read and cannot read.

Apparently I am supposed to guess what the petition is about and guess what the mandamus petition says and then respond. I will do so.​

Schiltz goes on to recount a sketch of suspects from a church protest, that Magistrate Judge Micko dismissed five arrest warrants among eight sought by the United States. "Minutes" later, "the U.S. Attorney notified me that his office wanted a district judge to review Judge Micko's decision, either by hearing an appeal of that decision or by considering the application de novo."

Judge Schiltz sent the case over to the Clerk's Office for random assignment, and the random draw came back to Judge Schiltz.

Now, this part is, well, important; His Honor continues:

It is important to emphasize that what the U.S. Attorney requested is unheard of in our district or, as best as I can tell, any other district in the Eighth Circuit. I have surveyed all of our judges―some of who have been judges in our District for over 40 years―and no one can remember the government asking a district judge to review a magistrate judge's denial of an arrest warrant. I have also surveyed the chief judges of all of the districts in the Eighth Circuit. I have heard back from almost all of them, and all of those responding have said that, to their knowledge, no district judge has ever reviewed the decision of a magistrate judge to deny an arrest warrant. The reason why this never happens is likely that, if the government does not like the magistrate judge's decision, it can either improve the affidavit and present it again to the same magistrate judge or it can present its case to a grand jury and seek an indictment.​

And we should be particular: This is not some random political rant from a judge. This is the narrative contiguity of the judiciary. In addition to the two likely reasons Schiltz listed, district judges don't want to make a mess of the magistrates because then the district judges have to sort out and clean up the mess, and the whole thing would end up making the magistrate judges redundant and unnecessary; at present, the judiciary seems to think magistrate judges exist for a reason.

To the other, the Court is not hasty:

On Wednesday, January 21, I informed the U.S. Attorney that because he was asking me to do something that was unprecedented, and because my colleagues had strong and differing views on how our district should respond to such a request, I would not decide whether to issue the five warrants sought by the government until I had a chance to discuss the issues with my colleagues at our bench meeting, which was scheduled for yesterday. I also invited the Department of Justice to submit a brief regarding the authority of a district judge to review a magistrate judge's decision not to issue an arrest warrant, which the Department did late yesterday.

Unfortunately, we had to postpone our bench meeting at the request of the United States Marshall because of security concerns created by the presence both of the Vice President of the United States and the Attorney General of the United States in Minneapolis yesterday and by the the initial appearances of two of the leaders of the invasion of the Cities Church (who had been arrested pursuant to the arrest warrants signed by Judge Micko) in St. Paul. We are scheduled to meet over lunch on Tuesday, January 27. I have informed the U.S. Attorney that I will make a decision about the warrant application immediately after that meeting.

This, however, was not satisfactory to the Department of Justice. It has claimed that there is a national security emergency. As the Department sees it, if I do not issue warrants for the five additional suspects, "copycats" will invade churches and synagogues this weekend and disrupt religious services. Apparently, the government believes that the arrests of the leaders of the Cities Church invasion―whose arrests have received widespread international attention―will not deter copycats, but arresting five additional suspects will. The government has also argued that I must accept this as true because they said it, and they are the government.

And that is where things stand ….​

Judge Schiltz goes on to assert, "There is absolutely no emergency", remind that the "government could have sought indictments from a grand jury" on at least three days since, "but chose not to do so" and, furthermore, "can still take its case to a grand jury any time it wishes". He continues, and concludes

Instead, the government is insisting that I do something that, as best as I can tell, no district judge in the history of the Eighth Circuit has done. I have told the government that I will discuss its request with my fellow judges on Tuesday and give it a decision Tuesday afternoon. If the mystery petition filed by the government seeks an order from the Eighth Circuit forcing me to decide today―instead of Tuesday―whether to issue arrest warrants for the five protestors, I respectfully suggest that the petition is frivolous.​

And this is what it comes to; the U.S. Department of Justice has become so irregular that judges are no longer certain how to handle the circumstance. For instance, for us not in the loop, there remains a question of who sent the email, and what court granted a motion to seal.

(And it's not so much that it will either come up, later, or not, but that certain possibilities should never actually have a place in the discussion. So, sure, I presume there is an actual, legitimate answer to who sent the email and who granted what motion that is not actually some criminal action looking like a phishing text message, but it's not yet clear what that legitimate answer is.)

(Really, think of how spectacular that would be. No, absolutely not. That's just not a stunt anyone at DoJ would pull. Ever.)​
____________________

Notes:

Schiltz, Patrick J. "Re: In Re: United States of America No. 26-1135". United States District Court District of Minnesota. 23 January 2026. storage.CourtListener.com. 24 January 2026. https://storage.courtlistener.com/r...669/gov.uscourts.ca8.113669.00805439054.0.pdf
 
Follow-Up
in re: United States of America No.26-1135

Law professor Derek T. Muller↱ noted an interesting wrinkle in the mystery of No. 26-1135:

ORDER/NOTICE TO ATTORNEY. The United States has withdrawn its request that Chief Judge Schiltz consider an application for five arrest warrants. As a result, Chief Judge Schiltz will take no action on that particular application. Ordered by Chief Judge Patrick J. Schiltz on 1/26/2026.​

Okay, that was just weird.

https://twitter.com/x/status/2015890475241136155
 
And Then …
in re Juan T.R. v. Noem et al.

The latest order from Judge Patrick J. Schiltz, U.S. District Court District of Minnesota is three seething pages both apparently separate from a mysterious episode described in a letter to the Eighth Circuit↑, and yet related for any number of issues and, ultimately, its expression of cumulative effect: "This Court's patience is at an end."

The first paragraph is extraordinary:

On January 14, 2026, the Court grant petitioner Juan T.R.'s habeas petition and ordered, among other things, that "respondents provide petitioner a bond hearing under 8 U.S.C. § 1226(a) within 7 days of the date of this Order" and "if respondents do not provide petitioner with a bond hearing under 8 U.S.C. § 1226(a) within 7 days of the date of this Order, petitioner must be immediately released from detention." ECF No. 4 at 4. On January 23, petitioner's counsel notified the Court that Juan has not received a bond hearing and remains detained.​

For those watching the daily grind, of course the Trump administration refuses to abide a court order, but the extraordinary thing, here, is the government's refusal of habeas corpus; we fought a war over this.

What comes next is not merely one side of a political disagreement, but an observation of fact,

This is one of dozens of court orders with which respondents have failed to comply in recent weeks. The practical consequence of respondents' failure to comply has almost always been significant hardship to aliens (many of whom have lawfully lived and worked in the United States for years and done absolutely nothing wrong): The detention of an alien is extended, or an alien who should remain in Minnesota is flown to Texas, or an alien who has been flown to Texas is released there and told to figure out a way to get home.

This Court has been extremely patient with respondents, even though respondents decided to send thousands of agents to Minnesota to detain aliens without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result. Respondents have continually assured the Court that they recognize their obligation to comply with Court orders, and that they have taken steps to ensure that those orders will be honored going forward. Unfortunately, though, the violations continue.​

And oh, the footnote: "The Court expresses its appreciation to attorney Ana Voss and her colleagues, who have struggled mightily to ensure that respondents comply with court orders despite the fact that respondents have failed to provide them with adequate resources." Here, the Court parses the difference between a U.S. Attorney and the Trump administration; DoJ is DoJ, while ICE is DHS. Unlike certain cases in Virginia and New York, DoJ hijinks are not merely for the sake of the Department of Justice; here, Judge Schiltz both grants DoJ certain leeway toward an attorney frustrated by their client, but that's probably all they will get.

Meanwhile, blithe equivocation is insufficient. Again, perhaps a paragraph recounting "dozens of court orders" would, coming from some commentator on the internet, read like just one side of an argument, but coming from a federal judge in an Order to Show Cause, it is something of a finding of fact. "Dozens of court orders with which [the government] has refused to comply in recent weeks", is not a mere opinion, but an observable, supportable fact. Pretending there is a bothsides or ritual about how Trump DoJ behavior is not appropriate. That is to say: Here we have a fact.

And toward that fact, the "Court has been extremely patient", even in the face of government provocation and escalation. Again, it is not mere politics leading to that footnote drawing a line between attorney (DoJ) and client (DHS/ICE). The statement that "respondents decided to send thousands of agents to Minnesota to detain aliens without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result" is a very important point of fact.¹

Despite the court orders, despite the good faith of AUSA Voss, "the violations continue". And, to be clear it's not just the Court's say-so that is violated, but the Constitution (I.9.2) itself.

And Judge Schiltz has had enough:

The Court's patience is at an end. Accordingly, the Court will order Todd Lyons, the Acting Director of ICE, to appear personally before the Court and show cause why he should not be held in contempt of Court. The Court acknowledges that ordering the head of a federal agency to personally appear is an extraordinary step, but the extent of ICE's violation of court orders is likewise extraordinary, and lesser measures have been tried and failed.​

Even still, because of prestige², Judge Schiltz offers the government an escape hatch: The Court will hold a hearing on 30 January, and Todd Lyons must appear in person to explain why he should not be held in contempt of court, but if the government releases the case petitioner from custody, His Honor will call it off.

The thing is, if the courts move too fast, they help the Trump administration wreck the ship of state. To the other, the honor of the judiciary—its very credibility—is at stake, so judges must proceed cautiously. The Court is not hasty, and thus only does so much at any particular time, even if His Honor can easily imagine what comes next.

The violations will continue.
____________________

Notes:

¹ see also "ICE agents murder bystanders in Minnesota" #79↗ (boldface accent added):

「Compared to the number of crimes committed by law enforcement … the easiest way to break the culpability chain will be to detach the law enforcer from the act .... As it is, Americans should be able to find out, right now, in the moment, who arrested that person for what. That's not happening in catch-and-release harassment, because a proper incident report for that behavior would describe a crime by law enforcement officers. Additionally, the "papers, please" demand leading to the immigration-related detention of American citizens is itself illegal; proper incident reports would describe crime by law enforcers."」​

² No other respondent would be allowed such an out with a question of dozens or even hundreds of violations in play. And while, procedurally, certain prestige makes sense, that allowance relies on the good faith of government agents; the footnote, for instance, is both a lifeline for Voss and a potential divider, as courts will, eventually move to hold attorneys accountable for client behavior if client behavior renders attorney statements false. AUSA Voss is, in her way, on notice, but His Honor believes in her credibility, and is as sympathetic to her conundrum as the law allows. Perhaps she is in good faith, but the government agencies she represents in this litigation have apparently achieved a threshold.​

Schiltz, Patrick J. "Order to Show Cause". Juan T.R. v. Noem et al. U.S. District Court District of Minnesota. 27 January 2026. storage.CourtListener.com. 27 January 2026. https://storage.courtlistener.com/recap/gov.uscourts.mnd.230171/gov.uscourts.mnd.230171.7.0.pdf
 
… And Then …
in re Juan T.R. v. Noem et al.

That was fast.

Right around the time I posted about↑ a three-page Order to Show Cause in Juan T.R. v. Noem, Roger Parloff↱ was posting our answer on social media:

The petitioner ("T.R." or Juan Tobay Robles) whose non-release prompted Chief Judge Schilitz to threaten ICE director Todd Lyons with contempt has now been RELEASED, according to what the civil chief of the US Atty's office has told his atty and his atty has relayed to me.​

And, of course, the socmed commentariat kicks in, thus: Yes, the hearing will be canceled; no, Lyons does not have to show up for the hearing; yeah, it's kind of a convenient way to dodge accountability, but only for the moment; maybe it's amazing how that works depending on which part we find amazing; yes, that moots the hearing, and here we go again.

We'll have to see what comes. But as noted, the Court is not hasty, so this is what was supposed to happen.

https://twitter.com/x/status/2016234933883461735
 
Such Things That Should Not Be

Judge Sykes↱, Central District of California, granted a Restraining Order in Inzuna v. Warden, and the six-page ruling, laden with case citations, smolders with impatience with the federal government's behavior:

This matter is yet another in a slew of habeas petitions following the Court's ruling in Bautista v. Santacruz that has unfortunately become routine in this Court. See Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3713987 (C.D. Cal. Dec. 18, 2025), judgment entered sub nom. Maldonado Bautista v. Noem, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025). But individuals filing these habeas petitions are not to blame; rather, the current volume of habeas petitions and temporary restraining orders being filed can be attributed to Respondents' deliberate choice to continue defying the final judgment entered in Bautista.​

Are you able to read around the cites, or did you miss what Her Honor said?

Sometimes it's helpful to pull the cites and just run the primary text, but in this case they make a certain point. The court has a slew of habeas petitions before it; this extraordinary circumstance is not the fault of the people filing those petitions, but the decisions of federal officials to defy law and court.

"The sequence of events follows this general pattern," Judge Sykes explains:

Individuals alleging membership in Bautista's Bond Eligible Class file a Writ of Habeas Corpus, seeking relief consistent with the Court's final judgment in that case. Given the nature of immigration detention and the statutory right to a bond hearing by class members, those individuals then file an ex parte Application for a Temporary Restraining Order seeking expedited relief. Respondents, well-aware of the directives in Bautista's final judgment, craft arguments in opposition. Because the issues presented in these matters are identical to those raised in Bautista, the Court then issues a Temporary Restraining Order requiring Respondents to provide these individuals with bond hearings.​

This basic description of process is then followed by a list of ten examples from the current pogrom, all from Central District of California. And the next paragraph is only three sentences, "When this pattern of filings began, Respondents' arguments were initially merits-based … This Court, assuming good faith on behalf of Respondents, initially considered each argument raised in opposition. However, each argument was found to be precluded by the law of the case doctrine, or determined meritless …", and includes five docket citations dating back to July.

Respondents then changed course. As of late, Respondents seek to identify procedural technicalities and deficiencies to oppose the relief sought. [See e.g., Dkt. No. 10 in Juan Rios Vega v. Kristi Noem et al., Case No. 5:26-cv-00058-SSS- BFM (C.D. Cal. Jan. 12, 2026)]. Despite the clarity of the Court's previous orders and legal doctrines that preclude Respondents from relitigating issues at the heart of these requests, Respondents continue to manufacture arguments for sake of opposition.​

And if it almost sounds like an internet argument, the Court would seem to be aware; it's a powerful sentence: "Respondents continue to manufacture arguments for sake of opposition." Those respondents are government personnel and attorneys. The next paragraph, two sentences backed with five citations, strikes at the heart of the matter:

At this point in time, the Court can no longer confer Respondents with the benefit of the doubt as to the intent of their filings. Despite the final judgment in Bautista, it appears that immigration judges continue to rely on legal interpretations that were expressly found unlawful.​

Again: "At this point in time, the Court can no longer confer Respondents with the benefit of the doubt as to the intent of their filings." These are government attorneys losing basic benefit of doubt, and their fellows in the DoJ immigration courts are relying on unlawful standards despite judiciary instruction to the other. Compared to the Court "assuming good faith", government attorneys in the Central District of California have endangered their presumption of regularity.

Judge Sykes thus defends the Court's ability to do its job:

The volume of filings has caused the Court to expend a considerable level of resources to ensure the just determination of each action and proceeding. To prevent further perpetuation of this pattern, the Court articulates below how and why Respondents are collaterally estopped from opposing the merits of the Bond Eligible Class members' habeas petitions.​

The short form is that "Collateral estoppel is a doctrine that promotes judicial economy and protects parties from the burden of successive litigation by barring relitigation of issues in certain circumstances."

The bottom line, after discussion of the nature and application of collateral estoppal, Judge Sykes concludes:

the Court finds Respondents have been precluded from relitigating the issue of whether Petitioner, as a member of the Bond Eligible Class in Bautista, is entitled to the relief requested in the TRO. As such, the TRO is GRANTED.​

The Order is in its way extraordinary; the government is enjoined from continuing to detain the Petitioner without a bond hearing within seven days; the government is enjoined against removing Petitioner from the judicial district without final order and resolution of litigation.

Moreover, the Order is effective for a little over two weeks to accommodate an Order to Show Cause why injunction should not be issued; the hearing is set for mid-February. Lastly, a footnote at the end of the civil minutes observes that the government asked for an additional three days because of a "backlog of cases at EOIR", the Executive Office for Immigration Review. "The Court declines to provide a 10-day window as this backlog is likely the result of Respondents' own conduct in refusing to comply with Bautista's final judgment."

In the long history of political hyperbole, one of the things that makes hyperbole hyperbolic is its falseness, often invested in distorting exaggeration, and in many instances further exaggerating outright make-believe. And the thing about the back and forth of bothsides is the asymmetry of it all. In history, the underlying asymmetry includes expectations of racism compared to indignant complaints that the expectation was unfair. This time later, the asymmetry describes s result that, it's true, it would have been very rude to presume about someone, but what it comes down to is that it's true, conservatives undertook a racist pogrom, and the part that would have been rude to presume was that individuals would behave in certain ways. But the lack of good faith noted in Central District California, and in the District of Minnesota↑, are precisely the sort of thing it was so awful to presume of people, and, frankly, hard to imagine.

This didn't just happen; career law enforcers serving in good faith didn't just up and make this mistake because a president wants something. It seems they were capable of this dishonesty the whole time, and simply waiting for their moment.

It's like when people say ACAB. Law enforcers aren't dead leaves to be pushed around by hot air; their principles don't change with each election. "Despite the clarity of the Court's previous orders" and the standing "legal doctrines that preclude … relitigating issues", law enforcers "continue to manufacture arguments for sake of opposition". That didn't just happen out of thin air; these law enforcers were always so capable of villainy. It's one thing if ACAB feels like hyperbole, but then law enforcers go and behave like this.

Because, if the law enforcers are waiting around for the Court to tell them what to do so they can labor to manufacture arguments for the sake of opposition, then no, they're not actually enforcing the law in good faith. How many cops will sit back as a crime takes place in front of them and say, "Well, the Court didn't tell me to take any particular action, so I'm just going to wait and see how this plays out", because the people are left to wonder where the so-called good cops are.
____________________

Notes:

Vazquez, Irene. "Civil Minutes — General: Order Granting Petitioner's Ex Parte Application for Temporary Restraining Order [DKT. No. 5]". United States District Court Central District of California. 27 January 2026. storage.CourtListener.com. 28 January 2026. https://storage.courtlistener.com/recap/gov.uscourts.cacd.1001948/gov.uscourts.cacd.1001948.9.0.pdf
 
… And Then …
in re Juan T.R. v. Noem et al.

The story so far: Judge Patrick Schiltz, Chief Judge of the U.S. District for Minnesota, having achieved the immediate and pressing result, is not yet finished. On Friday, His Honor sent a letter up the ladder↑, inquiring of and advising the Chief Judge of the Eighth Circuit about a mysterious matter that seemed to abate↑ shortly thereafter.

Having forestalled a Tuesday hearing on the matter did not mean Tuesday was without its tale; Judge Schiltz issued an Order to Show Cause↑ in another case, Juan T.R. v. Noem et al., and along the way declared, "The Court's patience is at an end." Frustrated at yet another among "dozens of court orders with which respondents have failed to comply", His Honor ordered the Acting Director of Immigration & Customs Enforcement, Todd Lyons, to appear personally in court. The escape hatch Schiltz offered was to release this given petitioner from custody. Government lawyers took the offered off-ramp↗; Juan T.R. is released from custody. Indeed, as noted, the Court is not hasty, so this is what was supposed to happen.

That the Court is not hasty does not mean the Court would simply give over. If His Honor can easily imagine what comes next, today he took the next step. Judge Schiltz handed down an order, today↱, recounting the process leading to the moment, canceling the scheduled hearing for Lyons.

And then:

That does not end the Court's concerns, however. Attached to this order is an appendix that identifies 96 court orders that ICE has violated in 74 cases. The extent of ICE's noncompliance is almost certainly substantially understated. This list is confined to orders issued since January 1, 2026, and the list was hurriedly compiled by extraordinarily busy judges. Undoubtedly, mistakes were made, and orders that should have appeared on this list were omitted.

This list should give pause to anyone—no matter his or her political beliefs—who cares about the rule of law. ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence. The Court warns ICE that future noncompliance with court orders may result in future show‐cause orders requiring the personal appearances of Lyons or other government officials. ICE is not a law unto itself. ICE has every right to challenge the orders of this Court, but, like any litigant, ICE must follow those orders unless and until they are overturned or vacated.​

The petitioner, furthermore, asked the Court to schedule a hearing to consider "evidence and argument concerning the hardships that he has suffered"; His Honor "will not schedule a hearing at this time", but only because the proper thing is to await the formal filing before doing so.

The main Order, itself, simply cancels Lyons' previously-ordered appearance; after three pages, the fourth is nothing more that Judge Schiltz's signature. Beyond that are four more pages enumerating "Habeas Cases with Order Non-Compliance". Ninety-six orders in seventy-four cases, and "almost certainly substantially understated".

There comes a point at which it's just not a whoopsie. The Court is not hasty, but signs coming out of Minnesota and California↑, at least, tell us the judges are moving slowly but steadily toward saying the thing.

At some point, these are crimes. The courts will give law enforcers every opportunity, and then some, to change course. Judges will only come right out and say the thing if government attorneys leave them no other choice.
____________________

Notes:

Schiltz, Patrick J. "Order". Juan T.R. v. Noem et al.. United States District Court District of Minnesota. 28 January 2026. s3.DocumentCloud.org. 28 January 2026. https://s3.documentcloud.org/documents/26513988/trorder012826.pdf
 
What Must Be Said
in re Larrazabal-Gonzalez v. Mason, et al.

Kyle Cheney↱ notes:

Judges around the country are eyeing what's happening in Minnesota. In a ruling freeing a detained immigrant here, Judge Goodwin of West Virginia said he couldn't ignore the crises in MN.​

And there are a couple things about Judge Goodwin's Memorandum Opinion and Order↱ in Larrazabal-Gonzalez v. Mason, et al., from the Southern District of West Virginia Charleston Division. His Honor opens:

This case does not arise in isolation.

The court is aware that similar seizures and detentions are occurring increasingly across the country. Individuals are stopped during ordinary civilian activity, taken into custody for civil immigration purposes, and confined in local jails without prompt hearings, without individualized findings, and often far from counsel, family, or community. That broader context matters, especially when assessing constitutional risk.​

The footnote that goes with that contains seven citations from Nebraska, Nevada, Idaho, Kentucky, Vermont, Virginia, and Michigan; we might consider Judge Sykes, in California, piling up citations↱ along the way in order to make the point.

Judge Goodwin continues:

Of course, this court does not supervise immigration enforcement. It does not adjudicate removability. It does not weigh policy choices committed to the political branches. This court does, however, maintain a narrow, unavoidable duty to ensure that custody itself is lawful.

It is not the vigilance of detainees or the speed of their lawyers that determines what is and what is not constitutional. Nor does the United States Constitution require habeas petitions to activate its protections. Liberty is not a prize for procedural persistence. It is the baseline.

That is why the court's duty to scrutinize custody is more acute than ever, as liberty is administratively restrained. Every day it happens—outside the criminal process, in facilities designed for punishment, and lacking the ordinary safeguards that must accompany arrest and prosecution.

And while judicial restraint is often the right answer in a system of checks and balances, it does not mean that courts should subscribe to judicial passivity. Instead, courts must draw and hold clear lines in every case. Here that line is a simple proposition: the government may not confine a person in a jail without promptly justifying that confinement before a neutral decisionmaker in a manner the person can meaningfully access.​

There is a certain point to be made about the footnotes, but it can also be a distraction. Note 3 complains that Government attorneys cannot seem to properly file notice, "It is not clear when that hearing was noticed or where that hearing is"; note 4 observes a lack of argument from state Respondent; note 5 considers the Government's alternative argument that if the court grants relief, it should only be to instruct the Government to abide the process and procedure it has already refused. His Honor was not convinced; "the Petition is GRANTED". And note 6, there, reminds that the court has jurisdiction, and provides four statutory and three caselaw citations to explain why. The fourth-wall note, here, is to remind the Court's line about the vigilance of detainees or the speed of their lawyers; Petitioner's lawyer did a good job.

But it is footnote seven that turns to Minnesota. The setup, from a section on Due Process:

At the hearing, the Government conceded that any person within the boundaries of the United States is entitled to due process under the Constitution. That concession is correct.

The Fifth Amendment of the Constitution promises freedom and protection to all persons. "No person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. This core principle of procedural due process is that detention triggers the right to a prompt hearing to test its legality. In short, it is unconstitutional for the Government to detain a person without explanation, without a hearing, without notice, or without any means of challenging that detention.

Here, that is exactly what the Government did. After federal officers arrested the Petitioner, he was held in a state jail. Nine days passed before Petitioner could obtain counsel and counsel could file his habeas petition.⁷ At the time of the Petition's filing, federal authorities had not scheduled a hearing for the Petitioner, nor had the Petitioner received notice of a hearing to determine whether removal proceedings would begin.

This sequence is indistinguishable in principle from holding a citizen on a criminal charge without arraignment or bail hearing. The Constitution does not tolerate such delay simply because the detained person is subject to immigration law. In fact, the Petitioner's immigration status does not burden the relevant constitutional protections.​

And if that's not a string of words that no judge should ever have to write, the footnote reminds explicitly:

Of course, the Petitioner does not have constitutional protections only when he files a habeas petition. That distinction—that constitutional rights do not only protect persons when a lawsuit has been filed—is an important one. It is because of the many lawsuits surrounding ICE actions (including arrest, detention, and other enforcement actions) that I cannot view this case outside of the national, political, and legal context. Across the country, federal immigration enforcement operations have sparked controversy and concerns about constitutional overreach. In Minneapolis, federal immigration and border agents have been involved in multiple fatal shootings of U.S. citizens. Those events have prompted widespread protest and calls for accountability.​

To be clear:

Despite what some may have been led to believe, immigrants illegally in this country enjoy protections guaranteed by the Fifth Amendment. "Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."​

The rest of that paragraph is three caselaw citations, from 1982, 1993, and 2001.

The Constitution does not tolerate what would be plainly unlawful in the criminal context simply because the detention is labeled civil. Nor does the Constitution withhold its protections when a person is an immigrant.​

And none of this is new to government lawyers. "Habeas corpus," Judge Goodwin reminds, "exists precisely for this moment."

Not only does the order require the Petitioner's release from detention, it also prohibits the government from re-arresting and detaining him without a significant change in circumstance. Oh, and His Honor denied certification of appealability.
____________________

Notes:

Goodwin, Joseph R. "Memorandum Opinion and Order". Larazzabal-Gonzalez v. Mason et al.. United States District Court for the Southern District of West Virginia Charleston Division. 28 January 2027. storage.CourtListener.com. 29 January 2026. https://storage.courtlistener.com/recap/gov.uscourts.wvsd.242900/gov.uscourts.wvsd.242900.23.0.pdf

https://twitter.com/x/status/2016869756238807295
 
TheVat said:
Bizarre. And me slightly disoriented at first, until I realized Veritasium was not moonlighting as a law professor.

en.wikipedia.org

Derek Muller - Wikipedia

en.wikipedia.org en.wikipedia.org

The legal system remains the last line of Czech hedgehogs against a system of MAGA hit squads with flimsy grounds for snatching people. Hope it holds.

en.wikipedia.org

Czech hedgehog - Wikipedia

en.wikipedia.org en.wikipedia.org
Click to expand...
The weakness here is the "flood the zone with shit" strategy of Prarject 2025. The court system is far too slow to keep up with the deluge of legally questionable or even blatantly illegal moves by this administration. There is also the intimidation factor: those bringing cases to court face the wrath of Trump on Truth Social, leading to pizza delveries to their families and so forth.

I note the Supreme Chicken is procrastinating over the judgement on the legality of tariffs. My feeling is this is such a centrepiece of Trump's strategy for cowing the international community that finding against him would knock out a fundamental pillar of his approach, open him to far more vociferous international condemnation and badly weaken him on the international stage. It would also cause domestic chaos, with demands for reimbursement from the US importers who have been forced to pay the tariffs up to now. I think the Chicken is procrastinating because they cannot find a way to say it is legal and they fear the consequences.
 
The Finger In the Dike
in re Arias and LCR v. Noem et al.

District Judge Fred Biery↱:

Before the Court is the petition of asylum seeker Adrian Conejo Arias and his five-year-old son for protection of the Great Writ of habeas corpus. They seek nothing more than some modicum of due1 process and the rule of law. The government has responded.

The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children. This Court and others regularly send undocumented people to prison and orders them deported but do so by proper legal procedures.

Apparent also is the government's ignorance of an American historical document called the Declaration of Independence. Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were:

1. "He has sent hither Swarms of Officers to harass our People."

2. "He has excited domestic Insurrection among us.”

3. "For quartering large Bodies of Armed Troops among us."

4. "He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures."​

"We the people" are hearing echoes of that history.

And then there is that pesky inconvenience called the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.

U.S. Const. Amend. IV​

Civics lesson to the government: Administrative warrants issued by the executive branch to itself do not pass probable cause muster. That is called the fox guarding the henhouse. The Constitution requires an independent judicial officer.

Accordingly, the Court finds that the Constitution of these United States trumps this administration's detention of petitioner Adrian Conejo Arias and his minor son, L.C.R. The Great Writ and release from detention are GRANTED pursuant to the attached Judgment.

Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.

Ultimately, Petitioners may, because of the arcane United States immigration system, return to their home country, involuntarily or by self-deportation. But that result should occur through a more orderly and humane policy than currently in place.

Philadelphia, September 17, 1787: "Well, Dr. Franklin, what do we have?" "A republic, if you can keep it."

With a judicial finger in the constitutional dike,

It is so ORDERED.​

His Honor signs off, and includes below his signature the photograph of Liam Conejo Ramos now famous around the world, a frightened boy in plaid jacket and blue cap, being searched by federal officers.

And below that, Judge Biery of the U.S. District Court for the Western District of Texas San Antonio Division reminds two Bible verses, Matthew 19:14 and, John 11:35.
____________________

Noets:

Biery, Fred. "Opinion and Order of the Court". Arias and LCR v. Noem et al.. United States District Court for the Western District of Texas San Antonio Division. 31 January 2026. storage.CourtListener.com. 31 January 2026. https://storage.courtlistener.com/r...72886492/gov.uscourts.txwd.1172886492.9.0.pdf
 
On Competence and Competency

Roger Parloff↱ explains:

Remember the ethics complaint @AGPamBondi very publicly filed against Judge Boasberg? It was based on an alleged nonpublic statement, which Bondi said was in Attachment A. But no attachment was attached. Reviewing judge asked for the attachment. DOJ produced none. Dismissed on that & many other grounds.​

What manner of clownery is this? The complaint was filed by DoJ Chief of Staff Chad Mizelle, a DeSantis Republican, conspiracy theorist, and spouse of a Trump-appointed federal judge. Was this utter failure by a DoJ Chief of Staff a matter of incompetence or noncompetency? Either are possible within such dimensions as alternative facts require.

https://twitter.com/x/status/2017751036245774591
 
You must log in or register to reply here.
Back
Top