Justice and the Rule of Law [Trump Two Remix]

[Tiassa]

Historical Footnote on Sloppiness

It's literally a footnote in Rodriguez v. Mason, a "Memorandum Opinion and Order"↱ from the Southern District of West Virginia Charleston Division; Judge Berger observes:

The Respondents did attach a document to their Response purporting to show minor convictions for marijuana possession in 2009. The Petitioner was four years old in 2009, and the Respondent indicated that the document was supplied by ICE and likely presumed to relate to the Petitioner because the individual in those records had the same name, despite the differences in birthdate, birthplace, parents' names, and immigration status. This sloppiness further validates the Court's concerns about the procedures utilized by the Respondents depriving people present in the United States of their liberty.​

Very consequential sloppiness, as it happens. To the one, sure, how convenient; to the other, sloppiness is about as kind a characterization as Her Honor might afford.

And the thing about that convenient sloppy whoopsie; the courts are increasingly weary, and some already wary, toward such sloppy intersections. The other footnotes are kind of extraordinary, in themselves: Note 1 concludes, "The Court concurs with the Petitioners that the language this Court has used in previous orders, barring detention absent a substantial change in circumstances, provides inadequate protection due to the Respondents’ lack of respect for the law." Note 2 just stacks on citations in order to make the caselaw question as clear as possible. Note 4 is an explanation why a voluntary departure form is "of little relevance to the legality of the Petitioner’s detention". Note 5 reminds, "the Court also finds that a bond hearing before an immigration judge would not comport
with due process", as well as the government's failure to even try to refute the point.

That last actually kind of stings, because it is important to remember: The reason it is not a crime to be an undocumented foreign national in the United States is that law enforcement would circumvent the stations of criminal justice; the "immigration judge" in Note 5 is not a member of the judiciary, but part of the executive branch under the Department of Justice. It takes too long to convict people of a crime in order to deport them for being undocumented foreign nationals, so the work-around was to make the whole thing an administrative procedure within the immigration system. It's one thing that the Court finds an IJ bond hearing insufficient, but consider that it even needed to. The whole point of having immigration judges is to avoid all that mess.

Once upon a time it was seen as some manner of discrediting tarnishment to even suggest such outcomes were possible, but here we are, and the conduct of the executive branch is such that the courts feel unable to afford law enforcement the sort of weak tea that would have done well enough in the past. Once again, a thing that should not be; inasmuch as the Republic depends on the good faith of its stewards, the moment we are witnessing is the sort of thing that should never happen.

Beyond the footnotes, Judge Berger concludes:

Having found that the Petitioner met his burden of establishing that his detention is unlawful, the Court has ordered his release. As in prior cases, and consistent with every other judge in this District, the Court finds that release is the appropriate remedy both because it is the traditional remedy in a successful habeas action for unlawful detention and because the evidence presented in this and other cases establishes that the Government would be unlikely to hold a timely bond hearing under procedures that comport with due process.​

____________________

Notes:

Berger, Irene C. "Memorandum Opinion and Order". Rodriguez v. Mason. United States District Court for the Southern District of West Virginia Charleston Division. 24 February 2026. storage.CourtListener.com. 25 February 2026. https://storage.courtlistener.com/recap/gov.uscourts.wvsd.243037/gov.uscourts.wvsd.243037.20.0.pdf

 

[Tiassa]

Unhappy Hour: Eagle Ed On the Rocks

The story so far, or thereabout:

Over the past year or so, far-right activist Ed Martin has served in a variety of capacities on Donald Trump's team, including a failed tenure as the director of the Justice Department's "Weaponization Working Group" and his ongoing work as the president's pardon attorney.

But to appreciate the Missouri Republican's contributions, one has to look no further than Martin's truly ridiculous work as interim U.S. attorney for Washington, D.C., which proved so controversial that GOP senators refused to confirm him to the post.

Over the course of roughly 16 weeks, Martin repeatedly proved his critics right, acting as a hyperpartisan prosecutor who appeared to abuse the powers of his office, including a weird fight exactly one year ago this week with the dean of Georgetown University's law school.

While federal prosecutors tend to focus resources on matters of law enforcement (since that is their job), Martin decided to launch a bizarre attack on academic freedom, targeting a private Catholic institution for unexplained reasons, telling the law school dean that Georgetown graduates would be locked out of potential jobs in the U.S. attorney's office if the university taught or used "diversity, equity and inclusion" — which went undefined in his letter.

One year later, MS NOW confirmed that Martin is facing an ethics investigation from the D.C. Bar over his wildly unnecessary campaign against Georgetown Law.

(Benen↱)​

Roger Parloff↱ explains that part of the charges involve Martin writing the judge ex parte¹, and "twice after being warned not to", apparently demanding the suspension of the D.C. Bar's counsel.

The complaint↱ itself is as straightforward as the story it describes is messy:

Count One asserts that, "Martin knew or should have known that, as a government official, his conduct violated the First and Fifth Amendments to the Constitution of the United States"; "His demand did not provide Georgetown Law fair notice of what is allegedly prohibited because he did not define 'DEI,' cited no authority for his demand"; "He failed to follow any procedure that would have given Georgetown Law an opportunity to defend itself before he imposed a penalty"; "Mr. Martin's conduct as set forth in Count I violated his oath of office as an attorney admitted to the Bar of the District of Columbia Court of Appeals, in which he swore to "support the Constitution of the United States of America," and therefore is grounds for discipline pursuant to Rule XI, § 2(b)".

What happened next is a little more complicated. Count 2 requires some explanation because it's a Thing That Should Not Be:

15. Instead of responding to Disciplinary Counsel's letter, on March 31, 2025, Mr. Martin sent, ex parte, a letter to the Chief Judge and the Senior Judges of the District of Columbia Court of Appeals. In that letter, he stated that he would not be responding to Disciplinary Counsel's inquiry, complained about Disciplinary Counsel's "uneven behavior," and requested a "face-to-face meeting with all of you to discuss this matter and find a way forward."

16. On April 8, 2025, the Chief Judge responded to Mr. Martin's March 31 letter. She informed him that the court could not permissively meet with him ex parte and that any concerns should be raised through the regular procedures established by the court to govern the disciplinary process.​

And it goes on: Since "Martin did not copy Disciplinary Counsel on this correspondence with the Chief Judge", the Disciplinary Counsel sent a follow-up letter: "Martin responded with an email that same day, in which he explained that he had communicated with the Chief Judge, but that he and she had not yet met". And he copied the Chief Judge, "even though she had told him in her April 8 letter that he should follow the regular procedures and that it would be inappropriate to meet with him ex parte". Meanwhile, "the Chief Judge responded to Mr. Martin's April 15 email, copying Disciplinary Counsel" and "repeated that neither she nor other members of the court could meet with him ex parte and that he should follow the written procedures, which 'do not include referral of correspondence from the Office of Disciplinary Counsel directly to a judge of the Court of Appeals.'" The Disciplinary Counsel asked Martin for a copy of the letter to the Chief Judge and Senior Judges. "Mr. Martin did not reply to the April 21 letter or to the second inquiry Disciplinary Counsel had sent him on April 15." The Bar filed a Motion to Compel before the Board on Professional Responsibility; Martin asked for time to secure counsel.

"On May 13, 2025, Mr. Martin sent another letter to the Chief Judge, copying Disciplinary Counsel, to complain about "the manner in which the April 15 follow-up inquiry had been served on him"; he asked the Court to "not only suspend Mr. Fox immediately to investigate his conduct, but also to dismiss the case against me because of his prejudicial conduct". The Chief Judge responded a day later, "reiterating her statements in her April 8 letter and April 15 email that Mr. Martin should raise any concerns by following the court's procedures". In June, Martin finally responded to the initial inquiry from the C.C. Bar Disciplinary Counsel. "Mr. Martin's conduct as set forth in Count II violated the following District of Columbia Rules of Professional Conduct: a. Rule 3.5(b), communicating ex parte with a judge during a proceeding unless authorized to do so by law or court order; and b. Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice."

As Parloff put it, "The DC Bar charges against Ed Martin are very Ed Martin-y."

†​

If this was an internet argument, perhaps it might work to send a PM to the Admin (chief judge) in hopes of getting what you want regardless of facts or rules. But the District of Columbia Court of Appeals is not an internet argument. The part where Martin "stated that he would not be responding to Disciplinary Counsel's inquiry, complained about Disciplinary Counsel's 'uneven behavior,' and requested a 'face-to-face meeting with all of you to discuss this matter and find a way forward'" really is extraordinary, and its presumptuousness exudes Martin's disdain for law and process. Consider that he wanted a face to face meeting with the judges to decide what to do about the D.C. Bar. In an internet discussion, that would be kind of like responding to questions about inconsistency by accusing mental illness and demanding censorship regardless of facts, rules, or circumstances. But compared to an internet argument, we can only wonder why Ed Martin thought he could buddy up to the Admin, as if in common cause, in order to duck the question and seek satisfaction.
____________________

Notes:

¹ Parloff's correction↱ explaining, "only the first letter to Chief Judge was 'ex parte'" also provides a handy pointer for those unfamiliar: "('Ex parte' means without notifying opposing counsel.)"​

Benen, Steve. "Justice Department's Ed Martin faces disciplinary proceedings from the D.C. Bar". MS NOW. 10 March 2026. MS.NOW. 10 March 2026. https://www.ms.now/rachel-maddow-sh...ces-disciplinary-proceedings-from-the-d-c-bar

Fox, Hamilton P. and Jerri U. Dunston. "Specification of Charges". In the Matter of Edward R. Martin, Jr.. District of Columbia Court of Appeals Board on Professional Responsibility. 6 March 2026. s3.DocumentCloud.org. 10 March 2026. https://s3.documentcloud.org/documents/27803685/martin-complaint.pdf

https://twitter.com/x/status/2031393594901180541

 

[Tiassa]

What it Takes: Dysfunction Proviso (#WhatTheyVotedFor)

Chris Geidner↱ explains:

The Justice Department is barely even a functional law firm at this point.

DOJ — which had been known as a place where some of the best lawyers would take a pay cut to work at, because the opportunities for exciting, important work were so plentiful and the colleagues were of such high quality — is not DOJ any longer.

There is no other way to say it.

And there is more proof of that depressing reality each day.

On Thursday, DOJ filed a notice nearly a week after the summary judgment hearing in a key case over the Defense Department's new, restrictive press policies, with DOJ "clarify[ing]" two pivotal statements made at the hearing about whether the policy sets objective or subjective standards for granting or denying press passes and what communications by reporters the government believes could be criminal ones.

On Friday, Judge James Boasberg quashed subpoenas issued by the U.S. Attorney's Office in D.C. against the Federal Reserve, with the judge finding the government presented "no evidence whatsoever" of a crime that could be properly investigated and that, as such, "asserted justifications for these subpoenas are mere pretexts."

These are, simply put, two paragraphs I would not have ever expected to write about the Justice Department in any of my time covering it — even during the worst moments of the John Ashcroft or Alberto Gonzales tenures during the George W. Bush administration (some very bad actors!) or even Jeff Sessions's tenure during the first Trump administration (some very bad policies!)​

To be clear, when he says those are paragraphs he never expected to write about the Justice Department, that's something of an understatement.

In the first issue, pertaining to a New York Times lawsuit against the Department of Defense in re Pentagon reporting credential standards, Judge Friedman heard arguments from both parties per their motions for summary judgment. Geidner explains

Six days later, DOJ filed a "notice of clarification" asserting, essentially, "We realized our answer won't work" ....

.... The "more subjective … than objective" standard that Bruns described on March 6 became "an objective standard … guided by enumerated, objective factors" that "may involve considerations that require expert judgment which frequently must be subjective in nature" on March 12, if you think that's different.

In a response filed on Friday, the Times's lawyers from Gibson, Dunn & Crutcher called the "clarification" out for what it was.

"Defendants attempt to walk back that case-ending concession—but, unable to deny the Policy's grant of standardless discretion, they settle on the doublespeak that it is an 'objective' standard that will be implemented 'subjective[ly],'" the Times's lawyers wrote. "Even setting aside the incoherence of that explanation, Defendants' letter does not change what the Policy says: PFACs may be suspended, revoked, and denied under the very same impermissibly vague "national security" standard the D.C. Circuit found unconstitutional in Sherrill v. Knight."

This is just on example from this hearing, and one of the two "clarification[s]" issued after the fact, but, suffice it to say, this is not what a lawyer should be doing — and it's certainly not something that would have been expected out of the Federal Programs Branch in the past.​

The day before, D.C. Chief Judge Boasberg quashed Department of Justice subpoenas to the Federal reserve, unsealing that ruling on Friday. It stands out that U.S. Attorney Pirro worked with Steven Vandervelden, the dance studio photographer who failed to indict members of Congress for reminding military personnel of the law. Geidner explains:

In his opinion rejecting DOJ's arguments and granting the Fed's motion to quash the subpoenas, Boasberg — who has spent more than his fair share of time dealing with Trump administration arguments and defenses of the past year — did not mince words.

Citing "one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates," Boasberg explained, "the President has been unable to push rates lower through social-media posts." Noting that, as such Trump had "hinted at other options" to "get him out," Boasberg continued:

「Perhaps it comes as no surprise, then, that the D.C. U.S. Attorney's Office has recently opened a criminal investigation into Powell. It has served two subpoenas on the Federal Reserve Board of Governors, seeking records about recent renovations of the Board's buildings and testimony that Powell delivered to Congress that briefly discussed those renovations. The Board has now responded with a Motion to Quash, contending that the subpoenas are merely part of the gameplan to pressure Powell to bend to the President's wishes or to get rid of him. The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas' dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will. On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts. It will therefore grant the Board's Motion to Quash.」​

As I noted on Friday, this is an astounding statement from a federal judge about the executive branch, generally; the Justice Department, more particularly; and these subpoenas, specifically.

This is not the way the government was seen by federal judges, and it was not at all the way the Justice Department acted or the defenses it had to attempt to justify the government's actions.

(Boldface accent per Geidner)​

Compared to what they voted for, this is what it takes.
____________________

Notes:

Geidner, Chris. "DOJ is barely even a functional law firm at this point. Each day there is more proof." Law Dork. 14 March 2026. LawDork.com. 14 March 2026. https://www.lawdork.com/p/doj-is-barely-even-a-functional-law

See Also:

Boasberg, James. "Memorandum Opinion". Board of Governors of the Federal Reserve System v. United States of America. United States District COurt for the District of Columbia. 11 March 2026. storage.CourtListener.com. 14 March 2026. https://storage.courtlistener.com/recap/gov.uscourts.dcd.287334/gov.uscourts.dcd.287334.32.0.pdf

Bruns, Michael, Brett A. Shumate, and Joseph E. Borson. "Defendants' Notice of Clarification Regarding Statements made at Oral Argument". The New York Times Company v. Department of Defense. United States District Court for the District of Columbia. 12 March 2026. storage.CourtListener.com. 14 March 2026. https://storage.courtlistener.com/recap/gov.uscourts.dcd.287334/gov.uscourts.dcd.287334.32.0.pdf

Spoiler

 

[Tiassa]

The Hits Keep Coming: Good Enough for Government Work (b/w, Lowering the Bar)

Via Bloomberg↱:

The Justice Department has waived a policy requiring newly hired federal prosecutors to possess at least one year of experience practicing law, as US attorneys' offices struggle to find qualified replacements following mass departures.

Many offices have previously adopted their own rules mandating at least three years of legal practice, rather than the nationwide baseline threshold of one year. But the reduced standards this month were implemented in federal districts such as Minnesota and Southern Florida that have experienced significant attrition to put new prosecutors to work straight out of law school.

The move was confirmed by two people familiar with the matter and reflected in newly-posted online vacancy announcements in at least a handful of offices.

In a March 13 message with the subject line, "Suspension of Attorney One Year Experience Requirement," DOJ headquarters informed US attorneys' offices that the department's lawyer recruitment office now permits them to exclude the one-year minimum when advertising vacancies. The memo reviewed by Bloomberg Law goes on to state, "This suspension is in effect until February 28, 2027, and was implemented due to an exigent hiring need for attorneys across the Department."​

Lowered expectations is now a feature of governance by the party known for complaining that government doesn't work. Once upon a New American Century, George W. Bush lowered the standards for military enlistment in hopes of avoiding conscription to support his warring adventures in Afghanistan and Iraq. Now, Donald Trump would lower the standards for U.S. Attorneys because the administration cannot find enough experienced attorneys willing to gamble on the political agenda at Department of Justice.
____________________

Notes:

Penn, Ben. "DOJ to Start Hiring Prosecutors Directly Out of Law School". Bloomberg Law. 16 March 2026. News.BloombergLaw.com. 16 March 2026. https://news.bloomberglaw.com/us-la...-of-us-prosecutors-straight-out-of-law-school

 

[Tiassa]

Where It's At

Adam Klasfeld↱ explains a particular implication of AAP v. Kennedy:

In a little-noticed passage of the 45-page order, Judge Murphy quoted from a transcript from oral arguments that took the government's arguments to its most absurd and dangerous conclusion. The passage quotes Murphy's exchange with a government attorney about a series of hypotheticals.

「THE COURT: … Let's say that instead of revising the vaccine schedule, the CDC said, actually, we think measles is good for you; you should go have lunch with someone with measles, and we are sponsoring measles lunches in every city, come have some measles lunch, that would seem to -- that would seem to go right up against the goal of preventing communicable diseases. Would such a policy by the CDC be judicially reviewable?

DEFENSE COUNSEL: I think that would still be committed to agency discretion by law.

THE COURT: So even if what the agency was saying is we like communicable diseases and we think you should get more of them, that's not judicially reviewable.

DEFENSE COUNSEL: No.」​

In another passage, Judge Murphy asked whether a court could review a recommendation that "you should get a shot that gives you measles." The government answered: "No."

By inventing what he called "somewhat ridiculous" examples, Murphy illustrated and rebuked the unrestrained power the government wanted to put in RFK Jr.'s hands.

"This argument can only be countenanced if one completely abandons the idea of objective fact, a nihilist endeavor this Court does not find appropriately read into Congress's public health statutes," he wrote.

‡​

Like other Trump administration policies, RFK Jr.'s revamp of the childhood vaccine schedule was stricken under the Administrative Procedure Act, a law protecting against "arbitrary and capricious" government actions.

Judge Murphy found that Kennedy tried to end-run the Advisory Committee on Immunization Practices (ACIP), established in 1964 to provide expert guidance on vaccines.

In June, RFK Jr. purged all 17 members of ACIP and summarily replaced them.​

Here's what Judge Murphy↱ had to say:

The Court acknowledges that many of the ACIP members have extensive expertise in their chosen fields. But "advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed by the committee." 41 C.F.R. § 102-3.60(b)(1) (emphasis added). And ACIP's own charter directs that the members of the committee:

shall be selected from authorities who are knowledgeable in the fields of immunization practices and public health, have expertise in the use of vaccines and other immunobiologic agents in clinical practice or preventive medicine, have expertise with clinical or laboratory vaccine research, or have expertise in assessment of vaccine efficacy and safety.

ACIP Charter at 5. On this point, there are glaring gaps.​

​

We should note, that includes footnotes 44 and 45. Of the former, His Honor explained, "The Court finds the requirements provided in the ACIP Charter instructive for assessing the relevant points of view to be balanced, especially because FACA itself mandates the submission of a charter." The latter advises, "The Court respects the technical expertise and specialized judgement of federal agencies and recognizes that agencies are thus entitled to some deference in this determination. Nevertheless, "Congress enacted FACA to constrain executive discretion, suggesting it did not intend to preclude judicial review" of the fair balance requirement"

The primary text continues:

First, of the fifteen members currently on ACIP, even under the most generous reading, only six appear to have any meaningful experience in vaccines—the very focus of ACIP. The Court does not suggest that the other members are not experts in their respective fields, only that the committee as reconstituted is not "fairly balanced in terms of . . . the functions to be performed." 5 U.S.C. § 1004(b)(2); see also ACIP Charter at 5 (directing that members "shall be" "knowledgeable in the fields of immunization practices," "have expertise in the use of vaccines and other immunobiologic agents," "have expertise with clinical or laboratory vaccine research," or "have expertise in assessment of vaccine efficacy and safety" (emphasis added)). At least six ACIP members … appear to lack any expertise or professional qualifications related to vaccines or immunization as required by ACIP's Charter … An additional three of the current ACIP members … though they have some experience arguably relevant to ACIP's function, appear to lack the qualifications and experience to constitute expertise in vaccines and immunization. Compare id., with ACIP Charter at 5. In short, ACIP is not just a committee of doctors, or even a committee of public health experts; it is a committee specifically dedicated to the "use of vaccines and related agents for effective control of vaccine-preventable diseases." ACIP Charter at 2. As to that specific function, the newly appointed members appear distinctly unqualified. A committee of non-experts cannot be said to embody "fairly balanced . . . points of view" within the relevant scientific community … It is more accurate to say that they do not represent points of view within the relevant expert community.​

The easy joke is, just don't call it "cancel culture". But this also feels like an internet argument come to life in federal court; this is what happens when we oblige certain arguments to make sense, and why conservatives worry about how considerations fact and integrity silence political views.

In a recent order, Judge Bissoon↱ of the Western District of Pennsylvania observed that "DOJ would trample states-rights … in service of its crusade to eliminate medical care that, until recently, was in its own eyes legal".

Judge Murphy, in the District of Massachusetts, is similarly skeptical of the government's sudden, seemingly arbitrary change of direction: "It is more accurate to say that they do not represent points of view within the relevant expert community"; "Defendants have provided no explanation for their disregard of the requirements laid out in ACIP's Charter, MBP, and Policies and Procedures. This failure to articulate any reason, let alone a 'satisfactory explanation for [the] action,' renders the ACIP reconstitution unlawful"; cite FCC v. Fox (2009), "An agency may not, for example, depart from a prior policy sub silentio."

One persistent mystery about conservative political argument is whether or not it is understood that no, not everything they disagree with is arbitrary. The government's turn seems arbitrary, and this is part of the reason for the Court's doubt.

And this is an important reminder against cacophony: No, all speech is not necessarily equal simply for having been uttered, and it is not any silencing of a politic to refuse what is insupportable or at least unsupported.
____________________

Notes:

Bissoon, Cathy. "Order". In re: 2025 UPMC Subpoena. United States District Court for the Western District of Pennsylvania. 2 March 2026. storage.CourtListener.com. 17 March 2026.

Klasfeld, Adam. "Tonight in Your Rights: RFK Jr. is reviewable". All Rise News. 17 March 2026. AllRiseNews.com. 17 March 2026. [url]https://www.allrisenews.com/p/rfk-jr-vaccines-murphy-tiyr

Murphy, Brian E. "Memorandum and Order on Plaintiffs' Motion for Preliminary Injunction". American Academy of Pediatrics v. Kennedy et al. United States District Court District of Massachusetts. 16 March 2026. storage.CourtListener.com. 17 March 2026 https://storage.courtlistener.com/recap/gov.uscourts.mad.286605/gov.uscourts.mad.286605.291.0_2.pdf
​

 

[Sarkus]

There are echoes here of when SCOTUS handed Trump (and future Presidents) immunity, with their counsel arguing that if Trump got Seal Team 6 to take out rivals, this would be covered under his immunity. It takes such extreme examples to highlight the weakness in the judgements that subsequently allow them. And that would seem to be what is being argued for here.

 

[Tiassa]

It takes such extreme examples to highlight the weakness in the judgements that subsequently allow them. And that would seem to be what is being argued for here.

Part of what has happened is that the rhetoric has become the reality. American conservatives have, for over thirty years, at least, pretended that anything they don't like is somehow illegitimate, arbitrary, and conspiracist.

Sudden, arbitrary-seeming turns of policy generally don't fly with courts, and this is basically what it comes to. Since everything Republicans don't like is illegitimate, in their eyes, and only exists because some evil person insists, it seems only natural to them that doing what they want should be so easy as declaring that it is so.

It's like they think they run a backwater discussion board where nobody can do anything about abusive governance. And they think they should be able to purify it by alienating and, if necessary, expelling dissent. Remember, even Congressional Republicans support deporting American citizens↱ for disagreeing with the president.

An awkward bit of trivia about how this goes is to consider that the Chief Justice, who granted Trump nearly universal immunity, once pretended to be aghast in order to wag at Solicitor General Elena Kagan about the horrors of tyrannical overreach, such as a government wanting to know who was participating in an election. And "Kavanaugh stops"↑ are an arbitrary revival of stop-and-frisk. Remember, no amount of evidence, logic, and caselaw can overcome this conservative jealousy; since everything they don't like is just liberal judicial activism, they can do the same. Therefore if the Supreme Court once said it would not attempt to resolve a question outside its expertise that nobody had figured the answer to before, the Roberts Court sees no reason why they shouldn't do just impose the answer. The question itself, after all, can only be arbitrary, because conservatives don't like it.

And, yeah, that kind of thinking can be found at pretty much any backwater discussion board with abusive governance. In fact, it's kind of consistent throughout the conservative argument. The extreme examples, as such, are what it takes to highlight the problem when reality itself is insufficient. If it came down to vacating a murder conviction for, the Roberts Court would observe that the value of law in a free society is that one can speak their dissent without fear shortly before overturning the Law of Gravity in order to accommodate the bliss of ignorance for a Republican who dropped piano on his opponent.

(Actually, Roberts would probably see how silly that is, and do one of his carveout decisions where the Court isn't making precedent or overturning the caselaw, but, gosh, it would just be unfair to call it murder if the conservative says he didn't know that would happen. And when it comes right down to it, Congress never actually passed the Law of Gravity, and the Court cannot apply a law that does not exist. Put the two together, and it just wouldn't be fair to convict a man like that.)

(Anecdote & juxtaposition: When I was five, we were going to see a movie when my father took my brother and me aside to make sure we understood the difference between fantasy and reality, that we couldn't just put on a cape and suddenly fly. Apparently, some child had just done that, jumped out of an apartment building because he wanted to fly like Superman. And even then, my brother and I knew we couldn't do that; duh, we weren't from Krypton. We also knew we weren't bipedal talking coyotes who could survive any impact, including falling pianos, so even then dropping pianos on each other was beyond the pale of sibling rivalry. He threw me down the stairs and through a wall, once, but no, we could figure out the part about dropping pianos and anvils and safes on one another without an assist from the Supreme Court.)​

 

[Sarkus]

Taking this request in good faith (and why wouldn't you), is there any whataboutism you could think of regarding the liberals? I mean, if you were a GOP member and had to say "yeah, but the Democrats also did..." then what sort of things are there? I'm asking as someone who has really only taken (even my modest) interest in the American political system since Trump began lying his way to the top, so I lack that history and perspective. Unfortunately (or perhaps fortunately) we don't really seem to have a GOP afficionado in our ranks who could offer their view of Democrats, or at least not at the same level of recall and detail.

 

[Tiassa]

Taking this request in good faith (and why wouldn't you), is there any whataboutism you could think of regarding the liberals? I mean, if you were a GOP member and had to say "yeah, but the Democrats also did..." then what sort of things are there

The first thing to mind is that Republicans might set an infamous precedent, but if voters keep rewarding it, Democrats must consider using every available tool, as such. To pass over what voters are rewarding because a politician knows better than the voters is the attitude of the pious loser.

In my lifetime, it's been steady decline: Campaign rhetoric during the Atwater and Rove periods, campaign financing throughout. A good analogy is to watch conservatives react to the Newsom social media accounts mocking Donald Trump in kind; do we really think conservatives are all so dishonest, or perhaps some of them genuinely don't recognize what the California governor is doing.

The thing is, it's been so long; most Democratic Party failures involve trying to accommodate conservative voters, or, at least, that's how it seems. What makes it harder to identify Democratic exposure in the whatabout way is that Republican whataboutism is derived almost entirely from conservative make-believe.

Can you imagine a Democrat imposing single-payer healthcare the way Trump initiated a pogrom? Can you imagine the American people going along with it? Can you imagine a Democrat trying to nationalize the housing sector in order to redevelop and reallocate excess housing toward ending homelessness?

Consider the ACA, "Obamacare". President Obama conceded single-payer in return for a Medicare cost gap closure that, when I ask around among seniors, seems to still exist. In other words, Obama surrendered single-payer early in the discussion, and got nothing in return for the concession.

Anyway, Republican voters, it turns out, hate the individual mandate that the flaming leftists over at the rightist Heritage Foundation devised. Remember, all that Republican loathing of Obamacare, in its moment, was fake; the plan came from the Heritage Foundation, and Republicans celebrated when a Republican governor oversaw its passage and implementation in a generally liberal state. Conservatives only turned against their own plan once the black Democrat agreed to compromise and adopt the Republican plan.

There is no Democratic analogy to this kind of Republican dishonesty; there is no comparative whatabout. Before it was over, the guy who actually fought against Nazis in a war was denounced as a Nazi because the individual mandate that he once shepherded in order to ward off single-payer was denounced as Nazi, among other things.

The closest I can think of in the moment has to do with discussions of free speech. Some part of the conservative complaint against liberal censorship comes from liberal demand that if this is the law then it should be applied equally. In practice, this is what usually stays certain censorship, that the standard would censor the Bible, for instance. It is possible to find a more proactive censorship among liberals, but it's so far downstream those ideas occur in a different context. Honestly, I think liberalism and leftism have to get more popular in the United States before we can experience the leftward analogy to the Christianist book banning standards in which the liberal contribution to divisiveness is to not censor for arbitrary reasons.

But given the unreliability of conservative accusation, it really is hard to visualize the liberal analogy. And if we consider basic human frailty, it's also true that, sure, Democrats screw up badly in basic, human ways. They cheat on their spouses, embezzle money, drive drunk, and even abuse their kids sometimes. But, for example, once upon a time, I had a discussion about a corrupt Democrat who cheated on his wife, among other things, and that was what it was, but only days later one of the people I had that discussion with did his whatabout and demanded to know why I wouldn't criticize Democrats for infidelity. It's unclear what his actual complaint was; infidelity is as infidelity will, but we had just discussed the Democratic Attorney General who got caught literally committing crimes to cheat on his wife, a prosecutor renting high-end prostitutes from the kinds of operations he prosecuted. Then again, it's not an uncommon complaint that I just can't complain to conservative satisfaction.

†​

There is also the point that I'm looking at this question according to approximate overton standards. What happens if someone hits me from outside that range? Leftists can probably pretend a lot of whataboutism toward the liberal argument, but such critiques are usually built of idyll they cannot explain. For instance, a leftist critique against identity politics can sound very much like a rightist argument; the basic difference is the rightist tells certain classes they are lesser and excluded, while the leftist argument looks at those excluded people and tells them to stop talking about all that and just trust us.

Try it, sometime. Try telling a woman to stop talking about misogyny and just trust you. I actually know a socialist who does that line: Stop talking about identity politics and start talking about classism. And it's like, yeah, yeah, yeah, white boy, go tell black people to stop talking about identity politics and just trust your class war to take care of them, because the track record on this is kind of observably terrible.

Moreover, we're Americans; John Adams¹, whining about the despotism of the petticoat, already made the point about why women shouldn't trust the class war. In our American context, women know they must achieve power, not wait for the class war to wake up tomorrow and treat them fairly.

But, sure, the short form is that rightist critique and whataboutism is nigh on delusional, and leftist critique of Democrats is abstract and anchored in idyll. It's kind of like that weird horseshoe theory; the one thing everybody on the horseshoe can agree on is that liberals are shite. For the rightists, the liberals won't buy into the con job. For the leftists, liberals aren't perfect.

The Democratic Party, meanwhile, is only nominally liberal. Furthermore, being subject to local democracy, the Democratic Party coalition is wildly variable. It's harder to criticize Democrats for a lockstep they never achieve. But think of the conservative Christian for a moment: The conservative part complains the Democratic program doesn't work, but that's a point of compromise that can be corrected; the Christian part knows the solution is to actually make the program work. Like, say, food security.

And if someone presses me on Biden and Israel, I can always point to Christian Zionism, which is a really complicated discussion with very few hopeful resolutions.

Meanwhile, if a lot of Democrats played to tech and finance sector needs, for instance, there are reasons. When the American people are faced with Congress either passing a bad bill or doing nothing, Democrats get yelled at for not compromising enough in order to pass a bill. And then they get yelled at for compromising. Eighteen years ago, for instance, Democrats tried to compromise in order to pass a terrible immigration reform bill, but Congressional Republicans abandoned a Republican president, and that's the beginning of the "Dreamer", or DACA, dispute. And for whatever reason, Democrats keep trying to compromise and pass Republican border bills. And we all saw, in '24, Congressional Republicans turning against their own bill yet again.

(I do think Democrats should put together a real border security and migration bill, but it will run into the same objections and demands to exclude that everything else does. You know, Christians hollering about who doesn't deserve to eat, or something like that.)​

To me, once we acknowledge and account for the proverbial everything else, sure, there are probably some whatabouts that sound good, but for Democrats in the historical period of my lifetime, circumstance has worked out that certain otherwise valid and even important critiques are hamstrung by observing the societal condition compared to whether Democrats can bring an idyll to bear. That is to say, approximately, "Sure, but in the moment that just doesn't sound like a practical expectation of voters."

Of course, if that's the answer, then we must find a way to change that expectation.

It's like, you can lead a horse to water but you can't make it drink; meanwhile, part of the job is to keep the horse alive until it drinks, and since we're not letting these people here kill this horse for disobedience, they're beating that dead horse over there. And if you tell a rightist they shouldn't beat the dead horse, some leftist will remind that you had a horse, once, even if you didn't.
____________________

Notes:

¹ The revolutionary who would become the second president of the United States responded to his wife, Abigail, and her famous plea to "remember the ladies":

「 We know better than to repeal our Masculine systems. Altho they are in full Force, you know they are little more than Theory. We dare not exert our Power in its full Latitude. We are obliged to go fair, and softly, and in Practice you know We are the subjects. We have only the Name of Masters, and rather than give up this, which would compleatly subject Us to the Despotism of the Peticoat, I hope General Washington, and all our brave Heroes would fight.」​

See also: "The Trump Presidency" #173 (2017)↗.
​

​

 

[Tiassa]

This Thing That Should Not Be (Broadview Six Mix)

The case is known as the "Broadview Six", USA v. Rabbitt et al.; the Transcript of Proceedings↱ from a May 21 hearing is harrowing:

Although I am not going to prejudge the issue without a hearing, I will say that I was incredibly shocked by the redactions that were made. I have read hundreds, if not thousands, of grand jury transcripts involving prosecutors who are the most junior of prosecutors to several U.S. Attorneys who appeared before the grand jury. I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts.

At a high-level summary for the defendants, who do not have the benefit of having seen the transcripts yet, several potential issues jumped out at me immediately and
glaringly. First, improper prosecutorial vouching to the grand jurors, with the AUSA putting her personal credibility and trustworthiness on the line in support of the charges.

Second, improper prosecutorial communications of a substantive nature with the grand jurors outside of the grand jury room.

And, third, the prosecutor excusing grand jurors who disagreed with the government's case from the deliberations process.

Which brings me to problem Number 4, which is the fact that all of this was redacted out of the versions of the transcripts that I got. And frankly, it is that that I find the most problematic. Mistakes happen. They happen to all of us. But as I tell my children, you own it. You admit to it. You apologize for it, and you move on. What you do not do is hide it.

I relied on all of you and your personal representations in this case about what has been issued in discovery, about the types of searches you have done for exculpatory material, about what arguments you will and will not make in this case. And I do that because, first of all, I treat every attorney who appears before me as an officer of the court. But secondly, because I put even more reliance on Department of Justice attorneys. Your sole goal is to do justice. Your client is justice itself.

I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken.​

Attorney Andrew Fleischman↱ explains:

Trump DOJ prosecutors:

1. Vouched to GJ that case was strong
2. Kicked out grand jurors who disagreed with them.
3. Talked to the jurors off the record (wtf)
4. DID NOT TELL THE DEFENSE THERE WAS A NO BILL
5. Redacted those bits from the transcript​

Yeah, that's bad. Oh, and point four, per Mr. Mandell, presenting on behalf of intervenors:

And I just want to tick off a few examples that were not specifically, I don't believe, called out in our brief. And first you have Judge Cummings's determination in the Nava vs. DHS case that ICE violated a longstanding consent decree by conducting warrantless arrests.

Then you have Judge Ellis's determination that the federal agents had used unreasonable force toward protestors at the Broadview facility. And more importantly, that at least one federal agent lied about the events that took place there.

And I understand that her preliminary injunction was ultimately shot down by the Seventh Circuit, but these are findings that she made after evidentiary hearings.

Then, of course, you, Judge Perry, found that the government's evidence was unreliable in the National Guard case and a lack of candor and failure to reveal that grand juries had failed to return indictments against those whose arrests the government was relying on to request National Guard support.

Then you have the case in front of Judge Alexakis, US vs. Martinez. That's the case where a federal agent pumped five bullets into Ms. Martinez's body and then bragged about it to his buddies, bragged about the fact that he got seven bullet holes out of the exercise. Not to mention that the government car that supposedly rammed or -- that was supposedly rammed by Ms. Martinez's car mysteriously disappeared to Maine, Number 1, where bodywork was done on it; and, Number 2, when the agent admitted under oath that it wasn't really rammed.

Now Judge Alexakis chastised the government by allowing to remain on its website the assertion that she was a domestic terrorist long after they dismissed the charges against her, and also that the government mischaracterized the facts of the case in a brief in Your Honor's case to the U.S. Supreme Court.

Finally, you have Judge Fuentes's opinion in which he notes that the five arrest cases that came before him, all supported by sworn declarations that supposedly were corroborated by video evidence, all were dismissed, and in three instances a grand jury returned a no bill.

So he found it, as he stated, a sobering event that he had signed a complaint finding that the government's allegations supported a finding of probable cause, only to find out that the grand jury refused to find probable cause.

He closed his opinion by stating, "But the Court cannot help but note just how unusual and possibly unprecedented it is for the U.S. Attorney's Office in this district to charge so hastily that it either could not obtain the indictment in the grand jury or was forced to dismiss, concluding the case is not provable in repeated cases of a similar nature." And that's just here, Your Honor. If you look to other jurisdictions, similar things are going on.

In the Minnesota federal court, you may be aware of the case against Journalist Don Lemon. There a magistrate judge refused to sign a warrant for his arrest. And in an unusual situation, the government went to the district judge and asked him to review that, and the district judge refused to question the magistrate judge's determination. And not happy with that, they took it to the Eighth Circuit, who also refused to question the situation.

So -- and then the district judge in that case noted that the government had disobeyed scores of orders, court orders in that case.

So in sum, Judge, given the landscape that we've outlined here, this is a case, again, that calls for transparency, not sealing.

(boldface accent added)​

It is not insignificant that Her Honor saw fit to allow him to make his argument, and did not interrupt for clarification. And that part about Judge Fuentes, three no-bills, and probable cause, it almost goes by unnoticed amid the horrifying litany, but is an astonishing Thing That Should Not Be in and of itself, something a lawyer, what, should never get to say, never have to say, a discussion that should never have occasion to occur.

Recalling prior rulings in the case, Judge Perry explains:

I, at the time, was operating on a presumption of regular grand jury proceedings, which these were very clearly not.

So based upon what I've seen in the grand jury transcripts, the calculus has changed and it has changed considerably.​

The trust of regularity is once again broken. It's not just that this is what they do, but, rather, this violation of trust is what they always needed in order to do what they do. The unreliability, the dishonesty, the uncertainty, are elements without which they cannot succeed. To the one, law enforcers were always supposed to be better than this; to the other, we see the craven depths required to justify the bigotry of conservative politics and beliefs.
____________________

Notes:

United States District Court Northern District of Illinois Eastern Division. "Transcript of Proceedings — Hearing Before the Honorable April M. Perry". United Statse of America v.Michael Rabbitt et al.. 21 May 2026. assets1.CBSNewsStatic.com. 27 May 2026. https://assets1.cbsnewsstatic.com/h...9bae7c6348cf/25cr693-usa-v-rabbitt-052126.pdf

https://twitter.com/x/status/2059228150765072838

 

[Tiassa]

Regular Irregularity

This is, uh, well, it's kind of bad:

On the surface, the case of Bryan Rafael Gomez seemed like thousands of others filed from coast to coast as the Trump administration has detained immigrants without a bond hearing.

But after Gomez successfully petitioned for his release, it became clear his case could hardly be more different.

First, on April 30, the Department of Homeland Security posted a press release online that blamed an "activist judge" for releasing "a violent criminal illegal alien who is wanted for murder in the Dominican Republic."

After media coverage of that release ensued, the judge, Melissa DuBose of the District of Rhode Island, issued a stark order that same day. Noting that the government had never apprised her of the detainee's "dangerousness and/or criminal history," she directed the Justice Department to explain why it should not be held in contempt.

And that's when things really took a turn.

In his May 1 response, the DOJ lawyer involved, Kevin Bolan, acknowledged that he knew, prior to DuBose's release order, that Gomez had an outstanding 2023 arrest warrant, but he said unnamed Immigration and Customs Enforcement officials told him Bolan "was not permitted to disclose that information" to DuBose for an unspecified "legitimate law enforcement reason."

Bolan added, "I sincerely apologize to Judge DuBose, personally, and to the entire Court for the consequences of this lack of disclosure."

(Rubin↱)​

Judge DuBose referred Bolan to the civil division of the Rhode Island U.S. Attorney's Office, and suggested she might sanction ICE and DHS personnel; the district chief judge has appointed an investigation. Having reversed her release order, Her Honor then learned that ICE cannot reacquire Mr. Gomez because he is in the wind. Gomez's lawyer has filed to withdraw from the case.

Lisa Rubin notes that the press release remains in circulation, and that the general counsel for DHS published a column in The Federalist "accusing DuBose of 'reckless disregard for the law'" and complaining of judicial misconduct in Her Honor's response to Bolan's failure to disclose; the attorney and MS NOW analyst explains:

As recently as last year, that any government lawyer, much less an experienced litigator like Bolan, would knowingly conceal information from a federal court would have been unthinkable. It would have been equally inconceivable that a federal agency would continue to blame a federal judge for a decision attributable, even if partially, to the agency's withholding of information. ​

To the one, this is what it takes. These are the needs of a pogrom.

To the other, that's not nearly the whole of it. Rubin goes on to discuss a case before Judge McElroy:

… in the Trump administration, episodes like the Gomez case are no longer aberrations, even in the tiny District of Rhode Island, which has only three judges with lifetime tenure.

On May 13, a second of those judges, Mary McElroy, released a scathing opinion in a case involving what the DOJ has framed as "a nationwide healthcare fraud investigation" into gender-affirming care for children. As a part of that investigation, the department issued to Rhode Island Hospital what McElroy described as a "broad and sweeping" subpoena seeking several years of "sensitive medical information of every minor patient that had received gender affirming care at that hospital."

McElroy invalidated that subpoena for several reasons, including the minors' right to privacy and her finding that the subpoenas were issued to harass and intimidate those who provide gender-affirming medical care for minors.

But prior to reaching that legal conclusion, McElroy recounted the history of the subpoena and the ensuing litigation, concluding that the DOJ has "proven unworthy of [the Court's] trust at every point in this case."

The department, according to McElroy, not only "misrepresented and withheld" information from her, but then it did the same in a Texas federal court where it sought to enforce the subpoena. Specifically, the DOJ led the Texas court to believe the hospital was unresponsive and uncooperative, when in fact it was the DOJ that had failed to communicate with the hospital for months. Moreover, to convince the Texas court it had jurisdiction over a subpoena to a Rhode Island hospital, the DOJ said the investigation was being led by its Northern Texas office, even though all but one of the lawyers involved works in the department's Washington, D.C., headquarters.

McElroy also found the DOJ purposefully misled the hospital itself in what McElroy described as a "subterfuge to prevent [the hospital] from realizing that the DOJ had decided to go to Texas for an order compelling production of the very records that they had been discussing for months."

According to McElroy, the DOJ's misrepresentations and omissions had a very real cost. The Texas court not only granted the enforcement order without notifying the hospital, but also both it and the Fifth Circuit refused the hospital's request for a stay, prompting it to file an emergency motion in Rhode Island.​

And, again, this is what it takes.

And here's the thing:

Since the early days of our nation, federal courts have extended something called the "presumption of regularity" to government officials and employees. Broadly speaking, the presumption is the idea, as a law review article tracing its history explains, that people working for the executive branch "are lawfully and consistently discharging their duties."

In modern times, that concept has evolved to include an assumption that Department of Justice prosecutors are accurately representing facts — and not concealing pertinent information.

But McElroy, in concluding her opinion, quoted an earlier Oregon district court ruling that determined the presumption that the DOJ "could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds."

(boldface accent added)​

In a social media post↱, today, Rubin notes that Judge McElroy has now similarly referred an Assistant U.S. Attorney for disciplinary consideration.

To the other, at least they're sticking it to [(fill in the blank)]. If you have a problem with nonwhites, or transgender, at least the Trump administration is doing this much for you. Still, though, remember, this is what it takes.
____________________

Notes:

Rubin, Lisa. "How Trump's Justice Department may be forfeiting judges' trust". MS NOW. 18 May 2026. MS.NOW. 5 June 2026. https://www.ms.now/news/news-analysis/trump-justice-department-trust-presumption-regularity

https://twitter.com/x/status/2062962423686930758

 

[Tiassa]

Quality Control, or a Lack Thereof

Kyle Cheney↱ reported, this morning:

DOJ inadvertently delivered Volume II of Jack Smith's report to the lawyers representing a defendant accused of improperly accessing/sending the report to herself.

They notified Judge Cannon of the breach today.​

From the joint notice↱ in U.S. v. Nauta and de Oliveira:

On June 3, 2026, the Government fulfilled its Rule 16 discovery obligations by furnishing electronic evidence and materials in its possession related to this criminal prosecution on flash drives to defense counsel. On June 9, 2026, defense counsel promptly notified the Government that, upon reviewing the electronic discovery that same day, defense counsel identified three documents embedded within the materials and contacted the Government to determine if those documents were intended to be produced in discovery. Upon review, the Government confirmed the documents in question were copies of the Volume II Report that were embedded within electronic messages required to be produced in discovery. Upon confirmation by the Government, defense counsel voluntarily ceased review of the discovery material, affirmed they had not examined the documents in question, deleted all discovery materials already downloaded to their server, and cooperated with the Government's efforts to recover the flash drives that same day.

The Government acknowledges the professionalism and candor of defense counsel in remedying this inadvertent inclusion in discovery materials furnished by the Government.​

Thus: After all Trump's attempts to forestall release of the second Mueller volume, Trump's DoJ accidentally sends it to the attorneys of Trump's alleged co-conspirators, resulting in DoJ praising those attorneys representing Trump's alleged co-conspirators.

It's not just the "inadvertent discovery disclosure", which is ridiculous enough in itself, but also that it happened in this case, with these defendants, because the people around Trump just seem to radiate irregularity and appearance of impropriety.

Remember, also, that the alternative is that every defendant should receive the deference Trump has enjoyed from the judiciary and law enforcers. There is always that possibility.

And like so many other political subjects of disagreement, one of the objective questions we can consider is consistency. No argument that requires the inconsistency we see in law enforcement and the judiciary can claim the basic integrity of regularity, and cannot pretend equality. It's the kind of basic fact that easily gets lost in emotionalism.

Because it's important to remind↑, this sort of incompetence and unethical behavior is not normal for the Department of Justice. And while the subtle contrast is a matter of degrees, this intersection of corrupt and stupid is a reminder of what it takes to bring this degree of abnormality to bear; when quality control is anathema, results tend toward lower quality, and these are the people willing to do that work.
____________________

Notes:

Heekin, John P., Christie S. Utt, Tama Kidman, and Scott N. Richardson. "Joint Notice of Inadvertent Discovery Disclosure". U.S. v. Nauta and de Oliveira. United States District Court Southern District of Florida. 2 July 2026. storage.CourtListener.com. 2 July 2026. https://storage.courtlistener.com/recap/gov.uscourts.flsd.651411/gov.uscourts.flsd.651411.802.0.pdf

https://twitter.com/x/status/2072690665608155436

 

[Tiassa]

You … Wouldn't … Believe …

I mean ....

That is to say ....

Phuck.

Remember back in May when Trump's Justice Department charged a former prosecutor for sending herself copies of Jack Smith’s still-secret Volume II of Jack Smith's report disguised as cake recipes?

Today we learned that the Department of Justice inadvertently did the same thing they charged the former prosecutor with; they sent Volume II to her lawyers on accident, violating Judge Cannon's order to keep the report inside the DoJ.

(Gill↱)​

I mean, if we need a silver lining, we can consider the recent filing about accidentally violating Cannon's order in sending the otherwise-suppressed report to Donald Trump's alleged co-conspirators↑ something more toward corruption by incompetence than any competent intention of will.
____________________

Notes:

Gill, Allison. "DOJ Accidentally Sent Volume II of Jack Smith's Report to Outside Counsel". The Breakdown. 2 July 2026. MullerSheWrote.com. 2 July 2026. https://www.muellershewrote.com/p/doj-accidentally-sent-volume-ii-of

 

[Tiassa]

Slush Slain: Court Says No to Trump Settlement Fund

A federal judge in the Southern District of Florida has quashed the intended slush fund to pay the president's political allies:

These facts lead to the inexorable conclusion that the "settlement" terms, the individuals who signed the "settlement" as well as the putative beneficiaries of the "settlement," demonstrate a shared, unitary interest. And the unilateral revision and renunciation of the "Fund" component of the "settlement" demonstrate the fact that all Parties were aligned, and ultimately, undifferentiated. This action was never about a party seeking judicial resolution of a legal issue or a factual dispute. The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the law. The President may be the functional "dominus litus" of the Executive Branch, but as a party to a civil suit, he, as well as all the parties and lawyers before a court, are bound by the rules. Ensuring that our courts are used only for the express purpose created by the Constitution is the obligation of every judge and an obligation that this Court must discharge in light of the matter before it.

In sum, the facts before this Court demonstrate there was never adverseness between the Parties; there was never a case or controversy; and there was never a question as to who would prevail.​

Judge Kathleen Williams↱ also issued disciplinary orders. Alejandro Brito is referred to the Florida Bar. Todd Blanche is referred to the New York Bar, where settlement attorney and Associate Attorney Genearl Stanley Woodward is already under investigation. Attorney Daniel Epstein will be denied pro hac vice in the Southern District of Florida "for one year or until further order of this Court".

Additionally, "The Parties are prohibited from referring to the purported 'settlement agreement,' or using, offering, admitting, or citing any of its provisions in any judicial, administrative, regulatory, arbitration, or any other official proceeding as evidence of a 'settlement' reached in this matter." That is, they can't pretend this was ever any real thing. And while that part stands out on its own, Judge Williams enumerates President Trump, Don. Jr., Eric Trump, the Trump Organization, "and includes any of their agents, representatives, officers, directors, employees, partners, corporate agents, subsidiaries, affiliates, or any other person acting in concert with the party or under the party's control, whether directly or indirectly." Ordinarily, binding the plaintiff would be sufficient, but because of the lack of adverseness, the order explicitly includes defendants IRS and Department of the Treasury.

It's worth observing footnote 63, considering a private agreement "as if there is no judge", and reminding that "Regardless of whether Plaintiffs had ever filed this action, the Government and the Plaintiff still had the power to resolve all disputes between the parties". And, here, just think it through: Why would lawyers file an unnecessary action that might get them disciplined? Under normal circumstances, people are welcome to settle differences between themselves, but these parties are not normal. Trump's attorneys needed the Court in order to legitimize what is otherwise implicitly corrupt and improper. The judiciary has refused to play its intended part in such corruption.

†​

Once more, this is what it takes.

"The key to unlocking a court's inherent power", Judge Williams reminded, "is a finding of bad faith". And in that context, "The conduct of the Parties triggers the Court's inherent authority." It's one thing if plaintiffs "filed a multibillion-dollar lawsuit asserting claims that they knew, or should have known, were time-barred and for an amount of damages unsupported by facts or law", and that's the sort of thing that gets Trump's attorneys referred for disciplinary consideration. But, "Defendants' conduct is equally untenable," and Judge Williams goes on to accuse, "It is telling that the DOJ, which is tasked with enforcement of United States law, has remained conspicuously absent and silent when serious questions about this matter have been raised." Furthermore, "when representatives did choose to expound on the Department's conduct, they offered misleading explanations of the facts and the law."

In as plain of English as the Court can afford:

In abdicating its responsibility to zealously defend the interests of the United States, the Government entered into a "settlement" that deviated from its litigation posture in similar actions, disregarded DOJ policies, and accomplished objectives beyond those authorized, as well as those specifically prohibited, by law. Under these circumstances, the Court may reasonably infer that the Government failed to defend this lawsuit or to respond to the Court's jurisdictional inquiry because its position would not withstand judicial scrutiny and because resolution of the threshold issues identified by the Court would not have favored its preferred outcome to this case.​

Abdication. Deviation beyond what is authorized and including what is specifically prohibited by law. Failure to defend what cannot withstand judicial scrutiny. And all because they knew they would lose.

This is what it takes.

When you have some views that are "right wing"↗, or shift alliances not because your ideas have changed↗ but your party has gone charging off the ledge, so you will endure what you loathe for the time being, well, right, these are your actual allies, the ones who will carry forward those views and ideas.

And that's not a new idea; we've considered↗ it before↗: These are your allies, whether you want them or not. And it's not just that you're rolling with whackjobs, but it feeds a pretense of backlash against liberal excess. Consider a range in which refusing to redefine science and medicine in order to satisfy a religious demand is liberal excess.

And then consider Judge Williams: Is abiding the law an example of liberal excess?

And, yes, this is what it takes.

This kind of thinking and behavior is what it takes to fulfill certain desires and intentions. It's one thing if the party has leapt into an abyss, but that's what it takes to carry those views and issues.

These are also the anti-trans people. And anti-abortion. And anti-evolution. And white supr―… I mean protectors of white pur―… I mean defenders of our Anglo-American heri―… I mean Euro-American tra―… I mean guardians of Western Civilization. Oh, yeah, they're also the climate change deniers. And the censors and cancelers, if you haven't figured that part out, yet. And, hey, that's right, it turns out they really are some sort of child s―… I mean, ca. 2024↗, we're also talking about an argument that does not recognize consent in sexual conduct; after twenty-five or thirty years, more fool me to not believe them. Yeah, these are those people.

So the moral of the story, if any such thing can exist, is to observe that these people got caught trying to swindle a court in a way that just doesn't come up very often because most lawyers are smart enough to not try. This is what it takes to be those people.

This is what it takes to be the people who carry those views and issues to the line.

Inasmuch as↗ the past is the past↗ and cannot be changed, but we can, of course leave markers↗, this time the point is to observe, this is what it takes.

It's a familiar litany, by now, isn't it? Maybe, for the dabblers↗, the trade is somehow worth it, but people need to learn, this is a package deal; like throwing in with the Kitty Litter Brigade↗, you can't just dabble in one part of this stuff, or here and there↗, and expect that's all there is to it; this is what it takes and we see what it gets. And, sure, toward that↗, there is a point at which we don't really believe the dabbl―… I mean the naï―… I mean the nota―… okay, y'know, never mind: We just don't believe them.

Because, after all, this is what it takes.
____________________

Notes:

Williams, Kathleen M. "Order". Trump v. IRS. United States District Court Southern District of Florida. 13 July 2026. storage.CourtListener.com. 13 July 2026. https://storage.courtlistener.com/recap/gov.uscourts.flsd.706172/gov.uscourts.flsd.706172.106.0.pdf

 

[TheVat]

https://www.npr.org/2026/07/18/g-s1-134475/tate-brothers-arrested-miami

Wait.... our DOJ actually made itself useful and rounded up the Tate monsters? Turnip must have been taking a long nap or something.

 

[Tiassa]

Fear and Favor, or, Sympathy for the Devil

In the last year, at least two judges (EDVA, Minnesota) have resorted to citing dictionaries in order to explain to DoJ lawyers what they're missing.

Similarly, we might note Judge Farbiarz↱ in New Jersey, and what he needs to explain to DoJ lawyers:

"Overstaying" a voluntary departure period is generally something that the non-citizen does --- not something that is done to him, by his being kept in custody such that federal officials have essentially prevented him from leaving the country.

As noted above, the Supreme Court has indicated that "when the government grants a non-citizen the option to voluntarily depart . . . officials may detain and remove the individual only if he remains in the country after his voluntary-departure period has expired."

The Respondents cannot detain the Petition because he "remains" in the United States when it is the Respondents who have prevented him from leaving. Among other things, this would parlay the Respondents' due-process-violative conduct into a basis for mandatory detention.​

It's almost like these Trump lawyers think they're having an internet argument at a backwater site where they expect the admin to let them run amok.

To the other, while Judge Fairbairz makes the point, that's about all he's willing to grant the illegally-detained petitioner. DoJ attorneys, so far, are winning their gamble that judges won't hold them in contempt or refer them for prosecution. The Court is showing the government as much favor and affection as it can afford.
____________________

Notes:

Fairbairz, Michael E. "Opinion and Order". Torres Gomez v. Soto. United States District Court District of New Jersey. 22 July 2026. storage.CourtListener.com. 22 July 2026. https://storage.courtlistener.com/recap/gov.uscourts.njd.601006/gov.uscourts.njd.601006.12.0.pdf

 

[Tiassa]

Update: You Wouldn't Bel―… I Mean … er … #Priorities and #WhatTheyVotedFor

The setup, present-day:

"Portland: It's FO time. Buckle up."

On October 3, Assistant Attorney General Harmeet Dhillon, head of the Justice Department's Civil Rights Division, vowed to avenge a right-wing activist who'd been arrested there the night before. She accused police of discriminating against him based on his "conservative" viewpoint.

But last week Judge Michael Simon called her out for her "threat and attempted intimidation" of officials in Portland, Oregon, refusing to allow his court to be used as a vehicle to punish a blue state for daring to stare down the Trump administration.

The case highlights the abject disintegration of the Justice Department under the leadership of internet-poisoned ideologues who think Elon Musk's house of horrors is real life. And yet being terminally online is their Achilles heel, constantly undermining their quest to weaponize government against their so-called enemies.

(Dye↱)​

So, here's the hook, ca. 2020:

Wow. In light of more recent events, that post--which was made in late January--is somehow even more preposterous today:

Okay, so, what does that mean, from January to September, 2020? One of our neighbors had recited↗ some right-wing make-believe, and I responded↗, and Parmalee↗ responded↗, and some months later it happened to occur to mind↗ according to a question of agendas. And so it goes.

But that response I posted observed, of the rightist propaganda:

… stories like yours are not uncommon, but then the evidence emerges. Here's an example: A story broke last year [2019] about antifa attacking people in NYC for no reason. It got some coverage, again, later, when the assailants in the incident were charged and convicted; it wasn't antifa, but Proud Boys.

This was pretty much a recurring phenomenon in Portland, Oregon, last year, such as stories about antifa chasing and attacking a man and his twelve year-old daughter, but it turned out to be people fending off right-wingers, namely a known provocateur named John Turano and his adult daughter Bianca, who rightists have repeatedly claimed is a young girl victimized by antifa. And it really is that stupid: Provocateur and his adult daughter pick a fight, people film them running away, say antifa is attacking a little girl; you'll find there just isn't much of a both-sides issue between rightists and antifa ....

.... There were even rumors that the cops were helping antifa, and what the evidence revealed was that the Portland Police Bureau was in deep, aiding and abetting rightists.

(boldface accent added)​

And that last really is its own sort of hook.

Because the punch, for us, comes sixteen paragraphs into Dye's article for Public Notice:

Dhillon's "FO" post was a retweet of Sortor boasting that Attorney General Bondi had personally called him to guarantee that "The Trump DOJ WILL NOT allow Portland Police to continue to do the bidding of Antifa."

The suggestion that cops in Portland are taking instruction from antifa is beyond ridiculous. For years protesters have complained about police brutality and PPB's refusal to block marauding gangs of Proud Boys rampaging in the streets.

Nonetheless, just three hours later, Dhillon posted a letter she'd sent to officials in Portland demanding details of [Nick] Sortor's arrest and accusing PPB of viewpoint discrimination in violation of the 2014 settlement agreement.

"Portland: Signed, sealed, delivered!" she tweeted.

(boldface accent added)​

So, yeah, update, still happening. It does come up, from time to time. See October, 2025↗ for example.

But even before then, ca. 2024↗, there was occasion to remind that as conservatives have gotten louder and more focused in the time since, questions of racism, sexism, and crazy conspiracism are harder to avoid. It was easy enough to suggest that, vis à vis Trump, these elements that sound like supremacism and conspiracism were what they had left, but it's what, seven years later and they're literally still stuck on the Portlantifa story.

And, yes, presposterousness is in the dictionary. But compared to the preposterousness of it all, we can only wonder how preposterously embarrassed some people must be. You know, not the rightists who ought to have known better than to tell those stories, but the middle-roaders who, y'know, someone tells them one thing, and someone else says something else and it's hard to know who to believe, or whatever, yeah, those people should pray that atheists are correct.
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Notes:

Dye, Liz. "Harmeet Dhillon demonstrates danger of posting through it". Public Notice. 29 July 2026. PublicNotice.co. 29 July 2026. https://www.publicnotice.co/p/harmeet-dhillon-portland

 

[Tiassa]

How It's Going

U.S. Attorney for D.C. Jeanine Pirro has asked to dismiss charges against David Hearn↱, and the Court has granted that dismissal without prejudice.

Wheeler↱ explains:

Jeanine Pirro has filed a 20-page motion to dismiss the indictment against Davey Hearn, on the basis of being utterly helpless to know that the pool was badly damaged weeks before Hearn came along.

Much of it aims to blame everything on the Park Police and Doug Burgum ....

.... Prosecutors were helpless, you see, to learn about the significant fuck-ups with the pool before Hearn came along.

But even as DOJ attempts to blame DOI for DOJ's own failures, they engage in Olympic class voice passing — though in one case they forgot to delete the active voice that had been replaced [wink] with the passive voice.​

That last isn't some snark, but, rather, a reminder of Pirro's outlook. While the brief is submitted by Pirro, the signing AUSA is Michael P. Spence. Inasmuch as he probably repaired some of Pirro's syntax, the point Wheeler notes, "Indeed, prosecutors specifically involved in the cases related to the Reflecting Pool made dozens and dozens of communications were made in an effort to identify and obtain the materials necessary to have all information to evaluate the case", reflects an omission we can easily sympathize with, also comes as part of DoJ's effort to blame the Department of the Interior, summarized (p.18):

Based upon USAO-DC's review of the record in light of the materials only recently disclosed by DOI, the government moves to dismiss the indictment without prejudice.

DOI provided less than fulsome information at the outset of this case. However, the information subsequently demanded by USAO disclosed by DOI—which was not known to the prosecutors or the grand jury before the return of the indictment—strongly suggest that a rushed and botched installation by AIC, the primary contractor, led to the damage to the lining of the Reflecting Pool. It was not until USAO-DC repeatedly reached out to DOI dozens and dozens of times that DOI slowly started trickling information to USAO-DC. Had DOI been forthcoming with the information clearly in its possession, the government would not have sought a grand jury indictment. Furthermore, prosecutors have an affirmative obligation … to produce information to the defense. DOI's failure to fully and accurately provide information to USAO-DC undermined the government's ability to abide by these responsibilities.​

There is actually a lot to the excuse-making, but, after setting aside the American treatment of the word "fulsome", note in particular DoJ's argument that, "Had DOI been forthcoming with the information clearly in its possession, the government would not have sought a grand jury indictment"; that is a problematic statement suggesting dereliction as plausible denial. Consider the explanation that a "rush to complete the project led to hasty and botched work that was not remediated before the project was finished and the fencing removed". Similarly, consider that a rush to indict led to hasty and botched work that was not remediated before seeking indictment. What DoJ is saying is that even though DoI hadn't gotten back to them about issues affecting the case, they went ahead anyway. Had DoI been forthcoming, perhaps, but DoJ could have afforded to wait.

Hearn was indicted two weeks after he was arrested; DoJ could have waited until DoI sorted through their evidence. Dozens and dozens of calls over how many days? Consider that it wasn't for more than two weeks after Hearn was indicted that a "defense expert inspected the now-drained pool", and "Pirro and senior USAO-DC employees oncee again visited the site and this time immediately noted extensive damage throughout the now-drained pool". This was, per DoJ, when "USAO-DC first became aware of the significant damage throughout the pool and accordingly requested all documents from DOI concerning the how the pool was lined and all records regarding the installation ofthe lining".

More directly, it was two weeks after the indictment that USAO-DC "accordingly;y requested all documents from DoI concerning how the pool was lined and all records of the installation of the lining". That is, two weeks after indictment, DoJ got around to some of the due diligence the should have attended before seeking indictment. At some point, DoI sent the material, "which took days to review", and pay attention to the language Pirro and Spence use: "This was the first time DoI made USAO-DC aware of such information."

What they don't say is that it was the first time they ever heard of such a thing.

Consider the idea of reviewing the evidence and arriving at a diagnosis without once ever considering the differential that pretty much everybody else is already aware of.

Dereliction as plausible denial: The plausible denial for DoJ includes failure of due diligence, but also seems to embody a context of incuriosity that nobody ever really knows how to countenance because it is so cynical and strange.

To the other, this Justice Department, Your Honor? It's one thing if two weeks isn't enough time to build a supportable case, but it is also ought to be a hard thing to believe these AUSAs and investigators are so unaware and incurious.

So, it's not just that they could have waited; quite clearly, they should have. And you can believe someone qualified to be a U.S. Attorney could be so ignorant and incapable, if you want, but also take note that the alternative is that they knew they were doing wrong.

And let's face it, independent of any question of the Trump administration, I thought the cops were supposed to be better than this. Okay, no, not really, we kind of know they're this shitty, but it's also true we're supposed to pretend otherwise.

But even for gangsters, that's a pretty low bar.
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Notes:

Pirro, Jeanine and Michael P. Spence. "Government's Motion to Dismiss the Indictment". United States of America v. David Hearn. Superior Court of the District of Columbia Criminal Division―Felony Branch. 31 July 2026. s3.DocumentCloud.org. August 2026. https://s3.documentcloud.org/documents/28528042/260731-hearn.pdf

Wheeler, Marcy. "Jeanine Pirro's Epic Study in Passive Voice". Emptywheel. 31 July 2026. Emptywheel.net. 1 August 2026. https://emptywheel.net/2026/07/31/jeanine-pirros-epic-study-in-passive-voice/

 

[Tiassa]

Democracy Survives the Day

Judge Talwani↱ with the save:

On March 31, 2026, President Trump issued Executive Order 14399: "Ensuring Citizenship Verification and Integrity in Federal Elections" (the "EO"), ordering, inter alia, the United States Postal Service ("USPS") to refuse to transmit mail-ballots either not compliant with new design and technology requirements and/or to individuals whose names do not appear on lists provided to the USPS. 91 Fed. Reg. 17125 (Mar. 31, 2026). Much litigation has ensued in response to this unprecedented directive. Throughout the multiple actions before district courts, courts of appeal, and the Supreme Court of the United States, the federal government has declined to defend the constitutionality of the EO's directives. Instead, the federal government has asked this court and others to postpone judicial review on standing and ripeness grounds, arguing that no party may challenge the EO's constitutionality until the USPS promulgates a Final Rule.

As discussed in its prior decisions and expanded upon below, the court finds it prudent to review the EO now, where less than 90 days pend before the midterms and the millions of citizens who rely on mail voting require clarity as to how or whether they will vote in November. As to those elections occurring before or on November 3, 2026, the court preserves the current electoral status quo, GRANTS the Plaintiffs' Renewed Motion for a Preliminary Injunction [Doc. No. 170], and ENJOINS the USPS's implementation of Section 3 of the EO.​

There is a saying: All politics is local.

Anyway, yeah, this time around our ballots came with warning advice about USPS. That never happened before because it was never necessary.
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Notes:

Talwani, Indira. "Memorandum & Order". League fo Women Voters of Massachusetts, et al. v. Trump and Missouri, et al. United States District Court District of Massachusetts. 11 August 2026. assets.bwbx.io. 11 August 2026. https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rH78UU4qxcZg/v0

https://twitter.com/x/status/2087304543478424058