Abbe Lowell Archives

Posts

DOJ Continues to Let DHS Pick and Choose Screen Shots Pertaining to Their Assaults

January 15, 2026/27 Comments/in David Huerta prosecution, emptywheel, Surveillance, Weaponized DOJ /by emptywheel

There’s a general reason and specific reasons why people should care about Bill Essayli’s response to David Huerta’s motion to compel the government to turn over metadata associated with the evidence obtained against him.

Generally, DHS has permitted — encouraged, seemingly — DHS officers to use their own personal phones and to use Signal. And whether officers are using their own or government phones, DHS ditched its archiving software last year; it is relying on officers’ taking screen caps of relevant communications.

The Department of Homeland Security has stopped using software that automatically captured text messages and saved trails of communication between officials, according to sworn court statements filed this week.

Instead, the agency began in April to require officials to manually take screenshots of their messages to comply with federal records laws, citing cybersecurity concerns with the autosave software.

[snip]

The policy expects officials to first take screenshots of the text messages on their work phones, send it to their work email, download it on their work computers and then run a program that would recognize the text to store it in searchable formats, according to the department’s guidance submitted to the court.

Under the Federal Records Act, government agencies are required to preserve all documentation that officials and federal workers produce while executing their duties. They have to make federal records available to the public under the Freedom of Information Act unless they fall under certain exemptions.

And we’ve seen AUSAs rely on officers themselves to review their own devices for communications covered by discovery.

In the LaMonica McIver case, for example, officers didn’t turn over exculpatory texts until Judge Jamel Semper ordered supplemental discovery.

It wasn’t until November 26 — almost two weeks after Judge Jamel Semper ruled on McIver’s immunity bid — that DOJ turned over texts copying this video, observing that it looked bad.

5 The Spotlight News video came to light during the course of supplemental briefing only because it was referenced in a May 9, 2025, text message that the government finally turned over on November 26, 2025. HSI special agents exchanged the video in that May 9 conversation, where the agents also acknowledged that the evidence in the video was “bad.” Ex. Y at 2-3. The prosecution team therefore clearly knew about the text messages (and thus the video) when disclosures were due in July.

McIver’s lawyer, Paul Fishman, says he will address this delayed discovery in a follow-up letter.

Inexplicable delays in the government’s discovery productions mean that the record continues to be developed.1

1 Congresswoman McIver will detail these shortcomings in a forthcoming letter to the Court.

But the implication of this is clear.

DOJ was never going to turn over these discussions — conducted on Signal — until Judge Semper ordered this supplemental briefing. They were sitting on evidence that shows that before DHS first started calling McIver’s actions an assault on May 10 (McIver had to ask to have these Tweets taken down, but the timeline is in her motion to do so), they had shared video noting that their own actions looked bad.

Consider how this policy would work in the case of Jonathan Ross’ killing of Renee Good. Given that Ross’ video of the killing was released unofficially, it seems likely he was using his own phone that day. Particularly given the impunity with which Pam Bondi has treated him so far, there’s no reason to believe he’d retain anything incriminating himself, much less people like Greg Bovino or Stephen Miller.

It would take someone actually seizing his phone to see if there are incriminating details about his own motives.

That’s what David Huerta is asking for: that DOJ provide the metadata associated with both the videos and texts messages surrounding the day.

The metadata Mr. Huerta requests here—for the agents’ text messages already produced in this case,10 and for the photos and videos taken of the scene on June 6 and already produced—is critical and material to his ability to adequately prepare for his defense in this case. It is also relevant to understanding the sequence of events that occurred on June 6, both the actions of protestors and Mr. Huerta at the scene (e.g., shown in photographs and video recordings) and the agents’ statements to one another and activities that day as reflected in the text messages. Lastly, the metadata information affiliated with iPhone photos and messages is routinely stored in the ordinary course for such ESI, and would be straightforward to extract from the agents’ cellphones or devices. Moreover, producing the photos and videos in a native, load-ready format along with a corresponding index is routinely done in criminal cases by the Department of Justice.

10 Because the agents’ text messages and the photos and videos have already been collected by the government in this case and produced to the defense, there can be no dispute about the government’s “possession, custody, or control” of that material and/or those devices, as the government already had, and likely continues to have, access to them in preparing their discovery productions.

Even if these witnesses — HSI Supervisory Agent Ryan Ribner and Undercover Officer Jeremy Crossen — were reliable, this would be a reasonable ask. While the bulk of the video in discovery is unavailable publicly, the texts are difficult to unpack, and because Ribner “wrote the arrest report … from memory,” there are time discrepancies between the narrative he tells in the arrest report and the texts, to say nothing of additional discrepancies in Crossen’s countersurveillance report.

But these witnesses are not reliable. Crossen, for example, told interviewers that he was using his personal phone because his government phone “was not working at the time of the incident.”

TFO Crossen stated he used his personal phone to document the events which was turned over to an HSI Computer Forensics Agent (CFA) to download and preserve evidence.

TFO Crossen stated his government issued phone was not working at the time of the incident.

Except his texts show he switched phones during the incident (his testimony is so inconsistent I actually misunderstood whose phone this was on first read).

Plus, he told Ribner had had a couple hundred videos. The discovery includes far short of that.

And that’s just one reason to question Crossen’s candor when he told investigators, “he did not alter or delete any videos.” There are other holes in what appears in exhibits (this may be available in videos): he told investigators that somebody — I think he means protestors — called out “he’s a union member,” about Huerta, which is … not how I’d expect people in left-leaning politics to describe a senior SEIU official. The specific description of Huerta would go to the denials of everyone involved that they assaulted Huerta because he is a senior union official.

And Crossen described not filming the most important footage for this case, purportedly showing Huerta standing right in front of the van, rather than to its side, where the DHS goons assaulted him.

TFO Crossen recalled that immediately before 0:10 seconds before starting video 2790, he observed HUERTA standing in front of the van, closer to the center of the van. He stated that he did not film that particular moment because there were a lot of distractions “from persistent instigators” including HUERTA.

And that’s why Essayli’s argument — that DOJ can provide Electronically Stored Information in whatever format they want so long as it maintains the data integrity — falls short.

In relevant part, the ESI protocol recommends that (1) after conferral, any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, and reasonably limit costs, and, if possible, conform to industry standards for the format;

Crossen’s testimony, along with problems in the testimony of others, raises more than enough reason to question the integrity of the data as provided. A Cellebrite extraction, which is what Huerta is asking for, would show whether there were gaps in production.

Essayli is also citing in poor faith to misrepresent Huerta’s argument (and in his motion to dismiss, switched between PDF and document page numbers, further obscuring his references). He repeatedly claims Huerta just wants DOJ to create a searchable index.

To the extent defendant is requesting the government create an index of the metadata in a searchable format, see Dkt. 58 at 3:1-5, that request is beyond the government’s discovery obligations.

[snip]

Instead, defendant’s true complaint is that the government has not created a searchable index of the photos’ and videos’ metadata. (Dkt. 58 at 3.)

But the cited passage (this is on document page 2) reveals they’re asking for far more than that.

The screenshot PDF images of the messages do not contain any metadata affiliated with the messages or the source iPhones, and no corresponding index was provided to defense counsel with this information. Notably, the phone numbers belonging to the sender(s) and recipient(s) of the messages, or even the iPhone contact cards, were not included in the production or visible in the screenshots. Nor do the iMessage screenshots contain a timestamp for each message; while some messages do have a timestamp at the top (sometimes owing to a gap in time), many of the messages contain no timestamp whatsoever.6 Additionally, because of the nature of the initial production (individual PDFs named only by “IMG” file number), there is no way in which to tell who the owner and custodian (e.g., which agent) is of each set of messages and each phone. Additionally, due to the screenshot nature of the messages, certain messages are cut off and the messages were not all provided in chronological order to Mr. Huerta. Finally, the iMessage screenshots do not contain any geolocation or coordinate information, if any is available, as is often part of cellphone metadata or any “native” file.

There are a whole bunch of reasons this is necessary to reconstruct what happened.

But in DHS’ new parallel evidentiary role, it’s not clear whether Huerta — or any of the other people accused of assault using evidence from officers’ personal cell phones — will have access to that.

Chekhov’s Back Door Gate Appears in the David Huerta Assault Saga

January 14, 2026/7 Comments/in David Huerta prosecution, emptywheel, Immigration, Weaponized DOJ /by emptywheel

F[ucking] A[sshole] Bill Essayli submitted his response to David Huerta’s motion to dismiss his information (see this post for an explanation of why I’m calling Essayli, “F[ucking] A[sshole]”).

Here’s a summary of the argument: Huerta intentionally blocked the only available entrance of the search (but not arrest) location, he did this via means other than standing in front of a van, and encouraged others to do so, which led (after Ryan Ribner assaulted Huerta) LAPD to declare a riot.

During the execution of a search warrant, defendant intentionally blocked the only available entrance of the Warrant Location. He did this by sitting down and walking in circles directly in front of the entrance of the Warrant Location, making it impossible for any law enforcement vehicles to enter or exit, without defendant moving. In addition, he also successfully encouraged other individuals to join him in blocking the entrance of the Warrant Location in the same manner eventually contributing to LAPD declaring a riot at the Warrant Location. As defendant concedes in the Motion, defendant was told explicitly he “shouldn’t block or impede the [law enforcement vehicle] that would be arriving.” (Dkt. 55 at 14.)

Even this passage conflates two things Huerta did — sit, and picket, before the van showed up — with blocking it.

But the most interesting part of the passage is that word “available,” which is doing a lot of work. Along with the filing, DOJ submitted seven exhibits: three compilations of video (filed manually, so we don’t get them), and the interview reports from HSI Special Agent J Smith (who seems to have overseen the search), a second interview with the van driver, Brian Gonzalez, an interview with HSI Special Agent Andre Lemon, who helped Gonzalez change a tire, and a picture of the tire that got slashed while or shortly after Huerta was being assaulted. These late interviews appear to be an attempt to salvage the case with witnesses besides Ryan Ribner and Carey Crook, the guys who assaulted Huerta. DOJ is spinning a new story that because of what happened with Huerta — that is, because Ribner, especially, assaulted the SEIU CA President — HSI had to flee the site of the search hours earlier than they otherwise would have, which limited the number of undocumented workers they could detain, which wasn’t supposed to be the point of the search.

As Lemon described, they fled out a back gate.

SA Lamon stated they loaded the vehicle with “Some of the detainees and snuck out of the back gate”.

You see, from the moment I read this line in Ribner’s affidavit supporting the arrest warrant, I was pretty sure there was another gate ready to open, just like Chekov’s gun, a plot point that must be resolved.

Our trusty cyber expert also suggests that the van entering the gate of the facility — the predicate for making Huerta move and therefore the predicate to tackling him, injuring him, and then arresting him — may not, after all, be the only entrance. He describes that “as far as I was aware,” it was.

As far as I was aware, this gate was the only location through which vehicles could enter or exit the premises.

I wonder whether his awareness has changed over the weekend.

Ribner said a bit more about Chekov’s gate in the arrest report (and also revealed that he left in a caravan via “the secondary gate,” which he did not otherwise explain).

ERO SDDO C C approached SSA Ribner to discuss a plan to safely escort an ERO USG vehicle into the facility. SSA Ribner provided the same information to SDDO C as he did to the DEA agents regarding subjects potentially impeding/blocking agents and USG vehicles. SDDO Cr asked if there was another entrance/exit to the facility; SSA Ribner related that he did not have knowledge of a secondary entrance/exit. SSA Ribner related that agents would need to go outside of the gate and encircle the sides of the van to make sure it isn’t blocked and/or damaged. SDDO C asked how agents would move the pickup truck [playing loud music] from the driveway. SSA Ribner advised that he would verbally request the driver to move the truck. [my emphasis]

DOJ didn’t bother to ask Crook whether he knew of a second gate last August, as it became clear neither his nor Ribner’s testimony was credible. But his interview report describes that Crook, “recalled himself and GS Ribner coming up with a plan for the main gate to slightly open to allow the van to enter the property and then close it after the van entered,” just before he made a claim — that Huerta had “straddle[d] the hood of the van” and “ma[de] his body an X,” a claim no other witnesses nor the video corroborated.

The “main gate.”

You only call something a main gate if you know there’s another.

Brian Gonzalez — the guy who drove the van and all of a sudden remembered David Huerta being close to it after he got a permanent job at CBP and had a follow-up call, probably the guy DOJ hopes will be their star witness given problems with calling Ribner or Crook to the stand –was not asked about any gates in his first interview (or the follow-up, where his memory about Huerta evolved).

But in his interview last week, he was asked about the gate.

Before I explain what he said, note that the F[ucking] A[sshole] Bill Essayli confessed in his response that earlier — right up until the moment David Huerta arrived, Essayli seems to suggest — DHS had no problem getting cars and vans through the entrance where protestors were.

Shortly thereafter, between 10:30 a.m. and 11:45 a.m. demonstrators began to show up at the Warrant Location and congregated near the entrance to the front gate. During this initial period, before defendant arrived, the demonstrators did not block the driveway and repeatedly allowed vehicles to enter and exit the Warrant Location through the front gate. (Ex. 1 at 7:30-7:35; 8:16-8:27; Ex. 2 at 4:25-5:25, 7:49-7:53, 8:22-8:26, 9:45-9:48, 11:47-11:58.)

There was a white van captured in one of Jeremy Crossen’s photos, showing a time stamp of 11:10 (it’s possible the van in one or both of these pictures is the one driven by Gonazalez; per Google his drop-off at the Federal Building was a 9-minute drive away).

Crossen’s countersurveillance report describes what may be this van — at around that time, a van and a beige car were able to pass through the gate because someone asked nicely for the protestors to move and they complied.

At approximately 11:25 a.m., The southwest gate of the business opened, and a beige Toyota sedan and a white ICE ERO transport van approached the south apron of the driveway. As the gate opened, UHM-1 ran from where he was standing, just east of the apron. UHM-1 initially stood center driveway of the apron, blocking the egress of the car and van while filming. An unidentified agent standing just north of the gate ordered UHM-1 to move and he subsequently complied.

Half an hour later, per Crossen’s report, a mini-convoy came up at a time when Huerta was legitimately in front of the gate, if we can believe any of these reports (we can’t).

At approximately 11:54 a.m., A black Government Jeep Grand Cherokee, along with several other government vehicles, approached the apron of the driveway from E. 15 Street. The vehicle th remained stopped as both the gate was closed and standing protesters were blocking the apron of the driveway, preventing the vehicle from pulling closer to the south gate for entry into the business. At this time, TFO Crossen observed HUERTA, LENEHAN, UHF-8 and UHM-7 sit down on the ground, approximately two to four feet from the closed gate. TFO Crossen both audibly heard and video recording HUERTA motioning with his left hand with an “enviting motion” to the crowd around him, yelling “Sit down! Sit Down!” repeatedly. HSI Supervisory Special Agent (SSA) Ryan Ribner approached the closed gate from the other side and informed the seated protesters they were impeding the vehicles and needed to move. Upon hearing this, HUERTA, while still seated, “scooted” forward, where he was now seated on his knees, right against the gate. HUERTA ignored SSA Ribner’s orders to move because they were impeding law enforcement vehicles attempting to enter the business. HUERTA yelled to SSA Ribner, “What are you doing! What are you doing! I can’t hear you through your fucking mask! How are you keeping me safe by doing this!” SSA Ribner, calmly again admonished HUERTA that he was impeding law enforcement vehicles from entering.

Those vehicles do not appear in Ribner’s report, as far as I can tell, at all.

There’s no resolution to what happened to those vehicles, though. They disappear from the narrative by the time the van driven by Gonzalez shows up, which is when seven people move to block the van, and oh by the way, so does David Huerta, added as an afterthought in Crossen’s report.

At approximately 12:15 p.m., a white Law enforcement van pulls up to the apron of the driveway, just south of the main south gate with its siren and emergency lights activated. As the vehicle pulled up, agents opened the south gate, and several agents walked from inside the property compound to the apron of the driveway to assist with moving protestors so the emergency vehicle could gain entrance. As most of the crowd moved for the loud audible siren and emergency police lights, LENEHAN, GARDUNO, CUERVO, ALTAMIRANO, UHM-7, and an unidentified Hispanic female, later identified as Edith DIAZ (DOB: /1977; COC UNK) and UHM-8, who was now out of his unoccupied vehicle, which was playing loud music and blocking the apron, ran closer to and in front of the law enforcement vehicle to block it.. HUERTA also moved toward the emergency van with activated lights and siren and stood approximately two feet from the front bumper, directly in front of it, ignoring the emergency lights, activated siren and ignoring agents orders to move.

With all that in mind — with the way that Ribner stages confrontation over the expected appearance of Gonzalez’ van — here’s what Gonzalez said in his interview last week:

Gonzalez stated that he called Enforcement and Removal Operations (ERO), Supervisory Detention and Deportation Officer (SDDO) Carey Crook when he was about a block away from the location.

Gonzalez stated that he drove past the crowd at the front gate and asked SDDO Crook if he could come through the back.

Gonzalez stated that SDDO Crook informed him that the back gate was locked and they didn’t have the keys to the lock.

At noon, when Ribner was staging a confrontation with the people he believed were “vicious, horrible people,” he didn’t know there was a second gate.

But somehow Gonzalez, who found out just that morning he’d be doing this drive and had already done one pick-up that day, knew there was one. Not only Gonzalez knew of it. But Crook — whom Ribner claims asked him, Ribner, if there were a second gate — not only knew of one, but knew it was locked.

When they needed to get by protestors before Ribner had assaulted David Huerta, they asked nicely and everyone complied.

When they needed to get by protestors after Ribner had assaulted David Huerta, they knew exactly how to do that: go out the back door gate, which it turns out they had keys to.

Update: On Thursday, Huerta asked to delay the trial until May. I suspect this reflects a bid by DOJ to implicate Huerta — possibly even to supersede him with a felony — for the punctured tire.

b. Defendant contends that the omnibus opposition and the recent discovery productions of the government raise issues that warrant additional investigation and the need for additional pretrial filings. Moreover, defendant anticipates making additional discovery requests based on and in response to the recent productions of by the government that raise new trial issues.

c. In light of the foregoing, counsel for defendant also represents that additional time is necessary to confer with defendant, conduct and complete an independent investigation of the case, conduct and complete additional legal research including for potential pre-trial motions, review the discovery and potential evidence in the case, and prepare for trial in the event that a pretrial resolution does not occur. Defense counsel represents that failure to grant the continuance would deny them reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

Timeline

June 6: Arrest

9:00 AM: HSI task force officer (and Inglewood cop) Jeremy Crossen arrives under cover

9:20: Agents start executing search

9:57: Crossen interacts with Asian woman

10:26: Crossen interacts w/Hispanic protestor, claims he is monitoring the police

10:33: Crossen texts Ribner

11:07: Crossen sees pick-up without plates whose Hispanic driver films

11:19: Crossen describes a Hispanic woman with a neck gaiter; his report provides background on a Kids of Immigrants sweatshirt she wears; start time of alleged criminal conduct

11:25: A sedan enters the gate; after an agent instructs those filming it to step away, they do; Crossen texts Ribner,

11:31: A Hispanic woman whom Crossen IDs by name shows up, makes phone calls

11:36: Crossen describes a white woman by name, describes that she masked as the crowd grew

11:37: Crossen describes the Hispanic leader of ACCE Action, Council Member Jose Delgado, show up, make calls

11:49: Crossen claims he sees Huerta walk up

11:51: A white woman from Tenants Union starts yelling obscenities

11:53: Ribner instructs Crossen to focus on Huerta

11:54: Huerta and others sit in front of the gate

12:01 PM: Ribner leaves the property and assaults Huerta [note his report timeline goes haywire in here]

12:00-12:09: Crossen texts Ribner

12:15: Crossen claims van arrives (his description describe others who were in front of the van, then says Huerta also was)

12:15: Ribner calls 911 (claiming this is about pepper spray)

12:18: Crossen describes a scrimmage line

12:20-12:40: Discussions about Huerta’s attempt to call his attorney

12:30: LAFD responds; Huerta asks to be brought to the hospital; Crossen describes LAFD arrival this way:

At approximately 12:28 p.m., TFO Crossen observed a Los Angeles City Fire truck with activated emergency lights and loud audible siren, attempting to gain entry to the business, still being blocked by protestors, to render aid for HUERTA, inside the business, who had been exposed to OC Spray, during his arrest.

12:40: Ribner reports arrest to CACD US Attorney office

12:42: Ribner tells Crossen his personal phone is out of battery, asks him to use his government one

12:47: Ribner admits he used pepper spray

1:05: Ribner speaks to USAO again

1:30: Huerta taken to hospital w/agent in car

2:45: Ribner asks Crossen for pictures of Huerta

Unmarked time: Mayor Bass shows up to hospital room; they ask her to leave (and she does)

9:12: Crossen sends last clip from videos to Ribner (the discovery turned over provides nowhere near the “4 hours” or “100 videos” that Crossen told Ribner, five hours earlier, that he had taken (though the defense did not include all the texts in their exhibit)

9:36: Ribner obtains warrant for Huerta’s phone

10:30: Huerta attorney turns over the phone

June 8: Huerta charged with felony conspiracy

June 9: Case opened

June 17: Date created for one photo provided in discovery

June 19: Initial incident report; Ribner would later (in his September 10 interview) admit he wrote the report from memory and simply did not “recall that he told HUERTA, ‘You are not impeding’. He does not know why he did not include that statement in his report and agrees that his statement could sound exculpatory.”

June 23: Countersurveillance report from Crossen

July 2: Second set of discovery

July 17: Third set of discovery

July 28: Fourth set of discovery (including agent texts)

August 20: USAO interviews Brian Gonzalez, who drove the van allegedly blocked

August 27: USAO interviews Carey Crook; he told AUSAs that, contrary to Ribner’s claim, Huerta did not assault him

August 27: USAO interviews Crossen

September 9: USAO reinterviews Gonzalez; he says he does not remember Huerta straddling the van, as Crooks claimed

September 10: USAO interviews Ribner

September 11: Gonzalez starts at a new job at CBP

September 17: Later case opening date, possibly focusing on the lying agents

October 17: Huerta charged with misdemeanor

November 5: Huerta’s attorneys ask AUSA to identify the obstructive conduct

December 19: AUSA finally provides vague description of conduct

January 2: Interview of HSI Special Agent J Smith

January 9: Second interview with Brian Gonzalez

January 9: Interview with HSI Agent Andre Lemon

The Most Complex Friday Night News Dump, Ever?

December 20, 2025/47 Comments/in 2016 Presidential Election, 2024 Presidential Election, emptywheel, Epstein, Immigration, Jim Comey prosecution, Letitia James Investigation, Weaponized DOJ /by emptywheel

President Trump arrived late to a healthcare announcement yesterday and didn’t take any questions.

Starting around the same time, DOJ launched some of the most complexly executed Friday Night News dumps going.

Epstein Limited Hangout

The big attraction was the release of the first batch of the Epstein files. The limited release violates the law, which required all files to be released yesterday.

Instead, there were a whole bunch of Bill Clinton photos, the document reflecting Maria Farmer’s complaint from 1996, that went ignored for years, and redacted grand jury transcripts that clearly violate the law. [Update: They have now released the SDNY ones.] The government did not release the proposed indictment and prosecution memo for the indictment that should have been filed in 2007; that may be sealed as deliberative.

Todd Blanche’s wildly dishonest letter (particularly with regards to his claimed concern for victims, after being admonished repeatedly by judges for failing to take that responsibility seriously and a last minute bid that promised but failed to put Pam Bondi on the phone) explaining the release emphasizes how Bondi took over a hundred national security attorneys off their job hunting hackers and spies to conduct a second review; it does not mention the even bigger review the FBI accomplished in March.

The review team consisted of more than 200 Department attorneys working to determine whether materials were responsive under the Act and. if so, whether redactions or withholding was required, The review had multiple levels. First, 187 attorneys from the Department’sNational Security Division (NSD) conducted a review of all items produced to JMD for responsiveness and any redactions under the Act. Second, a quality-control team of 25 attorneys conducted a second-level review to ensure that victim personally identifying information wasproperly redacted and that materials that should not be redacted were not marked for redaction.The second-level review team consisted of attorneys from the Department’s Office of Privacy and Civil Liberties (OPCL) and Office of Information Policy (OIP)—these attorneys are experts in privacy rights and reviewing large volumes of discovery. After the second-level review team completed its quality review, responsive materials were uploaded onto the website for public production as required under the Act. See Sec. 2(a). Finally, Assistant United States Attorneys from the Southern District of New York reviewed the responsive materials to confirm appropriate redactions so that the United States Attorney for the Southern District of New York could certify that victim identifying information was appropriately protected.

That John Eisenberg’s department was in charge of a second pass on these documents is of some interest; there’s no specific competence Nat Sec attorneys would have, but Eisenberg has helped Trump cover stuff up in the past, most notably the transcript of his perfect phone call with Volodymyr Zelenskyy.

Thus far the limited hangout has shifted the focus onto Clinton and away from Trump, but as Kyle Cheney lays out, it risks creating a WikiLeaks effect, in which a focus remains on Epstein for weeks or even months.

Deputy Attorney General Todd Blanche confirmed Friday that the documents would be released on a rolling basis through the holidays — and possibly beyond. And, in court papers filed shortly after Friday’s partial release, the Justice Department emphasized that more files are still undergoing a review and redaction process to protect victims and new Trump-ordered investigations before they can be released.

The daily drip is a remarkable result for President Donald Trump, who has urged his allies to move past the Epstein files — prompting jeers from Democrats who say he’s trying to conceal details about his own longtime relationship with Epstein. Trump has maintained for years that he and Epstein had a falling out years ago, and no evidence has suggested that Trump took part in Epstein’s trafficking operation. Trump advocated for the release of the files only after Republicans in Congress rebuffed his initial pleas to keep them concealed.

[snip]

Trump is no stranger to the political power of intermittent disclosures of derogatory information. In 2016, Trump led the charge to capitalize on the hack-and-leak operation that led to daily publications of the campaign emails of Hillary Clinton and her top allies. The steady drumbeat of embarrassing releases — amplified by Trump and a ravenous press corps — helped sink Clinton’s campaign in its final weeks.

And that’s before the political and legal response to this limited hangout. Some victims are already expressing disappointment — most notably, by the redaction of grand jury material and names they know they shared, as well as the draft indictment from Florida.

Tom Massie and Ro Khanna, while originally giving DOJ the benefit of the doubt, are now contemplating measures they can take — potentially including contempt or impeachment — to enforce this law.

After Fox News was the first to report that the names of some politically exposed persons would be redacted, DOJ’s favorite transcriptionist Brooke Singman told a different story.

And Administration officials are getting burned by Elon’s fascism machine for their dishonesty.

Once again, Trump’s top flunkies may be overestimating their ability to contain their scandal.

Todd Blanche behind the selective prosecution

Meanwhile, efforts by those same flunkies to punish Kilmar Abrego continue to impose costs.

There have been parallel proceedings with Abrego in the last month. Just over a week ago in his immigration docket, Judge Paula Xinis ordered Kilmar Abrego to be released from ICE custody for the first time since March, and then issued another order enjoining DHS from taking him back into custody at a check-in the next day. Effectively, Xinis found the government had been playing games for months, making claims they had plans to ship Abrego to one or another African country instead of Costa Rica, which had agreed to take him. Those games were, in effect, admission they had no order of removal for him, and so could no longer detain him.

[B]ecause Respondents have no statutory authority to remove Abrego Garcia to a third country absent a removal order, his removal cannot be considered reasonably foreseeable, imminent, or consistent with due process. Although Respondents may eventually get it right, they have not as of today. Thus, Abrego Garcia’s detention for the stated purpose of third country removal cannot continue.

But even as that great drama was happening, something potentially more dramatic was transpiring in Abrego’s criminal docket.

Back on December 4, Judge Waverly Crenshaw, who had been receiving, ex parte, potential evidence he ordered the government turn over in response to Abrego’s vindictive prosecution claim, canceled a hearing and kicked off a fight over disclosures with DOJ. Four days later he had a hearing with the government as part of their bid for partial reconsideration, but then provided a limited set of exhibits to Kilmar’s attorneys.

Then yesterday, in addition to a request that Judge Crenshaw gag Greg Bovino — who keeps lying about Abrego — Abrego’s team submitted filings in support of the bid to dismiss the indictment. One discloses that Todd Blanche’s office was pushed by people within Blanche’s office, including Aakash Singh, who is centrally involved in Blanche’s other abuse of DOJ resources, including by targeting George Soros.

Months ago now, this Court recognized that Deputy Attorney General Todd Blanche’s “remarkable” admission that this case was brought because “a judge in Maryland…questioned” the government’s decision to deport Mr. Abrego and “accus[ed] us of doing something wrong”1 may “come close to establishing actual vindictiveness.” (Dkt. 138 at 7-8). The only thing the Court found missing from the record was evidence “tying [Mr. Blanche’s statements] to actual decisionmakers.” (Id. at 8). Not anymore. Previously, the Court rightly wondered who placed this case on Mr. McGuire’s desk and what their motivations were. (Dkt. 185 at 2). We now know: it was Mr. Blanche and his office, the Office of the Deputy Attorney General, or “ODAG.” On April 30, 2025, just three days after Mr. McGuire personally took on this case, one of Mr. Blanche’s chief aides, Associate Deputy Attorney General Aakash Singh, told Mr. McGuire that this case was a [redacted]2 (Abrego-Garcia000007). That same day, Mr. Singh asked Mr. McGuire: [redacted] (Abrego-Garcia000008). Mr. McGuire responded with a timing update, saying he wanted to about a strategic question, and assuring Mr. Singh [redacted] and [redacted] (Abrego-Garcia000008). These communications and others show, as the Court put it, that [redacted] and [redacted] (Dkt. 241 at 5, 7). The “remarkable” statements “com[ing] close” to establishing vindictiveness (Dkt. 138 at 7-8) came from the same place— ODAG—as the instructions to Mr. McGuire to charge this case. The only “independent” decision (Dkt. 199 at 1) Mr. McGuire made was whether to acquiesce in ODAG’s directive to charge this case, or risk forfeiting his job as Acting U.S. Attorney—and perhaps his employment with the Department of Justice—for refusing to do the political bidding of an Executive Branch that is avowedly using prosecutorial power for “score settling.”3

2 The Court’s December 3 opinion (Dkt. 241) remains sealed, and the discovery produced to the defense in connection with Mr. Abrego’s motion to dismiss for vindictive and selective prosecution was provided pursuant to a protective order requiring that “[a]ny filing of discovery materials must be done under seal pending further orders of this Court” (Dkt. 77 at 2). Although the defense does not believe that any of these materials should be sealed for the reasons stated in Mr. Abrego’s memorandum of law regarding sealing (Dkt. 264), the defense is publicly filing a redacted version of this brief out of an abundance of caution pending further orders of the Court.

3 See Chris Whipple, Susie Wiles Talks Epstein Files, Pete Hegseth’s War Tactics, Retribution, and More (Part 2 of 2), Vanity Fair (Dec. 16, 2025), https://www.vanityfair.com/news/story/trump-susie-wiles-interview-exclusive-part-2.

While the specific content of this discovery remains redacted, the gist of it is clear: Blanche’s office ordered Tennessee prosecutors to file charges against Abrego in retaliation for his assertion of his due process rights.

We know similar documents exist in other cases — most notably, that of LaMonica McIver, Jim Comey, and Letitia James — but no one else has succeeded in getting their hands on the proof.

The Jim Comey stall

Speaking of which, the news you heard about yesterday is that DOJ filed its notice of appeal in both the Jim Comey and Letitia James’ dismissals.

The move comes after DOJ tried to indict James again in Norfolk on December 4 and then tried again in Alexandria on December 11, after which the grand jury made a point of making the failure (and the new terms of the indictment, which Molly Roberts lays out here) clear; Politico first disclosed the Alexandria filings here.

But I think the more interesting development — filed close to the time of the notice of appeals (the notices landed in my email box around 5:44-46PM ET on the last Friday before Christmas and the emergency motion landed in my email box around 5:17PM) — was yet another emergency motion in the Dan Richman case, something DOJ (under Lindsey the Insurance Lawyer’s name) keeps doing. After Judge Colleen Kollar-Kotelly issued her ruling that sort of said DOJ had to return Dan Richman’s stuff and move the remaining copy to EDVA, DOJ filed an emergency motion asking for clarification and an extension and (in a footnote) reconsideration. After Kollar-Kotelly granted the extension and some clarification (while grumbling about the tardiness and largely blowing off the motion for reconsideration), DOJ asked for another extension. Then DOJ filed a motion just informing Kollar-Kotelly they were going to do something else, the judge issued a long docket order noting (in part) that DOJ had violated their assurances they wouldn’t make any copies of this material, then ordering Richman to explain whether he was cool with this material ending up someplace still in DOJ custody rather than EDVA.

In its December 12, 2025, Order, the Court ordered the Government to “return to Petitioner Richman all copies of the covered materials, except for the single copy that the Court [] allowed to be deposited, under seal, with the U.S. District Court for the Eastern District of Virginia.” See Dkt. No. 20. The Court ordered the Government to certify compliance with its Order by 4:00 p.m. ET on December 15, 2025. Id. The Court further ordered that, until the Government certified compliance with its December 12 Order, the Government was “not to… share, disseminate, or disclose the covered materials to any person, without first seeking and obtaining leave of this Court.” See Order, Dkt. No. 20 at 2 (incorporating the terms of Order, Dkt. No. 10).

On December 15 (the Government’s original deadline to certify compliance with the Court’s December 12 Order), the Government requested a seven-day extension of its deadline to certify compliance with the Court’s December 12 Order. Dkt. No. 22. Petitioner Richman consented to this extension. Id. And the Government represented that it would “continue to comply with its obligation… not to access or share the covered materials without leave of the Court.” Id. at 11 (citing Order, Dkt. No. 10 and Order, Dkt. No. 20). So the Court granted the Government’s request for extension, thereby continuing the Government’s deadline to certify compliance with the Court’s December 12 Order to 4:00 p.m. ET on December 22. Order, Dkt. No. 26.

As of this date, the Government has not certified compliance with the Court’s December 12 Order. Accordingly, the Government is still under a Court order that prohibits it from accessing Petitioner Richman’s covered materials or sharing, disseminating, or disclosing Petitioner Richman’s covered materials to any person without first seeking and obtaining leave of this Court. See Dkt. No. 10; Dkt. No. 20; Dkt. No. 22; Dkt. No. 26. As the Government admits, the Government provided this copy of Petitioner Richman’s materials to the CISO “after the Government filed its emergency motion,” Gov’t’s Mot., Dkt. No. 31 at 1, fn. 1, in which the Government represented that it would “continue to comply with its obligation… not to access or share the covered materials without leave of the Court.” Dkt. No. 22 at 11.

In last night’s motion for emergency clarification (which had all the clarity of something written after a Christmas happy hour), DOJ explained that they couldn’t deposit the materials (which according to Kollar-Kotelly’s orders, would no longer have the single up-classified memo that Richman first shared his entire computer so FBI could get eight years ago) because there was no Classified Information Security Officer in the courthouse serving DOD, CIA, and ODNI. So they raised new complaints — basically, yet another motion for reconsideration. After having claimed, last week, that they had just a single copy of Richman’s data, they noted that actually they had it in a bunch of places, then pretended to be confused about storage devices.

d. The Court further clarified its order on December 16, 2025, stating that the Court “has not ordered the Government to delete or destroy any evidence.” ECF No. 27 at 2. But the Court has also instructed the Government that it may not “retain[] any additional copies of the covered materials.” ECF No. 20 at 2. The government has copies of the information in its systems and on electronic media. It is not clear how the government can avoid “retaining” the materials without deleting them.

e. The Court has not yet otherwise explained whether the Government must provide to Richman the original evidence “obtained in the Arctic Haze investigation (i.e., hard and/or flash drives and discs currently in the custody of the FBI,” ECF No. 22 at 9, some subset thereof (e.g., not including classified information), whether the Government must provide Richman the covered materials in some other fashion, and what else the Government must do (or not do) to comply with the December 12, 2025 order.

After they confessed, last week, that neither the discontinued e-Discovery software nor the now-retired and possibly impaired FBI agent could reconstruct what happened with Richman’s data five years ago, they insisted they were really keeping track of the data, Pinky Promise.

f. Notwithstanding the passage of time, changes in personnel, and the limits of institutional memory, the Government emphasizes that the materials at issue have at all times remained subject to the Department of Justice’s standard evidence-preservation, record-retention, and chain of custody protocols. The Government is not aware of any destruction, alteration or loss of original evidence seized pursuant to valid court-authorized warrants. Any uncertainty reflected in the Government’s present responses regarding the existence or accessibility of certain filtered or derivative working files does not undermine the integrity, completeness, or continued preservation of the original materials lawfully obtained and retained. The Government’s responses are offered to assist the Court in tailoring any appropriate relief under Rule 41(g) in a manner consistent with its equitable purpose, while preserving the Government’s lawful interests and constitutional responsibilities with respect to evidence obtained pursuant to valid warrants and subject to independent preservation obligations.

Every single thing about the treatment of Richman’s data defies this claim, which is why he had a Fourth Amendment injury to be redressed in the first place.

Nevertheless, in this their second motion fashioned as a motion for clarification, they they propose, can’t we just keep all the data and Pinky Promise not to do anything with it?

g. Rather than require the government to “return” or otherwise divest its systems of the information, the government respectfully suggests that the more appropriate remedy would simply be to direct the government to continue not to access the information in its possession without obtaining a new search warrant. It is not clear what Fourth Amendment interest would be served by ordering the “return” of copies of information (other than classified information) that is already in the movant’s possession, and that the government continues to possess, at least in the custody of a court (or the Department of Justice’s Litigation Security group, as may be appropriate given the presence of classified information). And the Court’s order properly recognizes that it is appropriate for the government to retain the ability to access the materials for future investigative purposes if a search warrant is obtained. ECF No. 20 at 1. Forcing transfer of evidentiary custody from the Executive Branch to the Judiciary would depart from the traditional operation of Rule 41(g), which is remedial rather than supervisory, and would raise substantial separation-of-powers concerns. The government respectfully suggests that the best way to do that is to allow the executive branch of government to maintain the information in its possession, rather than forcing transfer of evidence to (and participation in the chain of custody by) a court. See, e.g., United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000) (applying then-Rule 41(e) and noting that it provided for “one specific remedy—the return of property”); see also Peloro v. United States, 488 F.3d 163, 177 (7th Cir. 2007) (same regarding now-Rule 41(g)).

Having violated their promise not to make copies without permission once already, they Pinky Promised, again, they wouldn’t do so.

b. The Government shall continue not to access or share the covered materials without leave of the Court. See ECF No. 10 at 4; ECF No. 20 at 2.

And then they offered a horseshit excuse to ask for a two week extension beyond the time Kollar-Kotelly responds to their latest demands (partly arising from their own stalling of this matter into Christmas season) — that is, not a two week extension from yesterday, which would bring them to January 2, but instead two weeks from some date after December 22, which was at the time Richman’s next deadline.

a. Because it is yet not clear to the Government precisely what property must be provided to Richman by December 22, 2025 at 4:00 PM (and what other actions the Government must or must not take to certify compliance with the December 12, 2025 order as modified), the Government respectfully requests that it be provided an additional fourteen days (because of potential technological limitations in copying voluminous digital data and potential personnel constraints resulting from the upcoming Christmas holiday) from the date of the Court’s final order clarifying the December 6, 2025 order to certify compliance. 1

1 An extension of the compliance deadline is merited by the extraordinary time pressure to which the Government has been subjected and the necessity of determining, with clarity, what the Government must do to comply with the December 12, 2025 order as clarified and modified. See Fed. R. Civ. P. 60(b)(6); see also ECF No. 22 at 6–7 (summarizing applicable legal principles). [my emphasis]

They asked, effectively, to stall compliance for a month.

As a reminder, the grand jury teed up before Aileen Cannon convenes on January 12.

Kollar-Kotelly’s response (which landed in my email box at 7:06, so definitely after prime Christmas happy hour time) was … weird. In addition to granting the government part of the extension they requested (until December 29), she all of a sudden asked Richman what happened after he voluntarily let the FBI image his computer so they could ensure there was no classified information in it.

At present, in this second request, the Court would benefit from additional detail from Petitioner Richman regarding the Government’s imaging of Petitioner Richman’s personal computer hard drive in 2017. In 2017, Petitioner Richman consented to have the Government seize his personal computer hard drive, make a copy (an “image”) of his personal computer hard drive, and search his personal computer hard drive for the limited purpose of identifying and deleting a small subset of specified material. The Court is requesting information as to whether the hard drive that Petitioner Richman consented to have imaged by the Government was ever returned to Petitioner Richman, and, if so, whether any of the specified material had been removed from the hard drive that was returned.

Now maybe she’s asking this question simply to refute DOJ’s claim that any material independently held has to be held by a CISO.

The answer to this question is publicly available in the 80-page IG Report on this topic.

On June 13, 2017, FBI agents went to Richman’s home in New York to remove his desktop computer. On June 22, 2017, FBI agents returned the desktop computer to Richman at his home in New York after taking steps to permanently remove the Memos from it. While at Richman’s residence on June 22, 2017, the FBI agents also assisted Richman in deleting the text message with the photographs of Memo 4 from his cell phone.

It’s not clear why they ever kept the image in the first place (remember, they didn’t obtain a warrant to access it until well over two years later).

But I worry that Kollar-Kotelly is getting distracted from the clear recklessness — including DOJ’s most recent defiance of her order and their own Pinky Promises — for which Richman is due a remedy by the distinction between his physical property (the hard drive he got back eight years ago) and his digital property (the image of that hard drive, his Columbia emails, his iCloud, his iPhone, and iPad). The most serious abuse of his Fourth Amendment rights involved his phone, which DOJ only ever had in digital form, regardless of what kind of storage device they stored that content on (which we know to be a Blu-ray disc).

And meanwhile, everything about the government’s actions suggest they’re going to string Kollar-Kotelly along until they can get a warrant from the judge, Cannon, who once said Trump had to be given boxes and boxes of highly classified documents back because they also contained a single letter written by Trump’s personal physician and another letter published in Mueller materials.

They are just dicking around, at this point.

There’s a lot of shit going down in documents signed (as this emergency motion is) with Todd Blanche’s name. He still seems to believe he can juggle his way through politicizing the Department of Justice with some carefully executed Friday Night document dumps.

Alina Habba: A Parking Garage Lawyer with $1 Million in Sanction Penalties

December 1, 2025/24 Comments/in 2024 Presidential Election, emptywheel, Weaponized DOJ /by emptywheel

In the first appellate court decision on Donald Trump’s persistent effort to put Insurance Lawyers, Election Deniers, and other sundry actors play-acting as US Attorneys, the Third Circuit has unanimously ruled that Alina Habba really is nothing more than a Parking Garage lawyer.

Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA’s nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General’s delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA’s exclusivity provision. Therefore, we will affirm the District Court’s disqualification order.

This ruling, if applied elsewhere, would cause problems for Lindsey the Insurance Lawyer, Sigal the Election Denying Laywer, and Bill the Chapman Nut, as well — including Essayli, whom a judge ruled could act as First AUSA.

Abbe Lowell, who represents Letitia James in EDVA, argued this case before the court.

The Third Circuit ruling comes even as the Eleventh Circuit ruled that Alina the Parking Garage lawyer is not only just a Parking Garage lawyer, but a frivolous one at that, sustaining the $1 million in fees on her and her liege Donald Trump.

An awkward picture of Eagle Ed Martin and Lindsey Halligan posing in his office.

The Rolling Corruption behind the Letitia James Prosecution

November 18, 2025/14 Comments/in Weaponized DOJ /by emptywheel

When Letitia James submitted her vindictive and selective prosecution motion on November 7, DOJ’s efforts to cover up Bill Pulte’s FHFA shenanigans got relegated to a footnote in the section in the request for discovery.

Any remaining doubt about the existence of DOJ’s possession of material that might go towards establishing AG James’ vindictive or selective claims was obviated by the Government’s November 4, 2025, filing of its Notice of Reasons for Not Providing Pre-Vindictive/Selective Prosecution Motion Related Discovery. See DE-46. The Government’s filing states that it “bears no such obligation until a defendant ‘overcomes a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct.’” Id. at 1 (quoting Wilson, 262 F.3d at 315).68 AG James has exceeded that burden, and more.

68 If the Government did not believe it possessed “vindictive/selective prosecution-related discovery,” DE-46 at 4, the Government could have so stated, without filing notice of its intent not to produce such discovery. Yet the November 4 Notice seemingly contradicts what the government has previously suggested, which is that it has in its possession some discovery relevant to the defense’s prosecutorial vindictiveness argument that would be produced. Id. at 2. The Government started that process of producing such discovery, and on October 30, produced just seven news articles about the James investigation or case. That is all. Then, in a move suggesting the Government found additional items which it did not want to reveal or produce, the Notice followed on November 4, suggesting more such discovery exists. Public reporting from the day before also indicated that FHFA’s acting inspector general, Joe Allen, was fired from his role on November 3 “after he made efforts to provide key information to prosecutors in [Ms. Halligan’s] office, according to four sources. The information he turned over was constitutionally required, . . . [or] potentially relevant in discovery.” Sarah N. Lynch et al., Exclusive: Trump ousts watchdog of US housing regulator involved in mortgage probes of his foes, sources say, Reuters (Nov. 3, 2025), https://perma.cc/56J2-V7VZ (emphasis added). The defense is left guessing at what other prosecutorial vindictiveness discovery exists in the government’s hands.

Then yesterday, after receiving 2TB of discovery last Wednesday …

5. Since the initial appearance, the government has produced a significant amount of electronic discovery to the defense, spanning five production volumes containing, in total, more than 17,000 documents and 115,000 pages. The latest production (Vol. 05) alone, received on Wednesday, November 12, included nearly two terabytes of data.

…And another several stories on Bill Pulte’s corruption, Attorney General James submitted a motion to dismiss because of outrageous misconduct motion that described the holes in the Bates stamps where the documents describing Pulte’s misconduct must be.

Additionally, the government is likely already in possession of discovery relating to Director Pulte’s conduct that has not been produced to AG James. Specifically, there is reason to believe that documents reportedly turned over by former FHFA Acting Inspector General, including the internal complaint about Director Pulte’s access to AG James’s loan file, have not been produced. Based on metadata (including filename/file path) and the presence of an additional Bates stamp (FM_EDVA_122_), over 100 pages of discovery likely turned over by the former FHFA Acting Inspector General has not been produced.

Accordingly, in addition to the communications listed above, AG James specifically requests that the government be ordered to produce:

Any internal complaints filed against Director Pulte related to AG James.

All documents bearing a “FM_EDVA_122_” Bates stamp, including:

FM_EDVA_122_0000015–FM_EDVA_122_0000023

FM_EDVA_122_0000042–FM_EDVA_122_0000055

FM_EDVA_122_0000099–FM_EDVA_122_0000107

FM_EDVA_122_0000113–FM_EDVA_122_0000125

FM_EDVA_122_0000144–FM_EDVA_122_0000155

FM_EDVA_122_0000574–FM_EDVA_122_0000579

James’ outrageous action motion also focused on comms among others in Trump’s administration.

The current record of “outrageous conduct” is more than sufficient to dismiss this indictment. But even if this Court finds that AG James should be required to point to more to meet her burden to prove outrageous government conduct, the basis for discovery and an evidentiary hearing has been well established. The facts outlined above merit, at the very least, fulsome discovery into the government’s conduct in bringing this case, including all communications among and between President Trump, AG Bondi, Ms. Halligan, Mr. Martin, Director Pulte, and their staffs regarding AG James.

That comes, of course, mere weeks after Judge Jamar Walker ordered a litigation hold in response to Lindsey Halligan’s stalking of Anna Bower.

The defendant presents evidence that government counsel communicated with a member of the media about this case using an encrypted messaging app that enables automatic deletion of messages. See generally ECF No. 21-1. The Court is not asked to decide now whether any communications between the government and media are or will become discoverable. But in the event that such communications take place and are discoverable (or are subject to a judicial determination about discoverability), it is important that the government preserve the evidence of those communications. Cf. Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). Accordingly, the Court ORDERS a litigation hold preventing the deletion or destruction of any records or communications having to do with the investigation or prosecution of this case. This hold shall be in effect until further order of the Court.

And yet James may have to follow up on that order, given a letter from Jamie Raskin to Eagle Ed Martin demanding that he stop using Signal chats to weaponizing government against Trump’s adversaries.

My staff have received credible allegations that you have been using personal devices, platforms, and applications that do not adhere to federal laws and DOJ policies regarding records retention to conduct official DOJ business. This deliberate evasion of relevant rules of record retention appears to be part of an effort to conceal the Weaponization Working Group’s activities and your own conduct. Such conduct violates not only the Federal Records Act (FRA) and DOJ policy but also potentially relevant criminal statutes.4

The FRA requires all federal agencies and their employees to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.”5 This obligation applies to all recorded information, “regardless of form or characteristics.”6 DOJ policies reinforce these statutory requirements. DOJ Policy Statement 0801.04, for instance, states that personal email and other electronic accounts should not be used for DOJ business except under “exigent circumstances,” and when used, employees must comply with FRA requirements by forwarding communications to official accounts.7

Instead of preserving those records, however, you are reportedly concealing and potentially destroying them. As you are well aware, as one of America’s top-ranking federal lawyers charged with supervising enforcement of these laws, you are obligated to follow the law yourself and preserve messages related to your DOJ work in the official DOJ systems. Your purported failure to do so is not only illegal but it also suggests that you are knowingly covering up incriminating conversations that you need to keep off the books.

It’s unlikely that Lindsey’s single Loaner AUSA will ever be able to prove the case against James, 2TB of data and all.

But along the way, she and her co-conspirators are leaving a trail of corruption and crime a mile wide. They’re doing it in the same courthouse where Lindsey the Insurance Lawyer’s conduct is already the focus of scrutiny.

Trump’s DOJ won’t prosecute this, and Trump will pardon all of his minions at some point. But they decided to perform their corruption for judges, and that may not work out the way they want.

Corruption Is All Fun and Games Until It Threatens to Tank the Economy

November 12, 2025/24 Comments/in Economics, SCOTUS, Weaponized DOJ /by emptywheel

WSJ has a follow-up to the story Reuters published a week ago, on November 5 (which I wrote about here). The Reuters piece described that FHFA’s Inspector General had been fired as he was preparing to share information relevant to EDVA’s cases — so Letitia James — and also Congress.

The ouster of Joe Allen, FHFA’s acting inspector general, follows the agency’s director, Bill Pulte, becoming an outspoken voice in support of the Trump administration. Across the government, the Trump administration has so far fired or reassigned close to two dozen agency watchdogs, who police waste, fraud and abuse. It has also defunded the group that supervises those offices.

[snip]

Allen received notice of his termination from the White House after he made efforts to provide key information to prosecutors in that office, according to four sources. The information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the inspector general’s office, three of the sources said.

WSJ describes that Allen was investigating whether Bill Pulte ordered people to snoop in Trump’s adversaries’ records. It also confirms that Allen did share that information with EDVA (it doesn’t mention whether Allen had succeeded in sending off any letter to Congress).

Fannie Mae watchdogs who were removed from their jobs had been probing if Trump appointee Bill Pulte had improperly obtained mortgage records of key Democratic officials, including New York Attorney General Letitia James, according to people familiar with the matter.

Fannie’s ethics and investigations group had received internal complaints alleging senior officials had improperly directed staff to access the mortgage documents of James and others, according to the people. The Fannie investigators were probing to find out who had made the orders, whether Pulte had the authority to seek the documents and whether or not they had followed proper procedure, the people said.

That group elevated the probe about the James documents to the more senior Office of Inspector General for the Federal Housing Finance Agency, the agency that oversees Fannie Mae and Freddie Mac and that Pulte heads, the people said. The acting inspector general then passed the report to the U.S. attorney’s office in eastern Virginia, some of the people said.

[snip]

The FHFA acting inspector general sent the office the report at least in part because it could be considered material information for James’s defense in the case, one of the people said.

The very days this all happened, on November 4, the Loaner AUSA in the James case, Roger Keller, filed a notice saying DOJ was not going to comply with Judge Jamar Walker’s order to turn over vindictive and selective prosecution evidence, specifically pointing to the carve out in Federal Rules of Criminal Procedure for “reports, memoranda, or other internal government documents” made by “other government agents in connection with the investigation,” language that would cover any FHFA reports into Bill Pulte’s corruption.

Federal Rule of Criminal Procedure 16 does not require the Government to produce vindictive/selective prosecution-related evidence before a defendant files such a motion. The Rule permits a defendant to discover evidence material to her defense, FED. R. CRIM. P. 16(a)(1)(C), but “defense” means the “defense against the Government’s case in chief, . . . not to the preparation of selective prosecution claims.” Armstrong, 517 U.S. at 462 (citing FED. R. CRIM. P. 16(a)(1)(C))(emphasis added). FED. R. CRIM. P. 16(a)(2) underscores the limitation to “defense” as it “exempts from defense inspection ‘reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.’” Id. (quoting FED. R. CRIM. P. 16(a)(2)). “If a selective-prosecution claim is a ‘defense,’ Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own.” Id. [my emphasis]

James did mention the earlier Reuters report in her vindictive and selective prosecution motion, submitted last Friday.

The retribution campaign against AG James had only just begun. Around the same time, another federal agency, the Federal Housing Finance Agency (FHFA), led by Director William Pulte, was also looking for dirt to use against AG James. By April 14, they had concocted it. Mr. Pulte delivered a criminal referral “[b]ased on media reports” to DOJ against AG James, claiming she had “in multiple instances, falsified bank documents and property records to acquire government backed assistance and loans and more favorable loan terms.” Ex. F at 1. The criminal referral cherry-picked documents to claim fraud over three properties—one even going back to 1983—none of which was the Peronne Property at issue in the indictment.16 The referral asked DOJ to open a criminal investigation into AG James. See Ex. F at 1. Mr. Pulte also coordinated with Edward Martin—the self-described “captain” of DOJ’s Weaponization Working Group who is President Trump’s close confidante and would later also be named a Special Attorney.17

16 Mr. Pulte’s conduct demonstrates how far allies of the President would go to carry out his “get James” orders. Public reports indicate that Mr. Pulte “skipped over his agency’s inspector general when making criminal referrals” against President Trump’s political enemies. Reports also indicate he may have bypassed ethics rules in doing so. Marisa Taylor & Chris Prentice, Exclusive: Trump official bypassed ethics rules in criminal referrals of Fed governor and other foes, sources say, Reuters (Oct. 6, 2025), https://perma.cc/HK6Y-LJVR. The FHFA has no generalized crimefighting or anti-fraud authority. It does not even have an express authority to make criminal referrals besides those granted to the FHFA’s Inspector General under the Inspector General Act of 1978. In addition to violations of the act itself, Mr. Pulte may have failed to comply with the FHFA’s own Privacy Act regulations, which require FHFA to “ensure” that records containing personally identifiable information are “protected from public view.” Domenic Powell, Are Pulte’s “Mortgage Fraud” Investigations Legal?, Yale J. Reg.: Notice and Comment (Nov. 1, 2025), https://perma.cc/2U6G-S46X.

17 Alan Feuer et al., Trump Demands That Bondi Move ‘Now’ to Prosecute Foes, N.Y. Times (Sept. 20, 2025), https://perma.cc/FC9R-U8TK. [link added]

This story may provide opportunity to submit a follow-up (or at least revisit the issue in a reply memo due in two weeks).

By then, of course, we may have more visibility into who got Allen fired, and whether simply the referral to Lindsey Halligan did the trick.

Particularly if Allen did succeed in getting that letter sent to Congress.

All this is happening at a curious time. First, just yesterday Politico claimed someone in Trump’s immediate orbit was furious at the way Pulte sold Trump on an insanely stupid 50-year mortgage plan.

White House officials are furious with Bill Pulte, the Federal Housing Finance Agency director, who talked the president into suggesting a 50-year mortgage plan.

The White House was blindsided by the idea, according to two people familiar with the situation granted anonymity to discuss internal thinking, and is now dealing with a furious backlash from conservative allies, business leaders and lawmakers.

On Saturday evening, Pulte arrived at President Donald Trump’s Palm Beach Golf Club with a roughly 3-by-5 posterboard in hand. A graphic of former President Franklin Roosevelt appeared below “30-year mortgage” and one of Trump below “50-year mortgage.” The headline was “Great American Presidents.”

Roughly 10 minutes later, Trump posted the image to Truth Social, according to one of the people familiar, who was with the president at the time.

Almost immediately, aides were fielding angry phone calls from those who thought the idea – which would endorse a 50 year payback period for a mortgage – was both bad politics and bad policy, a move that could raise housing costs in the long run, the person said.

After describing fury about how Pulte did this — hitting Trump up with visuals at the golf club — Politico spends 11 paragraphs describing a range of people panning the idea before describing the last time Pulte did this: when pitching a plan to bring Fannie and Freddie public, another insanely stupid idea.

“Anything that goes before POTUS needs to be vetted,” said the person present for Pulte’s poster presentation. “And a lot of times with Pulte they’re not. He just goes straight up to POTUS.”

[11 ¶¶ of influencers and experts panning the idea]

This is not the first time Pulte’s policy proposals have caused headaches. He was also behind the idea Trump floated earlier this year to take Fannie Mae and Freddie Mac public, which also resulted in significant pushback from industry.

Which brings us to the very last paragraph of the WSJ story, a story mostly focused on Pulte’s investigation-related corruption. It suggests Pulte’s corruption may make it harder to bring Fannie and Freddie public, that prior idea he floated by cornering Trump with unvetted ideas.

The Trump administration is considering an initial public offering for Fannie Mae and Freddie Mac, one of the biggest IPOs in history at a crucial moment for the mortgage market. That process will require convincing potential investors, and the broader mortgage-bond market, the management of the companies is stable.

As I read both James’ and Comey’s motions to dismiss for vindictive prosecution, there’s part of me that selfishly wants this process to be one step harder than it needs to be: rather than simply dismissing on the abundant evidence of vindictive prosecution laid out (or, even more likely, because Lindsey the Insurance Lawyer is only playacting as US Attorney, about which there is a hearing tomorrow), I want them to get discovery so we can unpack all this process and bring down the corrupt enablers like Pulte, Eagle Ed Martin, on up to Pam Bondi and Todd Blanche.

Still, there’s something that may force this to go even more public than it otherwise would: Lisa Cook, into whose private records Pulte was likely also snooping, who will have a hearing about whether Trump attempted to fire her “for cause,” or because Pulte snooped in her private records looking for cause.

Corruption is all fun and games until it gets fast-tracked to SCOTUS (where, admittedly, Justices have been all too happy to legalize corruption). It’s all fun and games, Trump’s team seems to believe, until it poses a risk to the housing market.

For whatever reason, Bill Pulte seems to be getting fast-tracked in Trump world, from a useful corrupt flunky to a dangerous liability.

Letitia James Highlights Eagle Ed Martin Just Before He Goes on a Conspiratorial Rant

November 9, 2025/14 Comments/in Weaponized DOJ /by emptywheel

Vindictive and selective prosecution cases are always nearly impossible to win, because of how narrowly the precedent draws the analysis. To prove vindictive prosecution, the defendant has to prove that the prosecutor who made a charging decision harbored animus to the defendant.

But of course, in Jim Comey and Letitia James’ case, the playacting prosecutor, Lindsey Halligan, is just doing what her boss installed her to do. She didn’t act out of animus towards Comey and James, except insofar as such animus is a litmus test for belonging in Trump’s tribe (though her brief stint at the Smithsonian also exposed her as a dumb bigot, which could be relevant in James’ case). She acted out of a corrupt willingness to do anything her boss tells her to do.

Here’s how Lindsey’s Loaner AUSAs argued that Comey had not met that standard in their response to his vindictive and selective prosecution motion.

To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.” Wilson, 262 F.3d at 316; see United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995) (noting that the focus “is on the ultimate decision-maker”). Here, that prosecutor is the U.S. Attorney. Yet the defendant doesn’t present any evidence that she harbors animus against him. Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.” See Def. Mem., Dkt. No. 59 at 21. And, according to him, that is the President. See id. As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense. Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution. See Gomez-Lopez, 62 F.3d at 304. The only “direct evidence” on the issue says otherwise. See Wilson, 262 F.3d at 314.

The defendant’s argument relies on the imputed-animus theory. The Fourth Circuit has never adopted that theory. In fact, when a defendant asked the Fourth Circuit to impute animus from investigating law-enforcement agents, the Fourth Circuit categorically rejected the theory. See United States v. Hastings, 126 F.3d 310, 314 (4th Cir. 1997) (“We will not impute the unlawful biases of the investigating agents to the persons ultimately responsible for the prosecution.”); see also United States v. Cooper, 617 F. App’x 249, 251 (4th Cir. 2015). That is consistent with other circuits’ application of the theory in that context. See, e.g., United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (“In all but the most extreme cases, it is only the biases and motivations of the prosecutor that are relevant.”); United States v. Spears, 159 F.3d 1081, 1087 (7th Cir. 1998).

When courts have entertained the imputed-animus theory in other contexts, they have required a significant evidentiary showing: there must be “evidence that the federal prosecutor did not make the ultimate decision to bring the indictment.” Spears, 159 F.3d at 1087.

It is true that Comey and James (in a filing submitted Friday) both did ultimately say Trump ordered up their prosecutions, relying heavily on his tweet ordering Pam Bondi to install Lindsey Halligan to do so.

But they took a different approach in laying out the weaponization of DOJ. Comey, relying on a 60-page exhibit of Trump tweets to demonstrate the President’s animus, focused relentlessly on Trump. He didn’t even mention the now-FBI Director’s equally rabid animus.

Tish James had her exhibit showing how obsessively Trump hates her too; it includes not just tweets, but also speeches, and at 113 pages is almost twice as long as Comey’s exhibit.

But James also focused on the way the Trump Administration, more generally, has been (literally) stalking her, notably in the form of Eagle Ed Martin, as well as Pam Bondi, Stephen Miller, and Bill Pulte (this section is where James includes the Reuters report about firing the FHFA IG to prevent him from sharing information with prosecutors; that footnote and others are at the bottom of this page).

AG Bondi took the President’s mission to heart, and on the first day of her appointment, established DOJ’s “Weaponization Working Group,” with the stated objective to examine “[f]ederal cooperation with the weaponization” by “New York Attorney General Letitia James” to “target President Trump, his family and his businesses,” among other top priorities. 15 Ex. C. The goal was to retaliate against the President’s perceived political enemies, including AG James.

In March, President Trump also issued a Presidential Memorandum, “Rescinding Security Clearances and Access to Classified Information from Specified Individuals,” specifically calling out AG James, claiming “it is no longer in the national interest” for her, along with fourteen of his other perceived political opponents, to have a security clearance or access classified information. Ex. D.

The retribution campaign against AG James had only just begun. Around the same time, another federal agency, the Federal Housing Finance Agency (FHFA), led by Director William Pulte, was also looking for dirt to use against AG James. By April 14, they had concocted it. Mr. Pulte delivered a criminal referral “[b]ased on media reports” to DOJ against AG James, claiming she had “in multiple instances, falsified bank documents and property records to acquire government backed assistance and loans and more favorable loan terms.” Ex. F at 1. The criminal referral cherry-picked documents to claim fraud over three properties—one even going back to 1983—none of which was the Peronne Property at issue in the indictment.16 The referral asked DOJ to open a criminal investigation into AG James. See Ex. F at 1. Mr. Pulte also coordinated with Edward Martin—the self-described “captain” of DOJ’s Weaponization Working Group who is President Trump’s close confidante and would later also be named a Special Attorney.17 Reporting even indicates that President Trump had been bypassing his senior DOJ lead regularly telephoning Martin for updates on his work, leaving [DAG Todd] Blanche ‘frustrated and annoyed,’” according to sources.18

Standing outside the White House on the day the referral was released, one of the President’s aides, Deputy Chief of Staff Stephen Miller, told reporters AG James “is one of the most corrupt, shameless individuals ever to hold public office” and “is guilty of multiple, significant, serial criminal violations” for having “persecute[d] an innocent man,” referring to President Trump.19 President Trump also did not withhold his views about FHFA’s criminal referral to DOJ, attacking AG James directly in several social media posts discussing the referral:

Turns out you can’t have your principal residence in Virginia and be AG of New York. You can’t say your dad’s your husband. Or claim a five-unit is a four. But that’s what Letitia James did—while going after Trump for the same thing. You’ve got to be kidding me

Ex. A. at No. 334;

Letitia James, a totally corrupt politician, should resign from her position as New York State Attorney General, IMMEDIATELY. Everyone is trying to MAKE NEW YORK GREAT AGAIN, and it can never be done with this wacky crook in office.

Id. at No. 333.

On the heels of the referral to DOJ, in May, Mr. Martin admitted that he planned to use his authority to expose and discredit opponents of the President whom he believes to be guilty. 20 He made plain that it did not matter if there were no facts to back up President Trump’s accusations or even if a charge had no merit: “If they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, there should be people that are shamed.”21 Discussing targets for criminal investigation, Martin stated that the Weaponization Working Group’s prerogative included “Letitia James.”22

And to support this additional prong of animus, James included a second, 12-page exhibit, which includes (among other things), all the creepy pictures Eagle Ed has posted of himself stalking James, including pictures showing him reviewing files with Halligan just before she indicted James or just randomly chatting up someone at FHFA.

It also documents Eagle Ed’s juvenile trolling on Xitter.

It may be an awkward time, for Eagle Ed, to have such a focus on his trollish obsessions.

That’s because he is currently involved in equally pathetic troll campaign targeting a woman that right wing nutjobs have decided must be the Pipe Bomber based off gait analysis — I guess they’ll get around to using phrenology? — and their dislike of how she testified against Guy Reffitt, the first Jan6er to go to trial.

Anna Bower has been spending her weekend documenting how Eagle Ed first posts, then deletes, tweets trying to gin up the frothy mob. In the first such instance, someone — maybe Todd Blanche — made Eagle Ed affirmatively deny the gait-analysis claims as a “fake.”

These tweets show not just that a key cog in the James prosecution — the guy who accepted allegations from Bill Pulte and then ferried them to the woman playacting as US Attorney — is a wild conspiracy theorist happy to magnify any kind of bullshit he gets from frothy right wingers, but also that some babysitter at DOJ knows he is, and is attempting to rein him in.

I’m not sure whether Comey’s more focused approach or James’ wholistic one works better. Given that prosecutors dismissed Comey’s comparators because none had precisely the same role he once did, he certainly has an opportunity to use the opening memo that Tyler Lemons submitted last week which led to these charges to show that the current FBI Director lied his ass off to the Senate Judiciary Committee when he told Mazie Hirono that he had no intention of revisiting history to prosecute Comey.

Senator Hirono (02:18:49):

Do you plan to investigate James Comey, who’s on your list?

Kash Patel (02:18:54):

I have no intentions of going backwards-

The opening memo shows that Kash wasted no time in doing just that — not just chasing the John Durham prosecution predicated of Russian disinformation, but putting Durham’s wildly-conflicted lead investigator in charge, literally finding a lame excuse to revisit the Durham investigation.

The broad or narrow scope may not matter. Indeed, unless the cases get dismissed because Lindsey was just playacting as US Attorney, there’s a non-zero chance these arguments will be appealed through the Fourth Circuit together, which is presumably why Comey had loaded his team with appellate lawyers and scores of people are submitting amicus briefs.

These vindictive and selective prosecution arguments may make new precedent, about whether the President can repurpose the Department of Justice to prioritize jailing his political adversaries.

But Eagle Ed has now made clear that one element of that repurposed DOJ is seizing and stoking baseless conspiracy theories to rile up the base.

15 Ryan Lucas, New attorney general moves to align Justice Department with Trump’s priorities, NPR (Feb. 5, 2025), https://perma.cc/WLU8-FPBL.

16 Mr. Pulte’s conduct demonstrates how far allies of the President would go to carry out his “get James” orders. Public reports indicate that Mr. Pulte “skipped over his agency’s inspector general when making criminal referrals” against President Trump’s political enemies. Reports also indicate he may have bypassed ethics rules in doing so. Marisa Taylor & Chris Prentice, Exclusive: Trump official bypassed ethics rules in criminal referrals of Fed governor and other foes, sources say, Reuters (Oct. 6, 2025), https://perma.cc/HK6Y-LJVR. The FHFA has no generalized crimefighting or anti-fraud authority. It does not even have an express authority to make criminal referrals besides those granted to the FHFA’s Inspector General under the Inspector General Act of 1978. In addition to violations of the act itself, Mr. Pulte may have failed to comply with the FHFA’s own Privacy Act regulations, which require FHFA to “ensure” that records containing personally identifiable information are “protected from public view.” Domenic Powell, Are Pulte’s “Mortgage Fraud” Investigations Legal?, Yale J. Reg.: Notice and Comment (Nov. 1, 2025), https://perma.cc/2U6G-S46X.

17 Alan Feuer et al., Trump Demands That Bondi Move ‘Now’ to Prosecute Foes, N.Y. Times (Sept. 20, 2025), https://perma.cc/FC9R-U8TK.

18 Andrew Feinberg, Trump ally probing rivals’ ‘mortgage fraud’ speaks directly with the president – and skips typical DOJ hierarchy, The Independent (Aug. 29, 2025), https://perma.cc/4LXUUUAC.

19 Statement of Stephen Miller, White House Homeland Security Adviser and Deputy Chief of Staff for Policy, to Reporters outside the White House (Apr. 18, 2025), https://perma.cc/9X5GX7YB (emphasis added).

20 U.S. Attorney Ed Martin Holds News Conference, C-SPAN (May 13, 2025), https://www.cspan.org/program/news-conference/us-attorney-ed-martin-holds-news-conference/659817.

The IG Firing that May Matter: FHFA

November 5, 2025/9 Comments/in emptywheel /by emptywheel

Yesterday, Reuters reported that the Inspector General for FHFA, which oversees Fannie and Freddie, got fired by the White House yesterday.

The ouster of Joe Allen, FHFA’s acting inspector general, follows the agency’s director, Bill Pulte, becoming an outspoken voice in support of the Trump administration. Across the government, the Trump administration has so far fired or reassigned close to two dozen agency watchdogs, who police waste, fraud and abuse. It has also defunded the group that supervises those offices.

The report attracted little notice; Reuters even notes that this is just one among dozens of IG firings. But this firing may blow up sooner rather than later.

That’s because Allen was preparing to share information with EDVA prosecutors.

Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia who was hand-picked for the job by Trump, subsequently indicted James after her predecessor declined to do so, citing a lack of evidence.

Allen received notice of his termination from the White House after he made efforts to provide key information to prosecutors in that office, according to four sources. The information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the inspector general’s office, three of the sources said. These individuals said the FHFA director would typically have been notified of such a letter. Reuters was unable to independently determine whether Pulte was informed.

By the end of the day, the Loaner AUSA in the Letitia James case had submitted a letter stating they would not comply with Judge Jamar Walker’s order, issued during the arraignment, that they turn over evidence on selective and vindictive prosecution.

A grand jury returned a two-count indictment against Defendant on October 9, 2025. Doc. 1. Defendant’s Initial Appearance and Arraignment occurred on October 24, 2025. Doc. 24. At that hearing, the Court ordered Defendant to file her motion to dismiss based on vindicative/selective prosecution by November 7, 2025. Hear’g Tr., 23:18-20. It also indicated its expectation “that the discovery associated with this potential first motion needs to be frontloaded . . . .” Id. at 23:14-16. Consistent with this Court’s instruction, the Government provided newspaper articles to Defendant’s counsel. Defendant’s counsel also indicated that he intends to request substantial discovery from the Government.

The Government provides notice of its intent not to provide vindictive/selective prosecution-related discovery prior to Defendant’s motion because the law does not “allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant . . . overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. The standard is a ‘rigorous’ one.” Wilson, 262 F.3d at 315 (quoting Armstrong, 517 U.S. at 468). Until Defendant meets her threshold requirements, the Court’s instruction to produce any vindictive/selective prosecution-related discovery is premature.

The letter specifically describes that Rule 16 discovery does not include internal government reports made by government agents in connection with the case — something that would be covered by any review that FHFA’s IG did of this and other Bill Pulte referrals.

FED. R. CRIM. P. 16(a)(2) underscores the limitation to “defense” as it “exempts from defense inspection ‘reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.’”

The filing is not dissimilar from a letter prosecutors sent in the LaMonica McIver case, telling McIver’s attorneys they would not abide by Judge Jamel Semper’s August 26 order to meet and confer about selective and vindictive evidence.

The Government has reviewed your letter of September 3, 2025 detailing the specific discovery requests sought in conjunction with your client’s motion to dismiss based on selective prosecution and enforcement, and vindictive prosecution. As we discussed during our Zoom call yesterday, we believe that the discovery sought in your September 3rd letter is not covered by Rule 16. Discovery in support of selective prosecution and selective enforcement claims is not provided as a matter of right, and we do not believe your client has satisfied the applicable threshold evidentiary showings required by Amstrong/Bass and Washington to compel discovery. We therefore believe that Judge Semper should first rule on your client’s motion for discovery, which we will oppose, and we will revisit the discovery demands outlined in your letter should the Court grant her request.

And while Semper ruled that prosecutors have to provide McIver the communications from Delaney Hall to her, they otherwise appear to have gotten away with this stance.

But two things may lead to a different outcome here.

First, by firing Allen, the White House has made the firing itself an issue, not unlike the Erez Reuveni firing did in the Kilmar Abrego case. At the very least, this news report will add to the bases to claim vindictive prosecution.

But also because Attorney General James shares an attorney, Abbe Lowell, with Lisa Cook. No one has charged Lisa Cook yet — maybe they never will; but nevertheless she has a date at the Supreme Court in January. And that may have the effect of putting several issues before the Court at once (the lawsuit by a bunch of Inspectors General fired at the beginning of Trump’s term is stayed pending all these other cases).

None of that’s to say that SCOTUS will reverse course on letting presidents (or at least this one) fire everyone put in place to exercise some oversight.

Lindsey the Insurance Lawyer’s Disappearing Agreement to a Litigation Hold

October 31, 2025/38 Comments/in emptywheel, Weaponized DOJ /by emptywheel

I was disappointed, in the way we here in the peanut gallery sometimes are, that Tish James had to specifically rebut the silly things that Lindsey Halligan’s loaner AUSA, Roger Keller, claimed to try to excuse Lindsey’s stalking of Anna Bower.

Attorney General James’ original request asked Judge Jamal Walker to order the government to do three things:

Abstain from further extrajudicial statements like Lindsey’s Signal stalking of Bower
Follow rules and laws requiring prosecutors (and Federal employees generally) to retain their communications
Create and maintain a log of all contact between any government attorney or agent on this case and any member of the news media

As Lawfare’s excellent trial dispatch from Molly Roberts described, when initially presented with this question, loaner AUSA Keller — “a civil litigation lawyer by training,” Roberts helpfully noted — got hung up on a contact log tracking not just with the reporters Lindsey the Insurance Lawyer spoke to, but also with whom others (this is implicit, but let me make it more obvious) like Eagle Ed Martin did.

Keller responded to this request, that prosecutors follow the rules, by demanding that the defense follow the same rules … which is not how it works, both Abbe Lowell and Judge Walker reportedly responded.

The next motion invites a bit more controversy, or at least confusion. James also filed a motion prior to the arraignment asking the court to order the government to follow rules preventing disclosure of investigative and case materials, as well as to refrain from extrajudicial statements concerning the case to the press and public. This motion was prompted in part by an Oct. 20 article published in Lawfare by my colleague, Senior Editor Anna Bower, detailing texts sent to her by Halligan in which Halligan criticizes Bower’s tweets about New York Times coverage of grand jury testimony in the case.

This violated, the filing says, Rule 6(e) of the Federal Rules of Criminal Procedure. It argues that the exchange with Bower and the other instances of apparent disclosure it describes—including pre-indictment reports that prosecutors intended to bring charges—also violate various rules, regulations, and ethical obligations. The motion doesn’t ask for a finding to that effect, only for an order to prevent such conduct in the future.

The judge, mentioning only “a journalist” and “an article published,” notes these oddities of the filing. Anyone hoping for a television-ready showdown in which the defense demands the prosecution be held in contempt is quickly disappointed: Judge Walker has interpreted the filing correctly, confirms Lowell.

The judge determines that leaves the prosecution three options: oppose the motion in its entirety; don’t oppose it at all; or oppose the proposed relief. The Eastern District prosecutors would have to preserve all documents relevant to the trial (a litigation hold) as well as create a log of all contact between its attorneys or agents and the media. The litigation hold doesn’t bother Keller. But he expresses reservations about the log, mentioning that “the defendant is also active on the Internet.” Specifically, he takes issue with her tweeting that she is innocent.

The judge, understandably, appears perplexed. He remarks that it’s unclear what Keller is asking. And it is: A public tweet from James in which she says “I am not fearful, I am fearless” has little to do with contact between her attorneys and the media. The misunderstanding only becomes greater when Keller elaborates that any log requirement for the government should also be a requirement for the defendant, and should cover “statements of innocence before the press.”

Does he mean that James should have to keep a record of any proclamations of her intention to fight the charges against her? Or does he mean she shouldn’t be allowed to make them at all?

Keller seems to be suggesting that the restrictions on the defendant’s public speech should mirror those placed on the prosecution. But this is not how these things work. Prosecutors have unique obligations not placed on defendants, who have First Amendment rights to protest their innocence.

Judge Walker delicately instructs Keller—a civil litigation lawyer by training, as it turns out—to take some time to think about the matter and get back to him. Lowell, for his part, declares that the rules to which government lawyers are held aren’t the same ones that apply to a defendant.

“The court certainly understands the requirements,” responds the judge. It is a little less certain that the prosecutor does. [my emphasis]

Now, when I first read Roberts’ dispatch, I honestly thought Keller’s confusion stemmed from that detail, “a civil litigation lawyer by training.” He just doesn’t know what he’s doing.

But when I started writing an abandoned post on his response, I came to believe he — like Lindsey the Insurance Lawyer — is mostly performing for a one man audience. To understand why I think that, check out how loaner AUSA Keller spends a 17¶¶ response:

Lindsey the Insurance Lawyer and loaner AUSA Keller ask that Walker not impose unilateral requirements to preserve all communications and keep a log [my emphasis]
Background: a grand jury indicted the Defendant
Walker should not impose unilateral requirements to preserve all communications and keep a log and also, US v. Trump! (citing the DC Circuit opinion partly upholding the gag on Trump), because Lindsey the Insurance Lawyer had to protect her client [my emphasis]
Here’s a citation that’s totally inapt but which will allow me to argue Tish James has to shut her yap
If the government has to “preserve all communications with any media person” and also keep a log of those contacts, “the unstated threat that she – at some future point in time – may engage in a ‘gotcha’ game where she brings a sanctions motion” may “chill all Government/media interaction” [my bold, italics original]
“There is no Court-imposed requirement that the Government preserves the records,” but can you imagine if a log of all communications means “all communications”?
If we have to follow the rules, Tish James has to follow rules for prosecutors too (citing US v Trump again)
“Defendant’s right to a fair trial does not give [her] the right to insist upon the opposite of that right – that is a trial prejudiced in [her] favor,” citing US v. Trump again
Because she’s a lawyer, Attorney General James has to adhere to NY rules of professional conduct even if Lindsey the Insurance Lawyer refuses to adhere to any rules of professional conduct
After her arraignment, James said she “will not bow” and there have to be rules against that!
Lindsey the Insurance Lawyer covertly bullying a journalist on disappearing messages is nowhere near as bad as Tish James saying “I will not bow” on a telly that Donald Trump can see!
Lindsey the Insurance Lawyer was just protecting her client — which client I will decline to name — “from substantial undue prejudice”
Grand jury secrecy is no big deal
Lindsey the Insurance Lawyer didn’t explicitly reveal what went on in the grand jury
Lindsey the Insurance Lawyer was merely — and heroically — “protect[ing] her client from unfair prejudice resulting from reporting half-truths”
I’m going to distract from the way Bower caught Lindsey the Insurance Lawyer pretending “thousand(s)” of dollars was not just two thousand
You should tell Tish to shut her yap!

I admit, the first time I read this filing, I read in terms of obvious bullshit to rebut, like I imagine lawyers do.

But when you lay it out like this, paragraph by paragraph, the pressing question becomes whether these people — not just Lindsey the Insurance Lawyer, Donald Trump’s defense attorney, but also loaner AUSA Keller — think Donald Trump, and not the US of A, are their client, a client demanding that his minions ensure that Tish James doesn’t become a rock star because of this prosecution.

Because otherwise, why demand that Tish James bow down? Why cite US v. Trump so prominently?

James addressed both these questions. She asked, Who exactly do these people think their client is?

Third, the government’s assertion that Ms. Halligan was only trying to protect “her client” raises the question of who she believes “her client” to be. Her “client” is neither the President, nor the Attorney General, nor the Administration, nor even her Office. It is the United States, as the case caption makes clear, and “[t]he United States wins its point whenever justice is done its citizens in the courts.”2 The point remains true regardless of whether the outcome is the one that the government favors. “Justice is done” when its “citizens in the courts” receive a fair trial. And in any event, a defendant’s fair trial rights decidedly trump any so-called “unfair prejudice” to the government’s case from public reporting. Courts have held that extrajudicial statements and comments by attorneys may be restricted to protect a defendant’s fair trial rights and the integrity of judicial proceedings—which override any desire by government prosecutors to “attempt to protect [Ms. Halligan’s] client from unfair prejudice.” Opp. at 6. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 361 (1966); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066 (1991).

2 DOJ, Remarks as Delivered by Attorney General Merrick B. Garland, https://www.justice.gov/archives/opa/speech/attorney-general-merrick-b-garland-deliversremarks-office-access-justices-gideon (Mar. 17, 2023).

The insistence that “fair trial rights decidedly trump any so-called ‘unfair prejudice'” is, I hope, an intentional double entendre.

James’ citation for the quote, “[t]he United States wins its point whenever justice is done its citizens in the courts,” is more subtle. The footnote cites this speech by Merrick Garland, a tribute to public defenders and defense attorneys generally, in which he emphasized the import of rule of law.

It reaffirmed that the law protects all of us – the poor as well as the rich, the powerless as well as the powerful.

In so doing, it reaffirmed this country’s commitment to the Rule of Law.

And trust in the Rule of Law is what holds American democracy together.

But the words, “[t]he United States wins its point whenever justice is done its citizens in the courts,” are not Garland’s words (though that was not the only speech where he used them). They were spoken by Willliam Taft’s Solicitor General, Frederick Lehmann, and they are inscribed on the building at DOJ. Judge Walker (a former AUSA) will presumably recognize that; Keller the loaner AUSA should: but Lindsey the Insurance Lawyer may see only a citation to Garland and worry about her boss — her client — again.

Then there’s James’s treatment of Keller the loaner AUSA’s inapt reliance on US v. Trump. She uses that to recall Trump’s misconduct as a defendant, something she knows well.

The government’s reliance on United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023)—a case affirming a limited gag order placed on then-defendant Donald Trump in response to his public statements threatening witnesses, participants, and the judiciary during litigation—to defend Ms. Halligan’s interactions with the reporter is entirely misguided. Opp. at 3–4. Trump is relevant only to the extent that it proves the relative strength of a criminal defendant’s First Amendment rights and the extraordinary circumstances required to justify any burden on such rights. See id. (“[A] criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against the prosecution and the criminal trial process that seek to take away his liberty.”). The Trump court set out facts justifying the order in vigorous detail, including a timeline of President Trump’s extensive attacks on witnesses, court officials, judges, law clerks, and other government personnel. See id. at 1010. It also catalogued the violent and threatening responses resulting from President Trump’s statements. See id. at 1011.

Even under those extraordinary circumstances, the court still found that “Mr. Trump [was] free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he [was] innocent of the charges against him.” Id. at 1028. Attorney General James’ speech, including following her initial appearance, cannot be reasonably compared to the statements that led to the United States v. Trump gag order, and regardless, would have been outside of its reach.

And James invoked Trump’s “almost weekly … disparaging comments against her” to suggest the government won’t win a war of the lesser wrong.

The comparison that the government now offers is to a public statement by a defendant who has faced almost weekly assertions by the President, or those carrying out his bidding, calling for her prosecution and conviction or making other disparaging comments against her. The government’s argument appears to be that “two wrongs don’t make a right.” But the defendant has not contravened the cited rules; the government has. The relief requested in the Motion is intended only to ensure that does not happen again and that, if it does, the government does not delete the evidence of its wrongdoing. That relief should be unobjectionable to the government.

The James prosecution is not functionally necessary for Donald Trump’s witch hunt — it is discrete punishment for someone who humiliated Donald Trump by treating him as a garden variety fraudster. That may be why Lindsey the Insurance Lawyer only got one loaner AUSA for this case, as compared to two overt ones for the Comey case (plus at least one more guy writing the filings), which is one part of the larger project. So maybe this is all about the posturing, an attempt to ensure that nothing about this prosecution backfires on the “client.”

But the focus on Trump — the need to respond to the totally inapt reliance on US v. Tump — distracted from something potentially more important.

Go back to bullet 5 again. Here’s that full quote:

Essentially, Defendant attempts to chill all Government/media interaction with the unstated threat that she – at some future point in time – may engage in a “gotcha” game where she brings a sanctions motion because the Government inadvertently failed to maintain a document or include a contact in its log.

This is an astonishing statement, one James addresses this way:

The opposition’s hyperbolic claim that the Motion seeks something like a gag order, Opp. at 3, fares no better. Government counsel and their agents have an ongoing obligation to refrain from certain types of extrajudicial statements and disclosures that may jeopardize a fair trial in this case. James Mot. at Sec. I. The defense is not asking the Court to “chill” all the government’s interaction with the media; it concedes that many statements that “a reasonable person would expect to be further disseminated by any means of public communications” are permissible.1 James Mot. at 9 (quoting Loc. Crim. R. 57.1(C)). Rather, the defense is seeking the Court’s assistance in assuring that the government adheres to the rules it has set for itself.

1 Another red herring, based on nothing in the Motion, is the government’s suggestion that Attorney General James is “attempt[ing] to chill all Government/media interaction” to later play “a ‘gotcha’ game” over the government’s failure to maintain a document or include a contact in its log. Opp. at 3. Following long-standing rules on extrajudicial statements is not “gotcha,” it is basic to the government’s obligation to protect fair trials.

These are prosecutors, wailing about being asked to retain documents! The government complains about being asked to preserve documents five times, plus the requirement that it maintain documents in its chill comment. And loaner AUSA Keller makes those complaints after having agreed to a litigation hold at the arraignment, something James notes in the first paragraph.

[A]s government counsel acknowledged at the October 24, 2025, initial appearance and arraignment, the government agreed to comply with the litigation hold request made in the Motion to prevent any further deletions and to preserve any other extrajudicial communications that may have been made.

Loaner AUSA Keller outright states that it would “chill” … something if prosecutors are asked to retain all their documents, something that normal prosecutors do as a matter of course, at least until a matter is concluded. This is like Trump demanding that he get to wipe every phone involved in this prosecution on a daily basis, after spending years misrepresenting what happened after Mueller team members left that team.

It’s not a “gotcha” if, as a prosecutor, you start deleting documents willy nilly. It is a real violation. It should be. Especially in a case like this one where the President accidentally issues orders on his social media site intended to be private. Is there a whole stash of Truth Social DMs about this case that have been deleted?

So I get the point of replying to the issues loaner AUSA Keller raised, including the inapt nod to the indignities that Donald Trump suffered after he got indicted and then threatened to kill witnesses (including the witness he almost got killed on January 6).

But that repeated complaint about merely retaining all your communications, particularly coming after already orally agreeing to do so, has me wondering if something much bigger than Lindsey the Insurance Lawyer’s stalking problem is going on.

Update: Judge Walker has issued the litigation hold but not required prosecutors to log their contact with journalists. He even extended his admonition on complying with Local Rules to James’ legal team as well as prosecutors.

The Court also ORDERS all counsel to comply with Local Rule 57.1, whichprohibits any “lawyer, law firm, or law enforcement personnel associated with the prosecution or defense” from making or authorizing4 certain extrajudicial statements, including offering “[a]ny opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case,” subject to their professional obligations. E.D. Va. Crim. R. 57.1(C)(6). Any “lawyer who is participating . . . in the . . . litigation of [this] matter” may also have an ethical duty to refrain from making extrajudicial statements that pose a risk of prejudicing the proceeding. See ABA Model Rules of Prof’l Conduct R. 3.6 (2023).5

The footnotes to this passage decline to extend the local rules to Tish James herself, but does extend them to anything her attorneys advise her to say.

3 In its opposition to the motion, the government argues that the alleged statements regarding the grand jury proceedings do not “rise to the same level” as the defendant’s public statements proclaiming her innocence. ECF No. 30 at 5. The Court does not believe a comparison of the defendant’s public statements and the government’s interactions with the media does much to resolve any question presented here.

4 The parties do not discuss this point in their briefing, but the Court observes that the Local Rules’ prohibition on ‘authorizing’ extrajudicial statements would appear to apply to public statements a defendant might make with the advice of counsel—though Rule 57.1 binds only the lawyer, not the defendant.

5 The government argues that the defendant herself is subject to certain restrictions on her communication with the media because she is a “lawyer.” ECF No. 30 at 4 (quoting E.D. Va. Crim. R. 57.1(C)). But the Court finds that “lawyer” within the meaning of the Local Rules refers to a person practicing law in this district, not to any individual with a juris doctor degree or a bar license. Accordingly, this Order does not extend to the defendant’s speech as a defendant. But see supra n.2.

And he cites US v. Trump back at loaner AUSA Keller (making several copy and paste errors in the process) for the principle that defendants have more right to speak than the attorneys on the case.

At this stage of the litigation, the Court does not find that a restriction on the defendant’s own speech is necessary to ensure a fair trial for both sides. The Court certainly has the power to “control the speech and conduct even of defendants in criminal trials when necessary to protect the criminal justice process,” United States v. Trump, 88 F.4th 990, 1006 (D.C. Cir. 2023) (citing Nebraska Press, 427 U.S. 539, 553–54 (1976)). But so far, the government has not demonstrated that the defendant’s speech has risen to the level that it must be dampened in spite of her First Amendment rights in order to preserve a just legal process. See id. at 1008 (recognizing that “a criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against [t]he prosecution and the [criminal] trial process . . . .”).

One of the funniest part of Judge Walker’s opinion his how he refers to Lindsey the Insurance Lawyer’s unlawful role.

The motion criticizes alleged communications between a government attorney1and a member of the media via the encrypted messaging app Signal.

1 The status of the government attorney who made the alleged statements is the subject of a motion pending before the Honorable Cameron McGowan Currie. ECF No. 22. Thus, the Court will avoid referencing the role of the attorney in this case. Additionally, this Court generally does not refer to government attorneys by name. It will not depart from that practice here

“The Indictment Signer:” Lindsey Halligan’s Time in the Grand Jury

October 28, 2025/55 Comments/in Weaponized DOJ /by emptywheel

The loaner AUSA in the Tish James case, Roger Keller, has responded to Attorney General James’ request that they be ordered to follow the rules (he even authored his own document, unlike the Comey loaner AUSAs). I’ll come back to it but it is … inadequate to the task, though it cites liberally and faithlessly from the DC Circuit opinion upholding part of the gag on criminal defendant Donald Trump.

In any case, that may be far less important a development than the order that Judge Cameron McGowen Currie gave in both the James and Comey cases.

As happened with the other challenges to Trump’s unlawfully appointed US Attorneys, Currie (a senior judge from another District within the same Circuit) was appointed by Fourth Circuit Chief Judge Albert Diaz to preside over the challenge to Lindsey Halligan’s appointment. While Comey included Halligan’s appointment paperwork in his challenge, James (who filed hers before she got any discovery) did not.

In any case, Currie wants more. She ordered DOJ to file, “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.”

The undersigned has been appointed to hear this motion and finds it necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings. Accordingly, the Government is directed to submit, no later than Monday, November 3, 2025, at 5:00 pm, for in camera review, all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts. In camera review is appropriate given the secrecy requirements applicable to grand jury proceedings. Fed. R. Crim. P. 6(e)(2).

Currie may need these simply to understand what the remedy would be if she ruled for Comey and James. As far as we know (and as news reports cited in both motions claim), unlike other challenges to Trump’s unlawful US Attorney appointments, Halligan was the only one present for the presentment, meaning if her appointment is unlawful, the indictments have to go away. Both Comey and James are arguing for dismissal with prejudice, though the argument is less compelling in James’ case (because unlike Comey, the statute of limitations did not expire). So Currie needs to understand how much of the case relies on Halligan’s presence.

Whatever Currie’s goal, reviewing these transcripts will likely to be exceedingly damning for Halligan, whom Currie refers to not as the “interim US Attorney” or even (as James referred to her) as the “purported interim US Attorney,” but as the “indictment signer.”

After all, they will show that Dan Richman gave testimony that debunked the very premise of the indictment against Comey; such a review may show that Halligan simply neglected to share that transcript with grand jurors. More damning still, it’ll reveal the testimony of James’ great-niece, Nakia Thompson, describing that she has paid almost nothing in rent since she lived in the home James bought for her in 2020, undercutting the entire claim that Attorney General James was intending to use the house as an investment property. It’ll reveal that Halligan got an Alexandria grand jury to indict James, bypassing those grand jurors in Norfolk who had heard Thompson’s testimony.

But Judge Currie may find something else Comey argued compelling: that because Halligan was not lawfully authorized to be US Attorney, Halligan’s mere presence in the grand jury was a violation of grand jury secrecy.

Here, Ms. Halligan’s unlawful appointment tainted the structural integrity of the grand jury process. Absent Ms. Halligan’s unlawful title, she would not have been able to enter the grand jury room, let alone present and sign an indictment. Indeed, the Federal Rules of Criminal Procedure allow only “attorneys for the government” to be “present while the grand jury is in session,” Fed. R. Crim. P. 6(d)(1), and define such attorneys to include only “attorney[s] authorized by law to conduct” grand jury proceedings, Fed. R. Crim. P. 1(b)(1)(D) (emphasis added). Those rules implement the longstanding principle “that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings”—a principle that “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (citations omitted). By limiting participation to government attorneys “authorized by law,” Rules 1 and 6 maintain the secrecy of the grand jury proceeding and reinforce that an unlawfully appointed attorney’s presentation to the grand jury undermines the structure of that proceeding. The fundamental error here thus allows a presumption that Mr. Comey was prejudiced, “and any inquiry into harmless error would [require] unguided speculation.” Bank of Nova Scotia, 487 U.S. at 257.

Judge Currie may have very modest reasons for requesting these transcripts. But they will, almost inevitably, raise larger questions about both Halligan’s conduct, and that of the people who appointed her.