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Chad Mizelle’s Appearance of Impropriety

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Something funny happened before the hearing in the Emil Bove’s motion to dismiss Eric Adams’ case today (after a long exchange, Judge Dale Ho did not rule on the motion itself).

Pam Bondi’s Chief of Staff Chad Mizelle posted a very long thread on Xitter falsely pretending that this case was only about the single bribery charge against Adams. He focused closely on the way John Roberts’ court has rolled back bribery statutes.

For too long the DOJ has lost its way.

Prosecutorial misconduct and political agendas will no longer be tolerated.

The case against Mayor Adams was just one in a long history of past DOJ actions that represent grave errors of judgement.

This DOJ is going back to basics.

Prosecuting the mayor of America’s largest city raises unique concerns.

I want to focus on one aspect: The legal theories underpinning SDNY’s case and the particularly expansive reading of public corruption law adopted by the prosecutors in this action.

To win a bribery conviction against a public official, DOJ must show some official act in exchange for benefits — a quid pro quo. What is the official act alleged in this indictment?

Well, the main event took place before Adams was even Mayor.

In September 2021, when Adams was a candidate for office, [1] a person associated with the Turkish government allegedly asked Adams to help ensure the swift opening of a new Turkish consulate in NY in advance of a visit from Turkey’s leader.

So here is a key question: How do these facts as alleged in the indictment stack up against the case law? Let’s start with a history lesson.

EVERY TIME DOJ has pursued expansive theories of public corruption, the Department has been rebuked by the Supreme Court. Put simply, DOJ’s track record of public corruption cases at the Supreme Court is abysmal.

In 2024, DOJ lost 6-3 in Snyder v. US, where SCOTUS overturned the conviction of an Indiana mayor who was convicted of federal bribery in connection with supposedly illegal gratuities. The Court rejected DOJ’s theory that accepting gratuities constituted quid pro quo bribery.

The year before, in 2023, DOJ unanimously lost two cases in the Supreme Court—both brought by prosecutors in the U.S. Attorney’s Office for the Southern District of New York.

In Ciminelli v. United States, The Supreme Court unanimously tossed the wire fraud conviction in connection with former Governor Andrew Cuomo’s “Buffalo Billion” initiative, calling DOJ’s theory of criminal liability “invalid.”

And in Percoco v. United States, the Supreme Court unanimously rejected the government’s theory about when private citizens can be liable for honest-services fraud in a case involving Governor Cuomo’s former executive secretary.

By the way, both Ciminelli and Percoco were decided on the same day, May 11, 2023. What a stunning rebuke to the US Attorney’s Office in the Southern District of New York — Losing 18-0 in a single day.

Then there is Kelly v. United States from 2020, unanimously overturning the conviction of New Jersey officials involved in the so-called “Bridgegate” matter by, again, faulting the government for defining federal fraud too broadly.

Before then, SCOTUS unanimously repudiated the United States’ prosecution of Gov. Bob McDonnell in 2016, again faulting DOJ’s expansive theories of bribery. SCOTUS in Skilling v. United States in 2010 similarly rejected DOJ’s theory of honest-services fraud as overly broad.

And finally, when DOJ prosecuted Senator Ted Stevens for failing to report gifts, DOJ ended up having to dismiss the indictment even after obtaining a conviction, because prosecutors egregiously failed to disclose material evidence to the defense.

Clearly, this history and case law underscores the legal risks associated with prosecuting Mayor Adams. DOJ could win a bribery conviction against a public official only by showing some official act in exchange for benefits.

The alleged official act in the indictment, however, took place before Adams was mayor. And one of the main benefits that the Mayor allegedly received was campaign contributions. [2] But all successful politicians, no matter the party, receive campaign contributions.

In the Adams case, SDNY was rolling the dice. And given the DOJ’s abysmal history of losing at the Supreme Court, the odds were against the DOJ. Even the district judge said at a recent hearing that there was “some force” to Adams’s challenges to the gov’ts central legal theory.

The government must tread particularly carefully before classifying contributions a crime given the First Amendment implications of such a theory.

Additionally, the amount of resources it takes to bring a prosecution like this is incredible — thousands and thousands of man hours. Those resources could better be used arresting violent criminals to keep New York safe or prosecuting gang and cartel members.

Given the history, DOJ had to decide—among other issues—whether to keep going down a road that the Supreme Court has viewed with skepticism on numerous occasions. Dismissing the prosecution was absolutely the right call. END.

• • •

Mizelle is not wrong, at all, about the Roberts’ court’s disinterest in public corruption. They are, at least some of them, aficionados of it!

But along the way, Mizelle addressed only the bribery charge — the sole charge that Adams’ lawyers moved to dismiss.

Even there, Mizelle was playing loose with the record. The quote (from Judge Ho’s opinion rejecting the challenge) that Adams’ argument has “some force” only applies to one of two theories of bribery adopted by SDNY.

Mayor Adams takes particular issue with the Government’s first theory, arguing that— even leaving aside Snyder—being “influenced in connection with the City of New York’s regulation of the Turkish House” is simply too general or vague to constitute the requisite quo for bribery under § 666. Def. Reply Br. at 6–7; see also Def. Br. at 11. He contends that the words “business,” “transaction,” and “series of transactions” in § 666 refer to “specific and concrete governmental actions, not abstract or general objectives.” Def. Br. at 10. He further argues that to the extent the word “business” could be read broadly, it should not be—because that would render the terms “transaction” and “series of transactions” superfluous. Id. Adams seeks, in effect, to imbue the quo element of § 666 with a degree of specificity that, even if not identical to McDonnell’s “official act,” embodies a “core requirement [that] would be the same: . . . a specific and formal exercise of governmental power.” Def. Br. at 10.

Mayor Adams’s arguments on this point have some force.

Judge Ho didn’t say the same about the theory that Adams paid off Türkiye’s favors by helping them get into their new consulate.

Separately, regardless of whether the “regulation” of the Turkish House is specific enough to form the requisite quo at the indictment stage, there is no real dispute that the issuance of a TCO is a specific and formal exercise of governmental power

Furthermore, Mizelle claimed at [1] that Adams was just a candidate. While Adams was not yet Mayor (though he had won the Democratic primary) he was Borough President when he sent some texts to get the FDNY to approve the building. As Judge Ho noted in his opinion, whether Adams used his authority as Borough President to deliver a quo to Türkiye was a matter for a jury to decide.

Mayor Adams makes a separate but related argument that, even if formal authority is unnecessary, a pressure theory still requires that a defendant “us[e] his official position to exert pressure on another official.” McDonnell, 579 U.S. at 574 (emphasis added). Adams contends that the Indictment fails to allege that any pressure he exerted on the FDNY stemmed from his official position as Brooklyn Borough President. See Def. Br. at 19. Rather, he argues, “the government is effectively claiming that Adams used his potential future position as Mayor to exert pressure on officials.” Id.

But the Indictment alleges that, “as Brooklyn Borough President, [Adams] met with members of the FDNY from time to time,” Ind. ¶ 38a, and the Government argues that it will prove at trial that it was Adams’s position as Brooklyn Borough President that “[got] him in the room, as it were, with the fire commissioner” in order to exert pressure regarding the TCO. Tr. at 33; see also id. at 34 (arguing that the jury could conclude that “the defendant was using his official position as Brooklyn Borough president to let him reach out [to] the fire commissioner on city business with the mayor, that’s what got him a room”). Ultimately, whether or not Adams used his official position as Brooklyn Borough President to exert pressure on the FDNY is a factual question for a jury to resolve.

So even on the bribery count, Mizelle was playing loose with the record.

But then he dismissed the other allegations in the indictment — which, again, Adams’ lawyers didn’t challenge as a matter of law — which include wire fraud, soliciting straw donors, and accepting illegal campaign contributions from foreigners, as mere campaign donations.

Pam Bondi’s Chief of Staff treated gifts from foreign powers as if they’re totally legal.

Noted.

That far, anyway, Chad Mizelle’s little screed looked thoroughly dishonest. But I didn’t doubt his — and by extension, DOJ’s — opposition to the enforcement of bribery statutes.

But at 2:37 ET, shortly after I was reading the rant Mizelle posted at 12:42, I was alerted to this development: an information setting up a one count guilty plea by former DC official Dana McDaniel, in a scheme that is almost certainly related the charges filed against former DC Council Member Trayon White last September. The information was signed by Acting DC US Attorney Ed Martin, one of Pam Bondi’s trusted operatives.

Pam Bondi’s DOJ doesn’t have a categorical opposition to bribery charges, it turns out.

Only bribery charges against those from whom they want something in exchange.

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Did Pam Bondi Bury the Election Day Bomb Threats?

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The other day, Pete Hegseth capitulated to Vladimir Putin, dealing away Ukraine’s future and leverage, making Neville Chamberlain look not only stronger, but better dressed, by comparison.

He tried to walk back his capitulation the next day.

Everything is on the table in his conversations with Vladimir Putin and Zelenskyy. What he decides to allow or not allow is at the purview of the leader of the free world of President Trump. So I’m not going to stand at this podium and declare what President Trump will do or won’t do, what will be in or what will be out, what concessions will be made or what concessions are not made.

Remember, in response to questions from Tammy Duckworth, Hegseth confessed he had never been part of international negotiations. In his first day and second days learning on the job, he failed every rule of negotiation.

I may return to Pete Hegseth’s predictable failures.

For now, though, I want to note all the things put in place before Trump seemingly turned on a dime, effectively demoting his Ukraine negotiator Keith Kellogg in favor of Marco Rubio, John Ratcliffe, Mike Waltz, and Steve Witkoff (who has been liaising with people like Mohammed bin Salman and — reportedly, Kirill Dmitriev from Mueller Report fame) and taking a much more pro-Russian stance in this negotiation.

Between Trump, Attorney General Pam Bondi, and DHS Secretary Kristi Noem, they have protected precisely the kind of interference and corruption with which Russia kicked off Trump’s political career ten years ago. These moves have been covered already (see this post from Casey Michel and this from Cyberscoop). But I want to look at the kinds of DOJ and CISA actions against which Trump’s team may be reacting, not least because this pivot from Trump did not happen until they were all in place.

Non-prosecution of FCPA: Start with the decision to first limit (in Bondi’s adoption) and then pause (in Trump’s adoption, in a later Executive Order) prosecution of the Foreign Corrupt Practices Act, a law that prohibits businesses with a presence in the United States from engaging in bribery. Bondi actually put this provision in a memo otherwise eliminating approval requirements for investigations and prosecutions targeting trafficking, and with regards to FCPA, simply made using FCPA against traffickers the priority.

Foreign Corrupt Practices Act. The Criminal Division’s Foreign Corrupt Practices Act Unit shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection. Examples of such cases include bribery of foreign officials to facilitate human smuggling and the trafficking of narcotics and firearms.

Trump, on the other had, halted its use for six months and then maybe another six months.

Most coverage of this move noted its use, under Trump, to penalize Goldman Sachs for bribing Malaysia’s 1MDB sovereign wealth fund, an investigation the aftermath of which sucked in Trump associate Elliott Broidy before Trump pardoned him. But it might be better to consider how such bribery statutes limit transnational investment companies like Trump’s own and Jared Kushner’s. That is, Trump’s intervention in FCPA might be personal to Trump.

Elimination of KleptoCapture Task Force: In the same memo, buried under a shift of focus for Money Laundering cases to traffickers and away from Trump’s buddies, Bondi also included this language about the KleptoCapture program that has been a key prong of Joe Biden and Merrick Garland’s response to the Ukraine invasion.

Money Laundering and Asset Forfeiture. The Criminal Division’s Money Laundering and Asset Recovery Section shall prioritize investigations, prosecutions, and asset forfeiture actions that target activities of Cartels and TCOs.

Task Force KleptoCapture, the Department’s Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative, shall be disbanded. Attorneys assigned to those initiatives shall return to their prior posts, and resources currently devoted to those efforts shall be committed to the total elimination of Cartels and TCOs.

It’s not yet clear whether this means DOJ will start giving yachts back to the sanctioned Russian oligarchs that Biden seized them from.

But what this does imply is that the sanctioned oligarchs who had invested in property and other facilities in the US — people like Oleg Deripaska and Andrii Derkach, both of whom were identified to have ties to Russian influence operations in election years — might be free to invest in the US again.

Shift away from FARA: Buried in Section IV of a different memo innocuously titled “General policy regarding charging, plea negotiations, and sentencing,” are two paragraphs describing changes in the National Security Division’s focus.

Shifting Resources in the National Security Division. To free resources to address more pressing priorities, and end risks of further weaponization and abuses of prosecutorial discretion, the Foreign Influence Task Force shall be disbanded. Recourse to criminal charges under the Foreign Agents Registration Act (FARA) and 18 U.S.C. § 951 shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors. With respect to FARA and § 951, the Counterintelligence and Export Control Section, including the FARA Unit, shall focus on civil enforcement, regulatory initiatives, and public guidance.

The National Security Division’s Corporate Enforcement Unit is also disbanded. Personnel assigned to the Unit shall return to their previous posts.

Let’s take them in reverse order. The FARA statement basically says that only people akin to spies will be charged criminally with it; everyone else will be subject to the same civil sanctions DOJ used before the Paul Manafort case. That of course means Manafort’s ongoing work is in the clear (a point that Ken Vogel makes in a column hilariously titled, “Moves by Trump and Bondi Raise Hopes of Those Accused of Foreign Corruption“). It also makes things far easier for Pam Bondi’s former colleagues at Ballard Partners, the most powerful foreign influence peddlers under the first and undoubtedly the second Trump term. This will save Bondi’s friends a whole lot of money in compliance worries.

But here’s the problem with this move: Most of the people DOJ has charged with criminal FARA in recent years were being handled by foreign spies. FARA, as it was used under Mueller and since, was a way to neutralize people for being in the pay of foreign spies without having to prove — or having to declassify evidence to show — that they were themselves spies. It was a way to disable spying, even or especially if people receiving foreign money didn’t know they were being handled by spies.

But Bondi just said she won’t use that tool.

Elimination of FITF: I might have written this post weeks ago, except I keep staring at Bondi’s claim that the Foreign Influence Task Force (the website for which has been taken down) led to “abuses of prosecutorial discretion.” Now, Bondi often parrots the stupidest bullshit that Jim Jordan has floated (which includes a lot of false claims made by Matt Taibbi), and this may be an example — because FITF would not lead to prosecution of a US person, as I tried to lay out in this table (which first appeared in this post).

What the FITF did was to identify attempts by foreigners to clandestinely influence Americans (not just during elections). It played a key role in funneling intelligence to the private sector, especially social media companies. While the government has charged foreigners involved in such operations (such as the Iranians who hacked Trump’s campaign), Americans would almost always be victims.

Based on that assumption, I can only imagine Bondi’s reference to “abuses of prosecutorial discretion” pertains to one of three possible prosecutions:

  • The prosecution of Douglass Mackey for duping Hillary Clinton voters into “texting” their vote rather than voting in person, a prosecution that in later years might have arisen out of election protection efforts (the second row in this table) put in place in the wake of 2016.
  • A warning about the Andrii Derkach influence operation in 2020, which was managed by FITF, and which led the FBI to shut down some informants sharing information on Hunter Biden. Importantly, the entire right wing believes that a FITF staffer, Laura Dehmlow, should have breached the confidentiality of a non-public investigation in 2020 and told Facebook that the hard drive shared with New York Post derived from a Hunter Biden laptop in the FBI’s possession was “real” (notwithstanding that the FBI had not, and still has not, done the most basic things to test if it was packaged up). So it’s possible that Bondi believes, like Jim Jordan does, that the outcome of the Hunter Biden investigation would have been different if they could have relied more on the laptop.
  • The Tenet operation, in which the RT funded right wing propagandists Dave Rubin, Tim Pool, and Benny Johnson. The operation was exposed with an indictment of foreigners shortly before the pre-election halt to such actions, but not even Canadian Lauren Chen has been charged, much less the right wing bros. That indictment, for money laundering and FARA, might not be viable under Bondi’s new restrictions on other prosecutorial focus.

But there are a whole bunch of things you throw out with that bathwater. If the FITF is disbanded, then social media companies might not have discovered that Iran was adopting the identities of the Proud Boys to suppress turnout among people of color. There’s the ongoing Doppelganger effort to create counterfeit versions of real US and European media outlets to spread disinformation — such as an attack on USAID that Elon Musk spread just days ago.

Or there’s the multiple influence operations that Jack Posobiec has been party to, starting with PizzaGate (the weaponization of the Podesta emails stolen by the GRU), the GRU MacronLeaks operation, as well as a more recent FSB campaign. Posobiec’s centrality to all this — as well as his involvement in other kinds of rat-fucking — is particularly pertinent because Pete Hegseth at least invited Jack Posobiec to travel with him to the Munich Security Conference where he sold Ukraine out.

Trump administration officials at the Pentagon invited a far-right activist, Jack Posobiec, to participate in Defense Secretary Pete Hegseth’s first trip overseas, according to a planning document obtained by The Washington Post and people familiar with the decision, triggering alarm among U.S. defense officials worried about the military being dragged into partisan warfare.

Posobiec was in Ukraine yesterday — it’s not yet clear whether he traveled to Europe with the Defense Secretary.

The most charitable explanation for Bondi’s decision to shut down FITF is that she’s suffering from delusions that Jim Jordan passed on. But if she really understands what this program did, then she has deliberately chosen to make it easier for hostile countries, especially Russia, China, and Iran, to affect US elections.

Administrative Leave of CISA Election Security Staff: Which brings me to the most recent effort to help foreign adversaries, something done by Kristi Noem, not Pam Bondi. On Monday, 17 of the people who were involved in keeping the 2024 election secure were put on leave, citing a focus on election disinformation.

In recent days, 17 employees of the U.S. Cybersecurity and Infrastructure Security Agency who have worked with election officials to provide assessments and trainings dealing with a range of threats — from cyber and ransomware attacks to physical security of election workers — have been placed on leave pending a review, according to a person familiar with the situation who was not authorized to speak publicly.

Ten of those employees are regional election security specialists hired as part of an effort to expand field staff and election security expertise ahead of the 2024 election. The regional staffers were told the internal review would examine efforts to combat attempts by foreign governments to influence U.S. elections, duties that were assigned to other agency staff, according to the person.

All were former state or local election officials who were brought in to build relationships across all 50 states and the nation’s more than 8,000 local election jurisdictions. They spent the past year meeting with election officials, attending conferences and trainings, and ensuring officials were aware of the agency’s various cybersecurity and physical security services.

[snip]

The other staffers placed on leave are current or former members of the agency’s Election Security and Resilience team, who were told the review was looking into agency efforts to combat misinformation and disinformation campaigns, according to the person familiar with the situation. The 10 election security specialists who worked with state and local election officials reported to a different team at CISA, the field operations division.

Now, the rationale offered for this decision is a review of CISA’s involvement in warnings about mis- and disinformation. As noted above, that’s not what CISA does. To the extent it shares information with social media companies, it is to provide correct information to make it easier for people to get quality information on voting.

But consider something that these 17 people might have been involved in: the effort, in real time, to respond to bomb threats called into electoral precincts in Democratic areas, many of which were sourced to Russian email domains. (Remember that Ohio Governor Mike DeWine attributed the bomb threats in Springfield — threats ginned up with the significant involvement of Jack Posobiec — to overseas actors.)

We still don’t know whether the bomb threats targeting Springfield and voting locations actually were Russian operations or whether they were funneled through Russia by American actors to obscure their origin. We still don’t have a report from the FBI explaining what happened.

And with the decision to shut down both the FITF and to pause CISA’s election protection work, we may never get it now. We may never learn whether Democratic precincts had to shut down due to Russian involvement or that of people laundering their work through Russia.

In the wake of Trump’s victory, key Putin advisor Nikolai Patrushev claimed that, to win, Trump “relied on certain forces to which he has corresponding obligations.”

In his future policies, including those on the Russian track US President-elect Donald Trump will rely on the commitments to the forces that brought him to power, rather than on election pledges, Russian presidential aide Nikolay Patrushev told the daily Kommersant in an interview.

“The election campaign is over,” Patrushev noted. “To achieve success in the election, Donald Trump relied on certain forces to which he has corresponding obligations. As a responsible person, he will be obliged to fulfill them.”

He agreed that Trump, when he was still a candidate, “made many statements critical of the destructive foreign and domestic policies pursued by the current administration.”

“But very often election pledges in the United States can iverge from subsequent actions,” he recalled.

When he gave that ominous warning, I concluded that Trump would soon sell out Ukraine and the rest of Europe. But that didn’t happen right away. Rather, for months, Trump feigned a hardline stance against Russia, all while teasing the number of calls he was having with Putin.

Until this week.

Trump didn’t move to “fulfill” the “corresponding obligations” he made to get help in the election, if indeed he did get help, until Pam Bondi instructed DOJ not to look for such things.

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Emil Bove’s Prisoner Exchange

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The Acting US Attorney for SDNY, Danielle Sassoon, who was hand-picked by Trump’s people, resigned today rather than do the dirty bidding of Trump’s defense attorney (and disgruntled former SDNY AUSA) Emil Bove, by dismissing the case against Eric Adams.

After she resigned, two attorneys in DOJ’s Public Integrity Division, Kevin Driscoll and John Keller, joined her rather than dismiss the case.

A letter, yesterday, from Sassoon to Pam Bondi and another, today, from Bove to Sassoon document much of what happened.

Sassoon documents that Bove likened the dismissal of charges against Adams to the Viktor Bout prisoner exchange (something that was in his original letter).

Mr. Bove proposes dismissing the charges against Adams in return for his assistance in enforcing the federal immigration laws, analogizing to the prisoner exchange in which the United States freed notorious Russian arms dealer Victor Bout in return for an American prisoner in Russia. Such an exchange with Adams violates commonsense beliefs in the equal administration of justice, the Justice Manual, and the Rules of Professional Conduct. The “commitment to the rule of law is nowhere more profoundly manifest” than in criminal justice. Cheney v. United States Dist. Ct., 542 U.S. 367, 384 (2004) (alterations and citation omitted). Impartial enforcement of the law is the bedrock of federal prosecutions. See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (1940). As the Justice Manual has long recognized, “the rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence.” JM § 1-8.100. But Adams has argued in substance—and Mr. Bove appears prepared to concede—that Adams should receive leniency for federal crimes solely because he occupies an important public position and can use that position to assist in the Administration’s policy priorities.

[snip]

Adams’s advocacy should be called out for what it is: an improper offer of immigration enforcement assistance in exchange for a dismissal of his case. Although Mr. Bove disclaimed any intention to exchange leniency in this case for Adams’s assistance in enforcing federal law,1 that is the nature of the bargain laid bare in Mr. Bove’s memo. That is especially so given Mr. Bove’s comparison to the Bout prisoner exchange, which was quite expressly a quid pro quo, but one carried out by the White House, and not the prosecutors in charge of Bout’s case.

The comparison to the Bout exchange is particularly alarming. That prisoner swap was an exchange of official acts between separate sovereigns (the United States and Russia), neither of which had any claim that the other should obey its laws. By contrast, Adams is an American citizen, and a local elected official, who is seeking a personal benefit—immunity from federal laws to which he is undoubtedly subject—in exchange for an act—enforcement of federal law—he has no right to refuse. Moreover, the Bout exchange was a widely criticized sacrifice of a valid American interest (the punishment of an infamous arms dealer) which Russia was able to extract only through a patently selective prosecution of a famous American athlete.2 It is difficult to imagine that the Department wishes to emulate that episode by granting Adams leverage over it akin to Russia’s influence in international affairs. It is a breathtaking and dangerous precedent to reward Adams’s opportunistic and shifting commitments on immigration and other policy matters with dismissal of a criminal indictment. Nor will a court likely find that such an improper exchange is consistent with the public interest. See United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie (“Nederlandsche Combinatie”), 428 F. Supp. 114, 116-17 (S.D.N.Y. 1977) (denying Government’s motion to dismiss where Government had agreed to dismiss charges against certain defendants in exchange for guilty pleas by others); cf. In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (describing a prosecutor’s acceptance of a bribe as a clear example of a dismissal that should not be granted as contrary to the public interest).

[snip]

In particular, the rationale given by Mr. Bove—an exchange between a criminal defendant and the Department of Justice akin to the Bout exchange with Russia—is, as explained above, a bargain that a prosecutor should not make. Moreover, dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams’s cooperation with enforcing the immigration laws proves unsatisfactory to the Department. See In re Christoff, 690 N.E.2d 1135 (Ind. 1997) (disciplining prosecutor for threatening to renew a dormant criminal investigation against a potential candidate for public office in order to dissuade the candidate from running); Bruce A. Green & Rebecca Roiphe, Who Should Police Politicization of the DOJ?, 35 Notre Dame J.L. Ethics & Pub. Pol’y 671, 681 (2021) (noting that the Arizona Supreme Court disbarred the elected chief prosecutor of Maricopa County, Arizona, and his deputy, in part, for misusing their power to advance the chief prosecutor’s partisan political interests). Finally, given the highly generalized accusations of weaponization, weighed against the strength of the evidence against Adams, a court will likely question whether that basis is pretextual. See, e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors, 228 F. Supp. 483, 487 (S.D.N.Y. 1964) (courts “should be satisfied that the reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based”).

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

2 See, e.g., https://thehill.com/homenews/3767785-trump-pans-prisoner-swap-brittney-grinerhates-our-country/.

In response, Bove suggested that DOJ was adopting an unreviewable judgement of “weaponization” in disciplining lawyers.

The weaponization finding in my February 10, 2025 memorandum was made pursuant to a policy set forth by President Trump, who is the only elected official in the ExecutiveBranch, in connection with a decision that was authorized by the Senate-confirmed Attorney General ofthe United States, and entirely consistent with guidance issued by the Attorney General shortly after that confirmation. Your Office has no authority to contest the weaponization finding, or the second independent basis requiring dismissal set forth in my memorandum. The Justice Department will not tolerate the insubordination and apparent misconduct reflected in the approach that you and your office have taken in this matter.

You are well aware of the Department’s weaponization concerns regarding the handling of the investigation and prosecution of Mayor Adams. Those concerns include behavior that supports, at minimum, unacceptable appearances of impropriety and the politicization of your office. The investigation was accelerated after Mayor Adams publicly criticized President Biden’s failed immigration policies, and led by a former U.S. Attorney with deep connections to the former Attorney General who oversaw the weaponization ofthe Justice Department. Based on my review and our meetings, the charging decision was rushed as the 2024 Presidential election approached, and asthe former U.S. Attorney appears to have been pursuing potential political appointments in the event Kamala Harris won that election.

I’ve been wondering for some time when Bove would wildly overstep with his aggressiveness. He’s now facing documentation that supports a quid pro quo seeking political favors. And in response, he suggested his recourse is to adopt a label — weaponization — with no due process.

Trump may yet get his quid pro quo (though Judge Dale Ho now has abundant reason to refuse to dismiss this case).

But he may lose DOJ as a result.

Update: Note that the same day Sassoon sent the letter to Bondi, Bondi sued Tish James. And as this was going on, Trump rescinded FEMA funding for NY.

Those likely are not unrelated.

Update: NYT has published the original letter instructing Sassoon to dismiss the case.

 

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Rule of Law: Don’t Obey in Advance, But Also Don’t Give Up in Advance

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For some time, we’ve all been assuming that Trump will defy court orders reining in his assault on the government. And then, in the wake of Judge Paul Engelmayer’s order enjoining Scott Bessent from altering Treasury’s payment system before Friday, JD Vance ran his mouth, convincing everyone that that moment is already here.

Overnight, filings in at least two of the lawsuits against Trump’s attacks suggests that Trump is, at least for now, complying.

  • In the Rhode Island case in which states enjoined OMB from withholding government grants the government filed a response describing, among other things, how they’ve worked to ensure payments to Oregon continue.
  • In the New York lawsuit, also brought by states, DOJ asked for clarification of the scope of Engelmeyer’s order and opposed the breadth of it (noting, that there were contractors who did work on the system and also listing some senior Treasury officials, political appointees, who needed access). With that, Thomas Krause submitted a declaration saying he’s the only Special Government Employee who currently has permission to access the system (meaning they’re also complying with Colleen Kollar-Kotelly’s order in DC), but also revealing that Marko Elez — the DOGE boy who was included in Kollar-Kotelly’s order — has not returned to Treasury. Krause even notes (as I did) that the order to destroy what Elez has done likely conflicts with the order Kollar-Kotelly issued.

DOJ is pushing at the terms of the orders limiting government actions. But it at least claims it is complying.

There is other conflicting evidence about implementation. I have also seen reports that USAID people stationed overseas were having their access to communications systems restored, in compliance with Carl Nicoles’ order. But WaPo reports that the Administration continues to process resignations in potential defiance of George O’Toole’s order halting the Fork in the Road program.

I don’t doubt that at some point Trump will defy the courts. But for a number of reasons, I suspect they won’t outright defy judges yet.

One main reason is obvious: Trump and Russ Vought want John Roberts to grant him the authority to — basically — neutralize Congress’ power of the purse. To do that, he needs a clean appellate record. So he has to go through the process of engaging in good faith (even while arguing, as he did in his response to the Engelmeyer order, for a maximal theory of Executive power).

Another reason likely has to do with Pam Bondi. She has her own malign goals for DOJ, such as a likely assault on medical abortion pills, both between and within states. Plus, she is pursuing Trump’s attacks on sanctuary states.

But to use DOJ for these policy purposes, there has to be a DOJ, with attorneys more competent and experienced in Federal litigation than Ed Martin, the Acting US Attorney in DC. With the possible exception of the birthright citizenship defense, DOJ has real AUSAs fighting these cases, AUSAs who are going to be unwilling to risk their bar license on frivolous legal arguments or lies.

Finally, I think DOJ is in a risky situation in its confrontation with attorneys and FBI personnel. Ben Wittes noted recently, the Administration needs the FBI, in ways it doesn’t need USAID personnel, at least not in the same potentially catastrophically visible way they need the FBI.

The FBI rank and file have power in this equation that other agencies, such as USAID, for example, do not have. The Trump administration does not need USAID. It wants to eliminate foreign aid anyway, so if the personnel at the aid agency get uppity, who cares? And if they quit? All the better.

The FBI is not that simple. For one thing, the administration does need law enforcement. If there’s a terrorist attack, and there will be, and the FBI is not in a position to prevent it or investigate it quickly and effectively, the administration will take the blame.

This administration also draws its legitimacy from backing the blue. Even in their war on the intelligence community, Donald Trump and his people always tried to distinguish between the rank and file and the “bad apples” who were running things. Waging a full-scale war against the nation’s premier law enforcement agency, a war that is all about targeting street agents for having done their jobs, is a dangerous game—far different from sacking an FBI director, or even two, who went to some elite law schools and served at the upper levels of the Justice Department.

Then there’s the problem of capacity. FBI agents are actually very hard to replace—good ones are, anyway. The physical demands are significant. Most have specialized education of one sort or another. And while people often imagine FBI agents as glorified cops who kick doors down, the truth is that a lot of agents have exquisitely specialized expertise. The training of a good counterintelligence agent takes many years. Some agents have specialized scientific training. There are even agents who specialize in art theft. Take out a thousand FBI personnel for political reasons, and you destroy literally centuries of institutional capacity. A good FBI agent is much harder to create than, say, a good assistant U.S. attorney.

The confrontation with FBI has allowed accidental hero, Brian Driscoll (who is only serving as Acting Director as opposed to Acting Deputy Director because the White House made an error), has played this well, including by raising his own profile and the successes of the FBI.

That hasn’t stopped DOJ from demanding loyalty pledges, in the form of treating the mob that violently attacked cops and the Capitol as more patriotic than the cops themselves or the Members of Congress who did their duty — effectively (though WaPo doesn’t make this clear) forcing FBI agents to disavow treating a violent attack as a crime. But that, in turn, risks real backlash.

To be sure, there’s a lot of garbage that’s being dealt here. DOJ told Colleen Kollar-Kotelly that DOGE at that point only had read-only access to Treasury data (which Anna Bower recognized as an attempt to parse). But a footnote in the overnight filing in New York confesses that’s false.

Since January 20, 2025, one other Treasury employee—Marco Elez—had “read only” access to or copies of certain data in BFS payment systems, subject to restrictions, and access to a copy of certain BFS payments systems’ source code in a “sandbox” environment. Krause Decl. ¶ 11. Mr. Elez resigned on February 6, 2025 and returned all Treasury and BFS equipment and credentials the same day. Id.

That footnote cites Krause’s declaration. But the bit about the sandbox copy is not in the cited paragraph.

Since January 20, 2025, one other Treasury non-career employee—Marko Elez—had access to BFS payment systems and payment data covered by the order. Mr. Elez resigned on February 6, 2025, and returned all Treasury and BFS equipment and credentials the same day. Treasury staff have quarantined and disabled access to all devices and accounts used by this individual, which can now only be accessed by civil servants with a need for access to perform their job duties within the BFS who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations. Further, based on technical controls in place, BFS oversight of Mr. Elez’s work, instructions provided to Mr. Elez regarding proper data handling, and subsequent technical review of his activities, I currently have no reason to believe Mr. Elez retains access to any BFS payment data, source code, or systems. I am concerned that deleting the contents of these accounts and devices would violate Treasury’s document preservation duties in connection with related litigation entitled Alliance for Retired Americans, et al. v. Bessent, et al., Civil Action No. 25-0313 (CKK) (D.D.C.).

Similarly, an OPM suit may well prove that DOJ has misrepresented other claims to courts. And as the FBI lawsuits hung overnight, DOJ forced Driscoll to provide names of all the FBI Agents who worked on January 6 cases.

But these discrepancies may well be useful. At the very least, it provides cause for the AGs to insist that Krause appear before Judge Jeannette Vargas, the judge assigned to the case (who ordered the parties to try to clarify Saturday’s order) to explain what Elez was doing with his sandbox and why anyone should believe he hasn’t been rehired, somewhere, to play in his sandbox some more. That, in turn, would support the very cybersecurity arguments that various lawyers are trying to make. And it’ll advance the reporting already going on.

JD Vance might well like to simply ignore Engelmeyer’s order. Mike Davis might want Trump to appeal this immediately to SCOTUS. Trump might want to start siccing his mob on judges.

But there are good reasons to believe that that won’t happen, yet — at least not until Trump gets a few more of his national security and DOJ nominees through the Senate.

And until then, this legal process is a tool — a tool that can be used to buy time, but also a tool to use to hem in Trump’s mob.

Update: In RI, John McConnell issued what is likely the first, “no really, you have to follow my orders” order.

Update: DOJ has appealed McConnell’s order, even though it is not ripe.

Meanwhile DOJ has filed really long filings in DC in an attempt to persuade Carl Nichols to reverse his TRO in the USAID example, basically slandering unnamed professionals left and right. Things do look more dire, because Trump is basically refusing to fund blue states until SCOTUS tells him to–and maybe even not then. Meanwhile, Senate Republicans have simply capitulated to Trump’s insane nominees.

Update: Above I noted that DOJ needs career AUSAs to make these arguments, at least for a while.

Well, in the USAID case, those career AUSAs just had to cop to two, um, errors. The bigger one was the central dispute at the hearing last week: Whether USAID had only frozen prospective contracts, or all of them

Additionally, although Secretary Rubio’s January 24, 2025 directive only froze future contract obligations, id. ¶ 3, payments on existing contracts were paused as well as part of efforts by agency leadership to regain control of the organization’s spending and conduct a comprehensive review of its programs. See id. ¶¶ 5–10. Counsel for Defendants was unaware of this development prior to the hearing. [my emphasis]

This implies that Peter Marocco froze existing contracts without the authority of Marco Rubio. And he’s accusing USAID personnel of being insubordinate.

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Two Days In, Pam Bondi’s DOJ Is Already an Ethical Swamp

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Reuters was the first to track the travails of Ed Martin, the Jan6 riot attendee turned US Attorney for DC who moved to dismiss the prosecution of one of his clients on January 21, and only two weeks later, on February 4, moved to withdraw from the case.

On January 6, 2021, Martin posted on X, then called Twitter, that he was at the Capitol himself, describing the day as “Like Mardi Gras in DC today: love, faith and joy.”

Before becoming Washington’s top prosecutor, he appeared as an attorney for three people convicted of participating in the riot, according to court records. Two of those cases ended before Trump took office; the third, against Joseph Padilla, was still ongoing on January 21 when Martin’s office filed a motion bearing his name asking a court to drop the charges.

State rules in Missouri, where Martin is licensed, bar government lawyers from handling cases involving their clients without written consent.

A spokesperson for the U.S. Attorney’s office did not immediately respond to a request for comment. A private spokesperson for Martin said he is in complete compliance with the requirements for his position.

On Wednesday, Martin sent an office-wide email seen by Reuters in which he said he had “stopped all involvement” in the cases more than a year and a half ago, that he had handled them pro bono, and said he was “under the impression that I was off the cases.”

He said the U.S. Attorney’s career ethics lawyer asked him about the cases last week and complained that it “immediately leaked to the media.” This leak, he said, was both “personally insulting” and professionally “unacceptable.”

When Martin did finally move to drop off the case he had gotten dismissed weeks earlier, he offered the kind of dumb excuse you expect from a Trump flunkie.

Undersigned counsel respectfully moves the Court to withdraw as a counsel of record in this matter.

Mr. Padilla noticed his appeal in this case in September 2023. ECF No. 108. From that point forward, he was represented by an attorney working with the Office of the Federal Public Defender in New Mexico. That defender entered her appearance in this case on November 1, 2024. ECF No. 122. Although undersigned counsel has not represented Mr. Padilla in connection with postconviction litigation, counsel remains listed as counsel of record on the docket. Accordingly, as the case has now been dismissed, and as the undersigned does not currently represent Mr. Padilla, counsel requests that the Court grant this motion so the docket may accurately reflect this fact. This motion has been served upon the defendant personally. LCrR 44.5(d). Mr. Padilla has no objection to this motion.

It turns out the DC Bar membership for the Acting US Attorney for DC lapsed. His Bar membership is not in good standing.

Case Name: USA v. PADILLA
Case Number: 1:21-cr-00214-JDB

Filer:
Document Number: No document attached
Docket Text:

NOTICE of Provisional/Government Not Certified Status re [126] Proposed MOTION to Withdraw as Attorney Edward Martin by Edward Martin. by JOSEPH LINO PADILLA. (Martin, Edward).

Your attorney renewal/government certification has not been received. As a result, your membership with the U.S. District & Bankruptcy Courts for the District of Columbia is not in good standing, and you are not permitted to file. Pursuant to Local Criminal Rule 57.21.1, you must immediately correct your membership status by following the appropriate instructions on this page of our website: https://www.dcd.uscourts.gov/attorney-renewal.

Please be advised that the presiding judge in this case has been notified that you are currently not in good standing to file in this court. Renewal Due by 2/12/2025. (zhcn)

It further turns out that when Martin wrote a very angry letter to Judge Amit Mehta telling him the Oath Keeper seditionists whose sentences Trump commuted, but did not pardon, should have no release conditions, he signed that letter over his DC Bar Membership, which we’ve now learned was not in good standing a few weeks later.

It’s a big mess. The activist group that has gotten some of Trump’s other January 6 lawyers sanctioned is trying to make it a bigger mess, at least in Missouri, which specifically prohibits playing both sides of a legal issue.

Activist legal group the 65 Project filed a bar complaint on Thursday against Edward Martin, interim U.S. Attorney for the District of Columbia, in Missouri, where he is licensed to practice law, a day after Reuters reported the potential conflict.

Martin last month asked a judge to drop charges against a man who took part in the January 6, 2021, Capitol assault whom he also represented as a defense attorney, after Trump on his first day in office granted clemency to all the nearly 1,600 people charged with playing a role in the riot.

Lawyers generally are prohibited from taking both sides in the same case and U.S. Justice Department regulations require lawyers to step aside from cases involving their former clients for at least a year.

State rules in Missouri, where Martin is licensed, also bar government lawyers from handling cases involving their clients without written consent.

“When President Trump appointed Mr. Martin to serve as interim U.S. Attorney for the District of Columbia, Mr. Martin became duty-bound under the rules of professional conduct to abstain from any role in his former clients’ criminal cases,” said Michael Teter, managing director of the 65 Project, which has brought bar complaints against Trump-affiliated lawyers, in a statement.

The complaint also notes that Martin filed the motion to dismiss for Timothy Hale-Cusanelli, after doing fundraisers for the Hitler cosplayer.

In addition, Rule 4-1.7 also prohibited Mr. Martin from appearing on behalf of his client, the United States, in Mr. Hale-Cusanelli’s criminal matter after he held a fundraiser for Mr. Hale-Cusanelli and spoke glowingly of the convicted felon.

Still, two days into Pam Bondi’s tenure as AG, things are only getting started. Consider this paragraph of Bondi’s memo entitled, “RESTORING THE INTEGRITY AND CREDIBILITY OF THE DEPARTMENT OF JUSTICE,” which attempts to comply with Trump’s Executive Order purporting that DOJ has been weaponized. (See this Lawfare post for links and analysis of all of Bondi’s memos.)

I hereby establish the Weaponization Working Group, which will be led by the Office of the Attorney General and supported by the Office of the Deputy Attorney General, the Office of Legal Policy, the Civil Rights Division, the U.S. Attorney’s Office for the District of Columbia, and other personnel as necessary to achieve the objectives set forth herein. The Weaponization Working Group will conduct a review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States over the last four years, in consultation with the heads of such departments and agencies and consistent with applicable law, to identify instances where a department’s or agency’s conduct appears to have been designed to achieve political objectives or other improper aims rather than pursuing justice or legitimate governmental objectives. The Department of Justice will provide quarterly reports to the White House regarding the progress of the review.

It puts the following people in charge of reviewing whether investigations into Donald Trump were weaponized:

  • Bondi’s own office, barely three months after she signed an amicus in the appeal of his documents case and who also perpetuated some of Trump’s false voter fraud claims
  • The Office of Deputy Attorney General, currently run by Trump’s defense attorney Emil Bove, soon to be run by Trump’s defense attorney Todd Blanche
  • Office of Legal Policy, which will be led by Ken Paxton’s former deputy
  • Civil Rights Division, to which Trump has nominated Harmeet Dillon, who worked for Trump’s campaign in both 2020 and 2024; she also represented the RNC in a Voting Rights lawsuit filed by a Michigan Civil Rights Group
  • The DC US Attorney’s Office, run by Martin, who’s already struggling to contain his conflicts (and who was almost certainly among the 1,000 or so people investigated,  but not charged, for January 6)

Literally every one of the people overseeing this review has a major conflict. If they were ever to file criminal or civil charges against a competent judge, it’d be laughed out of court for all the conflicts. Plus, Bove and Blanche have already made claims about these investigations that have been rejected by judges.

Remember, Bondi promised to consult with career attorneys about such conflicts — but they’ve already reassigned the senior most of them, Brad Weinsheimer.

And this is what Bondi does in a memo claiming to “restore the integrity and credibility of DOJ.”

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After Yesterday’s DOJ Purge, Pam Bondi Cannot Fulfill Promises Made at Her Confirmation Hearing

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Among the many things that happened in the ongoing DOJ purge was the reassignment of DOJ’s top career official, Brad Weinsheimer, to Trump’s sanctuary cities task force.

The department’s most senior career official, a well-respected department employee responsible for some of the most sensitive cases, was reassigned to a much less powerful post.

Were that official, Bradley Weinsheimer, to remain as the associate deputy attorney general, he would have handled critical questions about possible recusals — a thorny issue for a department that will soon be run by a number of Mr. Trump’s former lawyers.

[snip]

Like many of the other officials who have received transfer emails, Mr. Weinsheimer has been given the option of moving to the department’s sanctuary cities task force — an offer seen by some in the same situation as an effort to force them into quitting.

Mr. Weinsheimer, a respected veteran of the department for three decades, played a critical role under multiple administrations, often acting as a critical arbiter of ethical issues or interactions that required a neutral referee.

He was appointed to his current role on an interim basis by Attorney General Jeff Sessions in July 2018 during Mr. Trump’s first term, a move that was made permanent by one of his successors, William P. Barr.

Mr. Weinsheimer also served four years in the department’s Office of Professional Responsibility, which investigates complaints about prosecutors. An email to his government account was not immediately returned.

I’ve written about the key role Weinsheimer has played here.

In response to a question from Dick Durbin about her lobbying for Qatar (which she did not disclose as a potential conflict to the committee),

If there are any conflicts with anyone I represented in private practice, I would consult with the career ethics officials within the department and make the appropriate decision.

When Durbin asked if she would face a conflict with private prison contractor GEO, Bondi again said she would “consult with the career ethics officials within the Department of Justice and make the appropriate decision.”

But now the DOJ purge has made that impossible. Weinsheimer will be stuck prosecuting Chicago officials somewhere, and someone hand selected will take his spot.

In Bondi’s case, it won’t matter. She is, at least, qualified for the job, unlike so many of Trump’s other nominees.

But a key promise she made in her confirmation hearing just became meaningless.

Update: Fixed my typo to state correctly that it will be impossible for Bondi to keep her promise.

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The Stephen Miller EOs

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At least in response to questioning from journalists yesterday, Trump had — or feigned — a very limited understanding of some of the Executive Orders he has signed in the last two days. For example, he couldn’t explain why he had pardoned Danny Rodriguez, who nearly killed Michael Fanone. And he explained the Enrique Tarrio pardon by pointing to the Proud Boy leader’s burning of a BLM flag, which (along with his attempted possession in DC of unlawful weapons) was punished separately from Tarrio’s seditious attack on the Capitol.

With Trump, one should always start with the assumption he’s engaged in a con, but it really is possible he only vaguely understands some of what he just signed.

That, plus the number of typos and other sloppy errors commentators have noted in the EOs, makes me wonder whether Stephen Miller drafted everything and decided, in real time, which Executive Orders to hand to Trump to sign, like a gamer might deploy his favorite Magic Card deck. In a piece on Vivek Ramaswamy’s purge from DOGE [sic], for example, WaPo reveals that, “Draft executive orders favored by Musk were implemented, and those put forward by Ramaswamy’s team that Musk had ignored in recent weeks are unlikely to be issued.” Who knows? Maybe there’s even an EO with all the January 6 pardons that only commuted the sentences of those who assaulted cops or were deemed to be terrorists, rather than granting (in many cases) full pardons.

There are at least two Executive Orders that have Stephen Miller’s name all over them which deserve closer scrutiny: One claiming to “restor[e] freedom of speech and end[] federal censorship,” and another claiming to end[] the weaponization of the federal government.”

Both have the same structure. They order the Attorney General (and the Director of National Intelligence, in the weaponizing EO) to go chase down conspiracy theories spawned by Jim Jordan: that the Federal government is infringing on free speech and weapon or targeting Joe Biden’s opponents. Here’s how it looks in the latter case:

The Department of Justice even jailed an individual for posting a political meme. And while the Department of Justice has ruthlessly prosecuted more than 1,500 individuals associated with January 6, and simultaneously dropped nearly all cases against BLM rioters.

[snip]

(a) The Attorney General, in consultation with the heads of all departments and agencies of the United States, shall take appropriate action to review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission, over the last 4 years and identify any instances where a department’s or agency’s conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the Counsel to the President, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.

(b) The Director of National Intelligence, in consultation with the heads of the appropriate departments and agencies within the Intelligence Community, shall take all appropriate action to review the activities of the Intelligence Community over the last 4 years and identify any instances where the Intelligence Community’s conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the National Security Advisor, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order. The term “Intelligence Community” has the meaning given the term in section 3003 of title 50, United States Code. [my emphasis]

These orders will give Pam Bondi cover to conduct an investigation without the predicate otherwise required, and do so outside the normal institutions (like DOJ’s Inspector General and DOJ and FBI’s Offices of Professional Responsibility; to say nothing of Trump-appointed judges who already debunked the EO’s claim about selective prosecution of January 6ers) that afford targets some due process.

The scope of this review is very strictly the last four years. Thus, it will exclude a great deal of weaponization Bill Barr engaged in (including the Brady side channel via which Joe Biden was criminally framed) and even every single one of the notices regarding misstatements about voting means, time, or location that Barr’s DOJ authorized in the 2020 election, which were one main focus of the Twitter Files. It will ignore that the investigation into Douglass Mackey — the reference to an individual who posted a political meme, above — in chatrooms to which Stephen Miller was, at the very least, adjacent (and Don Jr was in), was almost entirely conducted during the first Trump Administration.

It will likewise exclude the far greater threats to free speech going forward. Donald Trump’s threat to send Mark Zuckerberg to prison for the rest of his life? Issued before Trump returned to government. Brendan Carr demanding that CBS platform right wingers, while ignoring Fox’s production of exclusively right wing content? Officially government, as of Monday, but therefore outside the scope of the four year review. And Stephen Miller coaxing Zuckerberg to making his platforms amenable to genocide again? Not yet a government action.

Take special notice, too, that the SEC and FTC are included among the agencies where Bondi is instructed to go find weaponization. Again, that picks up a Jim Jordan crusade, one targeted at regulatory agencies holding Elon Musk accountable for agreements the company he bought had already entered into, to say nothing of Elon’s efforts to tank Xitter’s own stock. Sure, some of this is Miller’s means to undermine the legitimacy of the January 6 investigation, but it’s also a personal sop to the richest man in the world.

And after Pam Bondi conducts an investigation into things that aren’t crimes via means that evade normal due process? She writes a report and gives it to … Stephen Miller, who among other things has been cultivating first Elon and then Zuck to platform Nazis.

When Jim Jordan conducted these crusades, he was shielded by Speech and Debate from adhering to basic facts. These EOs are an attempt to create space for Bondi to similarly escape the kinds of evidentiary rules and basic due process that limited Trump’s prior attempts to target his enemies.

If they find something, Miller will feed them to Trump to make issue of. If they don’t (there are few real complaints about the January 6 investigation, aside from the shitty DC jail and difficulties created by COVID; and for much of Biden’s term, the agencies of interest to Miller for engaging in government speech were constrained by lawsuits by Miller’s allies), then Miller can just burn the report in the same fireplace Mark Meadows use to use.

In other words, these two EOs (I’m sure there are other similar ones) claim to attack the politicization of government by ordering Pam Bondi to politicize DOJ.

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If You Can’t Stand the Hypotheticals, Get Out of the Cabinet

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Pete “Don’t Ask Me Any Hypotheticals” Hegseth, nominee to be Secretary of Defense

First it was Pete Hegseth who said it, followed 24 hours later by Pam Bondi. In the days ahead, I am sure we will hear the same from Tusli Gabbard, Robert Kennedy Jr., Marco Rubio, Kash Patel . . . et cetera, et cetera. et f-ing cetera: “Senator, I am not going to talk about a hypothetical.” Implied in the body language and tone of voice is the unstated addition “. . . and how dare you ask me about mythical future possibilities, rather than focus on the here and now.” Though to be fair, sometimes, as with Bondi’s exchange with Adam Schiff, that “how dare you” is spoken out loud.

But here’s the thing: the job description of every member of the Cabinet, and every senior leader of a federal agency, is centered on hypotheticals.

The Department of Defense is certainly focused on hypotheticals. The senior leadership — the Secretary of Defense, the Joint Chiefs, the various regional commanders, and a host of others — spend a huge amount of energy imagining hypothetical situations, and then planning on how to address those situations. “What would we do, if Iran successfully lobs a bomb at Israel?” or “How would we react to China sending a fleet up and down the coast of New Zealand, at the same time that they run ‘war games’ around Taiwan?” or “How would we respond to a North Korean missile that appears headed to strike Japan?” Senior DOD folks fear one thing above all: something happens that they never even imagined would happen.

The State Department and the Intelligence agencies operate with much the same fear. Every one of them dwells on hypotheticals every day, both reactive (“What do we do if they do X?”) and also proactive (“How might we game out a path to Z, knowing how others would react to our actions?”) None of these national security leaders want to have to face the question “How could you have missed this?” Lower level staffers put together voluminous briefing books for senior leaders, trying to prepare them for all the hypothetical situations they might encounter on a foreign trip, or when meeting with a foreign counterpart here in the US.

Lawyers — like the Attorney General — play with hypotheticals all the time as they plot out investigative paths, map the steps toward indictments, and game out strategy for trials. “If they say X, how do we respond? . . . If we want a judge to grant us a search warrant, what do we need to show, without fully tipping our hand for all the world to see? . . . If we want the jury to agree with us, how to we move them in that direction?” The legal cliche “Never ask a question you don’t know the answer to” is the logical advice that emerges in a profession that thrives on hypotheticals.

If Pete Hegseth and Pam Bondi hate talking about hypotheticals, they are angling for the wrong jobs. The jobs for which they are nominated require that they embrace hypotheticals, not reject them.

But it’s not just these national security positions. Look at a department as benign as the Department of Transportation. How many times has Pete Buttigieg’s day been turned upside down by a bridge collapse, a railroad derailment, or a computer glitch that screws up the aviation industry? The Department of Transportation has all kinds of folks who spend their days imagining hypotheticals and preparing for how to react if they come to be, or (even better) how to prevent them from taking place in the first place. If you can’t imagine something happening, you can’t imagine how to prevent it or react to it.

Or think of the Department of Agriculture. What would the Department do, if a hot dry summer kills off crops across the Great Plains? What if a hard freeze hits the entire southeast, killing off the citrus industry? What would the Department do, if an epidemic of bird flu hits chicken producers and processors, and then appears in the dairy industry?

Oh, wait. That last one isn’t a hypothetical.

Then, of course, there are agencies like the CDC, NIH, and FDA. Their whole reason for being, at the top of a public health system that goes down to local health departments, is to get ahead of diseases. Two questions drive every bit of their work: (1) How can we slow and stop a disease from spreading? and (2) How can we prevent an outbreak from starting in the first place? Both of those questions require imagining hypotheticals, so that hypothetical strategies can be developed. When folks in the early 20th century asked “Are there actions that can be taken to reduce the spread of disease?” they realized that things like public sanitation matter. Get clean water into every home. Keep trash from piling up in the streets, and thus keep rats and other disease-spreaders at bay. At the same time, researchers looked at strategies aimed at individuals, like improved nutrition, vaccines, and therapies of all kinds. Good research scientists ask “what if . . . ” every day of their professional lives, and those who support and guide these scientists do the same.

The more these Trump nominees express their refusal to examine hypotheticals, the more some Senator needs to point out that the jobs they are selling their souls for are filled with these things they hate.

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America Just Failed the Test of Responding to Trump’s Politicized Prosecutions

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Let’s imagine that, two years from now, Pam Bondi rolls out charges against some onetime adversary of Donald Trump. To the extent that journalists will still be employed and reading court filings, to the extent that prosecutors under Emil Bove (who at SDNY oversaw a team sanctioned for discovery violations) comply with discovery requirements, the adversary in question learns the following about his prosecution:

  • The case started when an investigator started looking into a transnational trafficking network
  • The investigator discovered that the prominent adversary had paid one of the sex workers trafficked in the network
  • Rather than pursuing the traffickers, the investigator used the payment for sex as cause to open an investigation
  • Of course, no one is going to charge a John … so the investigator starts pulling divorce records and four year old tax returns to try to move from that payment for sex work to something that can be charged
  • Then the investigator started incorporating oppo research from Peter Schweizer into his investigation
  • Kash Patel’s FBI set up protected ways to accept tips from Trump supporters who’ve doctored documents to create a crime
  • Trump called up Bondi and told her to take more aggressive steps
  • Trump called up foreign leaders asking for help on this prosecution
  • Bondi then set up a way to launder that information from foreign sources, including known spies, into the investigation of the adversary
  • Patel’s FBI asked a partisan informant to fabricate claims against the adversary
  • Trump publicly called out prosecutors — resulting in them and their children being followed — because they had not yet charged his adversary
  • Ultimately, the adversary got charged on 5-year old dirt, and only then, after charging, did prosecutors quickly do the investigative work to win the case at trial

Now, as I’ve described it, you surely imagine you’d say, wow, that looks like a thoroughly corrupt prosecution, a clear case of Trump using DOJ to punish his adversaries.

Right?

It’s not so much that investigators didn’t, after the fact, find a crime to charge. They did. If you investigate most high profile people long enough, you’ll find something to charge, particularly if multiple people come to DOJ with doctored evidence to help create that crime.

It’s that someone found the name of an adversary in the digital records of crimes that were more important to investigate, and instead of pursuing that crime, used the electronic record as an excuse to keep looking until they found some evidence of a crime against Trump’s adversary.

Everyone would recognize that’s what happened, right?

Of course not. Of course no one would recognize that that was a political prosecution.

We need no further proof than the fact that none of those very same details showed up in any of the coverage of the Hunter Biden investigation. Not now that he has been pardoned. Not when all these details came out last year. Not in any of the retrospectives of the times Trump demanded investigations on his adversaries.

What will happen instead is that a bunch of self-important DC scribes will chase the most salacious allegations, provide endless headlines about sex workers and wild parties. The DC scribes will ignore every detail about the legal investigation — every one!! — and instead use the prosecution as an opportunity to sell political scandal. And also, they will point to their Tiger Beat coverage as proof, they say, they are not politically biased.

Rather than diligently rooting out the obviously politicized prosecution, the press will be complicit in it.

And rather than deciding that the adversary was the target of an obviously politicized prosecution, American public opinion would instead decide that the adversary was icky, and because he is icky, his statements about Trump cannot be credited.

That is what political prosecutions look like. That is, of course, precisely what the Hunter Biden prosecution was (ignoring the assurances from prosecutors who say no one with the fact set Hunter faced would be charged). Every single bullet has an analogue in the Hunter Biden case. That obviously political prosecution is what happened.

Once the GOP got the House majority, they did nothing else but platform these claims, which a different set of self-important scribes treated as an interesting process story, not an obvious case of a great abuse of government power.

And now that Biden has pardoned his son, the very same self important scribes who ignored all the signs this was a political prosecution, are giving non-stop coverage to a pardon that — unlike those of Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker — are not about self-protection, most with no mention of all the evidence Trump ordered up this prosecution to target Joe Biden.

The question is, what are we going to do about this, now that we have rock solid proof the press establishment is not only incapable, but wildly uninterested, in rooting out this kind of politicized prosecution — at least not when they can instead sell scandal?

In the face of seeing Pam Bondi and Kash Patel preparing to redouble efforts to find politicized prosecutions against Donald Trump’s adversaries, Joe Biden chose to end the process, with his son, at least.

I’m actually on the record opposing the pardon — but not for the reasons everyone else is. I don’t think pardoning Hunter in this circumstance is corrupt. I take Biden at his word that he changed his mind about pardoning Hunter. I’m far more interested in Trump admitting he was lying about his plans to implement Project 2025 than that Biden reneged on assurances no one much believed anyway.

I oppose the pardon because it eliminates Hunter’s standing to appeal and with those appeals to begin telling the story that the media chose to ignore. I oppose the pardon because if we don’t start laying out how Trump already politicized DOJ while there’s a good base of legitimate judges in place, it’ll be far too late.

And don’t get me wrong. I think Biden fucked this one up. Not just for saying he wouldn’t pardon Hunter, but for not taking action far earlier — like firing David Weiss the day he was inaugurated, citing Trump’s first impeachment, or pardoning Hunter and firing Weiss on November 6 — to do something about this. I think Merrick Garland shouldn’t have given Weiss himself SCO status (not least, because Weiss continues to investigate crimes — the alleged attempted framing of Joe Biden by Alexander Smirnov — to which he is a witness). I think Garland’s supervision of Special Counsels allowed the abuse of the system, repeatedly.

I’ve never, as far as I’m aware, spoken with Hunter Biden. I have, however, spoken to a good number of the people who were and who would be politically prosecuted in Trump’s second term (not including myself, of course). And the thing I’ve learned from them is because the press is complicit in their politicized prosecution, it guarantees they’ll be isolated, regardless of guilt or innocence. Because the press has unquenchable thirst for lazy dick pic sniffing, they don’t do the work of reading the court filings. Because the press thirsts for a false appearance of both sides neutrality, they’re always on the hunt for something to fit into their both sides scandal box.

And meanwhile, those very same self-important scribes were largely silent in 2020 when Trump pardoned his way out of Russian trouble, and even more silent in 2024 when they could have explained to voters that he had done so.

Whatever else you think about the Hunter Biden case and the way Joe Biden pardoned him, it is crystal clear proof that the thing defenders of democracy swear they’ll do in a second Trump term — rise to the defense of those targeted for political prosecution — they already failed to do. Whatever you think about the Hunter Biden case, the vast majority of people talking about it have absolutely no clue that it is precisely what people fear in Trump’s second term, not (just) because Hunter was charged in two indictments when others would not be, but because Trump and his people repeatedly ordered up this prosecution.

Update: Peter Baker, who wrote an otherwise thorough piece during the election about Trump’s corruption which ignored Hunter, claims to be unable to tell whether Biden’s claim that Hunter’s prosecution was politicized is true or not.

Update: Here’s a copy of a white paper Hunter’s attorneys released to describe the politicization of the case. It adds the Parnas and Scott Brady allegations to the stuff in the selective prosecution motions.

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Pam Bondi Offers a Platform to Expose the Consequences of Trump’s Past Corruption

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Greg Sargent had a column proposing ways for Democrats to really challenge Pam Bondi at her confirmation hearing. He describes it as an opportunity to expose how badly she’ll be willing to politicize rule of law.

Democrats should start thinking right now about the opportunity presented by Bondi’s Senate confirmation hearings next year. This will be a major occasion to unmask just how far she’ll gladly go in corrupting the rule of law and unleashing the state on all the “vermin” he has threatened to persecute.

“The attorney general will be the weaponizer-in-chief of the legal system for Trump,” Representative Jamie Raskin, Democrat of Maryland, told me.

While I agree with Sargent’s premise — Democrats should treat Bondi’s confirmation hearing as an opportunity — I disagree with his proposed approach (and that espoused by Jamie Raskin, whom he quotes at length).

Sargent’s focus is on how Bondi would act under predictable eventualities.

Trump has threatened to prosecute enemies without cause. How will Bondi respond when he demands such prosecutions? He has vowed to yank broadcasting rights to punish media companies that displease him and send the military into blue areas for indeterminate pacification missions. His advisers are reportedly exploring whether military officers involved in the Afghanistan mission can be court-martialed. Raskin says Bondi should be confronted on all of this: “Ask whether she thinks the First Amendment and due process are any impediment to what Trump has called for.”

But this is precisely the approach that failed with Bill Barr, who months after a contentious confirmation hearing, kicked off the process of politicizing DOJ.

Most tellingly, Barr was asked questions about the kind of foreseeable eventualities that Sargent describes (such as, pardons for January 6ers), and it did no good. Patrick Leahy, Amy Klobuchar, and Lindsey Graham all asked Barr whether pardoning someone for false testimony would amount to obstruction. Every time, Barr at least conceded the potential applicability of obstruction in that case. And then, just months after that hearing, when Barr wrote a declination memo for Robert Mueller’s obstruction charge, he simply ignored the pardons. He didn’t mention them at all. While it took years for us to learn how he had reneged on his own stated views (by simply ignoring them), those setting these expectations never found a way to hold him accountable for the dodge.

That said, January 6 Committee staffer Thomas Joscelyn, whom Sargent also quotes, gets a bit closer to the approach I’d recommend. Don’t ask Bondi whether she would do something; make sure you lay out her responsibility for inevitable consequences when things she’s likely to do have untoward effects.

“What happens if Trump pardons the Proud Boys leaders who were convicted for seditious conspiracy and instigating the violence?” said Tom Joscelyn, a lead author of the Jan. 6 Committee report, in suggesting lines of questioning for Bondi. “What about the dozens of defendants convicted of assaulting cops?”

Joscelyn adds that pardons for them would provide a major boost to violent far right extremist groups in this country and would “legitimize their cause.” Dems should confront Bondi with all of that. Make her own every last bit of it.

Where I’d add to what Joscelyn suggests is with Trump’s past history.

Rather than asking Bondi about something we know will happen going forward (political violence from freed militia members), ask her how she’ll avoid the negative consequences Trump’s past actions already had. Rather than asking Bondi whether she’ll be responsible for Proud Boy violence when Trump pardons them, instead note that Bill Barr treated threats  the Proud Boys and Roger Stone made against Amy Berman Jackson as a technicality, only to have them plan an insurrection 18 months later. “Bill Barr’s coddling of Trump’s far right extremists led to a predictable increased threat, an attack on the Capitol. How will you avoid the same mistake?” It uses the confirmation hearing to lay out the consequences of past corruption.

You can use this approach with pardons more generally. “Because Trump didn’t properly vet his pardons the first time around, at least seven of them quickly returned to crime, with many of them beating their spouses. How will you ensure that Trump’s bypassing of normal pardon protocol don’t put violent men back on the streets?” You can pick some of the January 6ers — like hardened criminal Shane Jenkins, who almost had a fundraiser at Bedminster, or NeoNazi Timothy Hale-Cusanelli, who did — to ask Bondi how coddling such criminals is consistent with the law-and-order promises she makes.

The difference, so far, is subtle: Using the hearing to show past consequences for Barr or Trump’s own failures, rather than generically predicting future woes.

But that difference becomes more important when adopting a more important focus for the hearing.

Like the legitimization of far right extremists that Joscelyn predicts, we can predict a number of other inevitable outcomes from Trump’s second term. The most important is that as billionaires like Elon Musk loot the government, government service will decline precipitously, only exacerbating the alienation of many of the people who voted for Trump. And when those same billionaires get impunity from Trump’s DOJ, consumers will have their lives ruined. But Trump will work hard to blame scapegoats: liberals, trans people, and unions, rather than the billionaires Trump chose to given direct control over the looting process.

Democrats need to build in accountability for the corruption from the beginning. They need to explain that a crash in life quality is the inevitable consequence of Trump’s corruption and — just as important because committed MAGAts are more likely to turn on others before they turn on Trump — his billionaire appointees and protected buddies.

And Pam Bondi offers a spectacular way to lay that out, because she has been involved in protecting the villains who harmed Trump supporters in the past.

“Ms. Bondi, these ardent Trump supporters who signed up for Trump University racked up debt but got nothing from their degrees. How will you avoid such abuse of consumers going forward?”

“Ms. Bondi, after you fired the attorneys who were investigating banks foreclosing based on dodgy paperwork, millions of Floridians lost their homes. How will you protect Americans from similar business fraud going forward?”

“Ms. Bondi, after you and Rudy Giuliani made false claims about the vote in Pennsylvania, many of them threw their lives away by attacking the Capitol. How will you ensure that such lies don’t harm Trump supporters going forward?”

There are similar questions she can be asked that will anticipate other actions she’s likely to take — like shutting down investigations into Elon Musk’s various stock manipulations and false claims. “Ms. Bondi, how will you protect consumers who purchased cars falsely sold as self-driving?”

There are other questions that might get at Bondi’s past complicity. “Ms. Bondi, why did you and Trump’s other impeachment defense attorneys claim Trump’s demand for an investigation into Burisma was a pursuit of corruption, when Trump’s own DOJ had just shut down a 3-year investigation into Mykola Zlochevsky’s corruption?”

But the most important questions can and should be framed in terms of the Trump supporters whom her past corruption has harmed.

Democrats are not going to prevent Bondi’s confirmation. They’re also not going to get reassurances that Bondi will protect the integrity of the Department; Bill Barr’s prevarications prove that’s futile.

But they can use the high profile confirmation process as a way to lay out what should be a relentless message going forward: corruption hurts the little guy. Trump’s past corruption has hurt his supporters. Bondi’s past corruption has hurt his supporters.

That’s what the Republicans who will confirm her should have to own: the inevitable consequences of her protection of Trump’s corruption and that of the other billionaires who will be swarming his administration.

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