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The IC (with an Assist from Journalism) Liberates the IC’s Debunking of Trump’s Alien Enemies Act

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The two NYT journalists who would be targeted in an investigation of the sources of leaks debunking Donald Trump’s Tren de Aragua Alien Enemies Act invocation have published a memo that further debunks Donald Trump’s Tren de Aragua Alien Enemies Act invocation. Charlie Savage and Julian Barnes published the memo, which Freedom of the Press Foundation liberated via FOIA.

The contents of the memo themselves are newsworthy. Like the initial report from Savage and Barnes and a follow-up about this memo in the WaPo, the memo describes that the Intelligence Community doesn’t think that the Maduro regime directs the actions of TdA.

The Maduro regime generally does not impede illegal armed and criminal groups from operating in Venezuela, but it does combat and seek to contain them when it fears they could destabilize the regime or when corrupt dealssour. Venezuela’ssecurity services lackthe capacity to fully control Venezuelan territory, giving the regime an interest in cooperating with armed groups for insight and control in areas outside the services’ traditional areas of operation. Furthermore, combatting such groups often results in personnel losses, probably encouraging the regime to at times cooperate with some groups instead of contesting them.

Some mid- to low-level Venezuelan officials probably profit from TDA’s illicit activities, according to [(b)(1), (b)(3)] and press reporting. For example, local military officials have alerted other armed and criminal groups conducting aerial drugshipments to Venezuelan Air Force patrols and might have alerted TDA leadership of a planned raid in 2023 against the prison that was its base of operations.

Even the FBI — the single agency of 18 that backed a claim that Maduro directs TdA — only claimed that some officials directed the migrants, and (as NYT also noted) other agencies think that may be based on fabrications.

While FBI analysts agree with the above assessment, they assess some Venezuelan government officials facilitate TDA members’ migration from Venezuela to the United States and use members as proxies in Chile, Colombia, Ecuador, Peru, and the United States to advance what they see as the Maduro regime’s goal of destabilizing governments and undermining public safety in these countries, based on DHS and FBI reporting as of February 2024.

[snip]

In some cases, reporting warns that these sources could also be motivated to fabricate information.

[snip]

Some reports come from people detained for involvement in criminal activity in the United States or for entering the country illegally, which could motivate them to make false allegations about their ties to the Venezuelan regime in an effort to deflect responsibility for their crimes and to lessen any punishment by providing exculpatory or otherwise “valuable” information to US prosecutors.

But I’m just as interested in the significance of a successful FOIA that undercuts investigations into these leaks (and therefore, into the debunking of the core AEA invocation).

The AEA, which Trump secretly invoked on March 14, was used as justification to deport at least two planeloads of mostly Venezuelans on March 15. The NYT published their first story on March 20, as Judge James Boasberg queried whether the government defied his order not to do so. That same day, the government first moved toward invoking State Secrets to cover up the basis for their rendition flights, followed by a declaration from Todd Blanche. NYT published the story in their dead tree version only after Blanche announced an investigation into what seemed to be that leak. As I noted, in one of his first acts as Deputy Attorney General, Blanche was launching a witch hunt into a leak that exposed his actions.

Days after the WaPo followed up on the NYT story reporting the results of this report, Tulsi Gabbard adopted Dick Cheney’s habit of lying about intelligence assessments, accusing those who leaked the true contents of the assessment to be weaponizing intelligence.

I noted that her claims of a classified leak were likely overstated: what WaPo reported went little beyond an answer Gabbard gave to Joaquin Castro in the Global Threats hearing.

Castro: I want to ask about the Alien Enemies Act, real quick, while I have time. The President has used the Alien Enemies Act, a wartime authority last used to detain German and Japanese nationals during World War II, to summarily deport people accused of being members of the Venezuelan gang, Tren de Aragua. To invoke this law, the President must demonstrate the United States is under invasion by a foreign nation or government. They have alleged that we are under invasion by the Venezuelan government. The idea that we are at war with Venezuela would come as a surprise to most Americans. The unclassified version of the Annual Threat Assessment the Intelligence Community just released makes no mention of any invasion or war that we are fighting with the nation of Venezuela. You would think our nation being at war would merit at least a small reference in this Threat Assessment. Director Ratcliffe, does the Intelligence Community assess that we are currently at war or being invaded by the nation of Venezuela?

Ratcliffe: We have no assessment that says that.

Castro: In invoking the law the President alleged that Venezuela is taking hostile actions at the direction — clandestine or otherwise — of the Maduro regime in Venezuela. Director Gabbard: Does the Intelligence Community assess the Venezuelan government is directing Tred de Aragua’s hostile actions against the United States.

Gabbard: There are varied assessments that came from different Intelligence Community elements. I’ll defer to Director Patel to speak specifically to the FBI assessment.

[Kash moves to speak.]

Castro: But let me ask you. So you’re saying there are conflicting assessments that have come from the IC?

Gabbard: That’s correct.

Castro: Thank you. We’ll take it up in closed session.

Nevertheless, days later, Tulsi announced an investigation into the leaks.

And just days after that, Pam Bondi reversed Merrick Garland’s press protections, describing only the NYT and the WaPo stories to include classified information.

The leaks have not abated since President Trump’s second inauguration,6 including leaks of classified information.7

7 See, e.g., John Hudson & Warren P. Strobel, U.S. intelligence contradicts Trump’s justification for mass deportations, Washington Post (Apr. 17, 2025), https://www.washingtonpost.com/national-security/2025/04/17/us-intelligence-tren-de-araguadeportations-trump; Charlie Savage & Julian Barnes, Intelligence Assessment Said to Contradict Trump on Venezuelan Gang, New York Times (Mar. 22, 2025), https://www.nytimes.com/2025/03/20/us/politics/intelligence-trump-venezuelan-gang-alienenemies.html.

That created the appearance that, like Blanche before them, Tulsi and Bondi were also ratcheting up attacks on the press because the press and its sources called out Trump’s corrupt AEA declaration in real time.

These repeated paranoid leak investigations attempted to squelch public debunkings of Trump’s efforts to use a false claim about TdA to chip away at due process (a project that Stephen Miller has been pursuing for years).

And at a time when Trump’s Administration is falling further behind on FOIA requests, FOPF got near immediate response for its FOIA showing that even if any material in the NYT and WaPo stories was classified, it has since been publicly released. That kind of response only happens when people within an agency want something to be released. And in this case, it means that Tulsi has not sufficiently commandeered ODNI to prevent FOIA professionals to carry out a classification review and release information publicly.

It likely means that the people who leaked these debunkings in the first place have found a way to undercut claims that they committed a crime by doing so. At the very least that will make it hard for the FBI to argue this leak is of sufficient seriousness to obtain warrants and subpoenas targeting journalists. It may even make it impossible for the FBI to claim a crime was committed in the first place, because the FBI will have to prove that the NYT and WaPo stories relied on more than made it into this memo.

And all the while, even as one after another judge — including Trump appointees like Fernando Rodriguez Jr! — rule that the original AEA invocation was unlawful (in Rodriguez’ case, because any claimed invasion from Venezuela does not resemble what Congress would have understood an invasion to be in 1798 when AEA was passed), the IC is finding ways to make clear that Donald Trump knows or should know that the claimed ties between Nicolás Maduro and TdA are false.

Stephen Miller is trying to eliminate due process based on a nesting set of false claims.

And the spooks have, for a third time, exposed the core lie on which that effort builds.

Update: Lauren Harper, who liberated the memo, has posted the letter granting her FOIA. She submitted the FOIA on April 25; she got the memo on May 5.

Update: Judge Alvin Hellerstein also held the AEA invocation to be unlawful, finding there’s no war or invasion. But this may be more pertinent to these times:

The third consideration set out by Mathews, the “Government’s interest,” is more complicated. Drafting complaints with particular allegations against individual aliens, providing aliens with time to contact counsel and file a habeas petition, and preparing for a hearing before a federal judge takes time and manpower. However, it is the nature of due process to cause fiscal and administrative burdens. Rule by the ipse dixit of a President is likely more efficient than the deliberative procedures of a court. But it is what our Constitution, and the rule of law, demand. And due process, once surrendered, is difficult to reinstate.

Update: Citing the memo, Jim Himes and Joaquin Castro call on Tulsi to explain “Director Gabbard should explain why her public descriptions of this intelligence failed to correspond with the IC’s findings.”

Last month, we jointly wrote a classified letter to Director Gabbard asking her to declassify the April 7, 2025 Statement of the Community Memorandum entitled ‘Venezuela: Examining Regime Ties to Tren de Aragua.’ We are pleased that the Office of the Director of National Intelligence released a redacted declassified copy of that analysis in response to a Freedom of Information Act request. As the now-public document makes clear, the Intelligence Community assesses that the ‘Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA operations in the United States.’ This assessment reinforces the finding of a District Court judge last week that the Administration’s invocation of the Alien Enemies Act with respect to Tren de Aragua was illegal.

Now that the public can read the Intelligence Community’s analysis that the Maduro regime does not direct Tren de Aragua, Director Gabbard should explain why her public descriptions of this intelligence failed to correspond with the IC’s findings. The most basic responsibility of the Director of National Intelligence is to speak truth to power and, where possible, the American people. Misrepresenting intelligence in public causes grave damage to the IC and to national security.”

Update: In another sign that the Spooks are not impressed with their new boss, WSJ reveals that they’re being asked to collect for actions that would support regime change in Greenland and Denbmark.

Several high-ranking officials under Director of National Intelligence Tulsi Gabbard issued a “collection emphasis message” to intelligence-agency heads last week. They were directed to learn more about Greenland’s independence movement and attitudes on American resource extraction on the island.

The classified message asked agencies, whose tools include surveillance satellites, communications intercepts and spies on the ground, to identify people in Greenland and Denmark who support U.S. objectives for the island.

The directive is one of the first concrete steps Trump’s administration has taken toward fulfilling the president’s often-stated desire to acquire Greenland.

Tulsi continues to squeal about the Deep State Actors exposing her actions.

In a statement, Gabbard said: “The Wall Street Journal should be ashamed of aiding deep state actors who seek to undermine the President by politicizing and leaking classified information. They are breaking the law and undermining our nation’s security and democracy.”

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Todd Blanche Fails Effort to Force SDNY AUSAs to Frame Themselves

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Most reports on the resignation letter from the last three AUSAs on the Eric Adams case focus, justifiably, on its substance. After stating that Deputy Attorney General Todd Blanche would only let them return from paid leave if they confessed wrong-doing they didn’t commit, Celia Cohen, Andrew Rohrbach, and Derek Wikstrom instead resigned.

The Department placed each of us on administrative leave ostensibly to review our, and the Southern District of New York U.S. Attorney’s Office’s, handling of the Adams case. It is now clear that one of the preconditions you have placed on our returning to the Office is that we must express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case. We will not confess wrongdoing when there was none.

[snip]

Serving in the Southern District of New York has been an honor. There is no greater privilege than to work for an institution whose mandate is to do the right thing, the right way, for the right reasons. We will not abandon this principle to keep our jobs. We resign.

But I’m just as interested in the date: Tuesday’s date, April 22.

The same day that Jay Clayton was apparently installed at SDNY, over Chuck Schumer’s attempt to hold his nomination.

Trump has, in general, conducted his purges before bringing in new leaders, even if (as with Kash Patel) the incoming leader was secretly part of the purge. In any case, the attack on the Adams

prosecutors has been going on for months. Emil Bove first put Wikstrom on paid leave, along with Hagan Scotten, on February 13, over two months ago. He first attempted to smear prosecutors with quotations stripped of context on March 7, by which point he had already rifled through their communications.

In between, Judge Dale Ho pushed back on DOJ’s claims any of these prosecutors engaged in misconduct.

Finally, the parties raise related issues in their briefs that do not appear in DOJ’s Rule 48(a) Motion. For reasons explained below, a court cannot properly grant a Rule 48(a) motion on the basis of rationales that were not raised in the motion. But even considering these additional points on the merits, the Court finds them either inapposite or unsupported by the record. For example, DOJ attaches various exhibits to its brief consisting of communications involving the former prosecution team and asserts that they show “troubling conduct” at USAO-SDNY. DOJ Br. at 1. But these communications were not public until DOJ sought to rely on them; as a matter of logic, they could not have affected “appearances” in this case. Moreover, the notion that DOJ sought dismissal because of improper conduct by the USAO-SDNY prosecution team is belied by the February 10 Decisional Memo itself, which makes clear that DOJ, in reaching its decision, “in no way call[ed] into question the integrity and efforts of the line prosecutors responsible for the case.” February 10 Decisional Memo at 1. At any rate, the Court has reviewed these communications carefully and finds that they do not show any improper motives or violations of ethics canons or the Justice Manual by the USAO-SDNY prosecution team or by former U.S. Attorney Sassoon.49

49 The Justice Department’s Principles of Federal Prosecution state, in relevant part, that “the attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” U.S. Dep’t of Just., Just. Manual § 9-27.220 (2023). There is nothing in the USAO-SDNY communications indicating a violation of these principles. For example, one communication indicates that a friend of AUSA Scotten believed that he would make a good federal judge. See ECF No. 175-4. The Court has reviewed this communication and finds that it shows nothing noteworthy, only that AUSA Scotten was focused on his current job “first,” rather than on any possible future opportunities. Id. Another communication—an email circulating a draft letter to the Court—refers to the Williams op-ed as a “scandal,” ECF No. 175-3, but the use of that informal shorthand in an email does not suggest that any of the individual AUSAs on the case, or the U.S. Attorney at the time, had any inappropriate motives or otherwise violated Justice Department policy or guidelines. [my emphasis]

Ho thus foiled DOJ’s effort to conduct a Twitter Files attack on these prosecutors, to invent scandal among private messages.

And, apparently, Todd Blanche was left demanding that the prosecutors implicate themselves.

There’s nothing good about a dozen prosecutors ousted from DOJ over Bove’s effort to cover up his own quid pro quo with ginned up claims of wrong-doing. There’s nothing good about Blanche’s overt effort to weaponize DOJ in the name of fighting it.

But amid silence about other prosecutors ousted on similar terms, this seems to mark a clear failure. Thus far, the ethics of the prosecutors have thwarted Bove and Blanche’s efforts to recruit them in their own corruption.

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Todd Blanche Kicks Off His Tenure Chasing Leaks Implicating His Own Conduct

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Around 8AM on Friday, Deputy Attorney General Todd Blanche announced an investigation of a leak to the NYT pertaining to Venezuelan gang Tren de Aragua.

The Justice Department is opening a criminal investigation relating to the selective leak of inaccurate, but nevertheless classified, information from the Intelligence Community relating to Tren de Aragua (TDA). We will not tolerate politically motivated efforts by the Deep State to undercut President Trump’s agenda by leaking false information onto the pages of their allies at the New York Times. The Alien Enemies Proclamation is supported by fact, law, and common sense, which we will establish in court and then expel the TDA terrorists from this country.

While DHS and DOJ and FBI have made less formal announcements about leak investigations, most notably an evolving claim that leaks from the FBI or maybe DHS or who knows whether this is all a lazy excuse had tipped off alleged TdA members of imminent immigration operations, this was notable in its formality (which, admittedly, may stem exclusively from the fact that Blanche not a Xitter addict like Kristi Noem, Pam Bondi, and Kash Patel). The announcement was even more notable given Blanche’s claim that the leak was “inaccurate,” which would seem to undercut any claim it was classified.

This was, formally at least, maybe just the third public announcement that Blanche made as DAG (though he has already made a stink defending his client Donald Trump in court cases), with one of the others inviting people to claim they’ve been victims of DEI discrimination.

It appears, though no one has said explicitly, the investigation is into the leak claiming that the Intelligence Community disagrees with Trump about TdA’s ties to the Venezuelan government.

President Trump’s assertion that a gang is committing crimes in the United States at the direction of Venezuela’s government was critical to his invocation of a wartime law last week to summarily deport people whom officials suspected of belonging to that group.

But American intelligence agencies circulated findings last month that stand starkly at odds with Mr. Trump’s claims, according to officials familiar with the matter. The document, dated Feb. 26, summarized the shared judgment of the nation’s spy agencies that the gang was not controlled by the Venezuelan government.

The disclosure calls into question the credibility of Mr. Trump’s basis for invoking a rarely used wartime law, the Alien Enemies Act of 1798, to transfer a group of Venezuelans to a high-security prison in El Salvador last weekend, with no due process.

The intelligence community assessment concluded that the gang, Tren de Aragua, was not directed by Venezuela’s government or committing crimes in the United States on its orders, according to the officials, speaking on the condition of anonymity to discuss internal deliberations.

Analysts put that conclusion at a “moderate” confidence level, the officials said, because of a limited volume of available reporting about the gang. Most of the intelligence community, including the C.I.A. and the National Security Agency, agreed with that assessment.

Only one agency, the F.B.I., partly dissented. It maintained the gang has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.

The story was published on March 20, before the investigation announcement, but only published in the dead tree NYT after it.

If that’s correct, the investigation that Blanche rushed to formally announce implicates his own behavior.

Blanche’s announcement came the same day that he filed an insolent declaration before Judge James Boasberg, adopting the claim made by a regional ICE official in a declaration submitted one day earlier: The government is considering invoking State Secrets to withhold from Boasberg even the most basic details of deportation flights that brought Venezuelans to El Salvador after he ordered them to turn.

2. On March 20, 2025, the Government submitted a declaration from Robert L. Cerna II, which stated: “I understand that Cabinet Secretaries are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the Court’s order. Doing so is a serious matter that requires careful consideration of national security and foreign relations, and it cannot properly be undertaken in just 24 hours.”

3. I attest to the accuracy of those statements based on personal knowledge of the events described by Mr. Cerna, including my direct involvement in ongoing Cabinet-level discussions regarding invocation of the state-secrets privilege.

DOJ wants to withhold those details even though some details of which were leaked to Fox News Deportation Propagandist Bill Melugin right away, other details of which are readily available on flight tracker websites.

Judge Boasberg’s order demanding such a cabinet-level declaration came before Blanche’s leak investigation announcement.

Which is to say NYT was working on this intelligence assessment story even as DOJ was stonewalling Boasberg about why it deported two or three planeloads of Venezuelans after he ordered DOJ not to.

Whether or not Trump’s DOJ invokes State Secrets Tuesday, there’s plenty of information in the public record — including the NYT story — that would undercut, but also explain, such an invocation.

CBS published a list of the Venezuelans who were deported — the kind of leak that elicited heavy pushback when they involved Gitmo under George Bush, and almost certainly had to come from some kind of internal documentation but was not obviously implicated in Blanche’s investigation announcement.

The plaintiffs filed declarations debunking the government’s claims that the men deported or targeted to be were criminals, much less members of TdA. There was plenty of other reporting on missing family members who seem to have been deported based on soccer tattoos.

NYT and WaPo both have stories suggesting the underlying reason this trade happened: Because El Salvador’s authoritarian President Nayib Bukele is anxious to get MS-13 members who could implicate him in terrorism out of US custody. Here’s WaPo’s (later) story:

Some say Bukele is trying to hide his government’s own involvement with the gangs.

More than two dozen high-ranking Salvadoran gang leaders have been charged with terrorism and other crimes in a Justice Department investigation that has lasted years. Several of them are jailed in the United States. One of the indictments details how senior members of Bukele’s government held secret negotiations with gang leaders after his 2019 election. The gang members wanted financial benefits, control of territory and better jail conditions, the court documents say. In exchange, they agreed to tamp down homicides in public areas and to pressure neighborhoods under their control to support Bukele’s party in midterm elections, according to the 2022 indictment.

Bukele’s government went so far as to free a top MS-13 leader, Elmer Canales Rivera, or “Crook,” from a Salvadoran prison, according to the documents — even though the U.S. government had asked for his extradition. (He was later captured in Mexico and sent to the U.S.)

Last weekend, the Trump administration sent back one of the MS-13 leaders named in the indictments, César Humberto López Larios, alias “Greñas,” along with the 238 Venezuelans and nearly two dozen other Salvadorans allegedly tied to gangs.

Some Salvadoran analysts believe Bukele wants the gang leaders back so they won’t testify about his government’s involvement with them — and potentially put him in legal trouble.

“If these returns [of Salvadoran gang members] continue, it takes away the possibility that the U.S. judicial system will open a case against Bukele for negotiations and agreements with terrorist groups,” said Juan Martínez d’Aubuisson, an anthropologist who has studied the gangs.

The possibility that this effort to outsource detention and torture to Bukele is part of a quid pro quo helping a fellow authoritarian to cover up his own criminal ties is not dissimilar from details about Saudi complicity in 9/11 that the Bush Administration spent years invoking State Secrets to cover up.

And then finally, in plain sight, on Friday Trump disclaimed that he personally had signed the Alien Enemies Act declaration, that someone used an autopen for his signature. If true (I certainly don’t rule out Stephen Miller autosigning half the stuff that comes out under Trump’s name), that would undermine the Article II claims the government is making.

In other words, even as the government claims to be contemplating invoking State Secrets (which would require declarations to Boasberg I’m not sure they’re willing to provide), the following details have come out:

  • Names and details of the detainees, debunking the claims of TdA affiliation on which Trump based their deportation, making it clear that Trump rushed these deportations to avoid disclosing that TdA isn’t what he says it is
  • Good reason to question the underlying quid pro quo with Bukele
  • Trump’s claim that the AEA order was not backed by the Article II authority DOJ has spent a week claiming it is.
  • The likely subject of the leak investigation: Claims from spooks that any intelligence to support this AEA effort is based on flimsy intelligence

This is the kind of fact set that has the potential to snowball.

Meanwhile, just two months into this Administration, it’s already investigating leaks about purportedly internal spats. Unrelated to Venezuela, there was the NYT leak disclosing Pete Hegseth was about to brief Elon Musk about DOD’s plans for war with China, in response to which Elon called for leak prosecutions.

The chief Pentagon spokesman, Sean Parnell, initially did not respond to a similar email seeking comment about why Mr. Musk was to receive a briefing on the China war plan. Soon after The Times published this article on Thursday evening, Mr. Parnell gave a short statement: “The Defense Department is excited to welcome Elon Musk to the Pentagon on Friday. He was invited by Secretary Hegseth and is just visiting.”

About an hour later, Mr. Parnell posted a message on his X account: “This is 100% Fake News. Just brazenly & maliciously wrong. Elon Musk is a patriot. We are proud to have him at the Pentagon.”

Defense Secretary Pete Hegseth also commented on X late on Thursday, saying: “This is NOT a meeting about ‘top secret China war plans.’ It’s an informal meeting about innovation, efficiencies & smarter production. Gonna be great!”

Roughly 30 minutes after that social media post, The Wall Street Journal confirmed that Mr. Musk had been scheduled to be briefed on the war planning for China.

In his own post on social media early Friday, Mr. Musk said he looked forward to “the prosecutions of those at the Pentagon who are leaking maliciously false information to NYT.”

The leak served a very important (and presumably, its intended) purpose: NYT subsequently reported that Trump had not known about the briefing.

Mr. Trump made clear he had been caught by surprise by The Times’s report, saying he called his White House chief of staff and Mr. Hegseth to ask about it; he said they said it was “ridiculous.” But he also said that Mr. Musk — who has extensive business in China — should not be made aware of such sensitive information. It was one of the first specific statements from the president about what he would consider a bridge too far for Mr. Musk, who has expansive potential conflicts of interest created by a portfolio as a part-time government staff member and adviser.

Yet CNN reported that DOD would conduct an investigation, using polygraphs, which the article explicitly suggests is a reference to this leak.

We’re used to these people doing suspect things to cover up Trump’s alleged crimes. But it took just days for Todd Blanche to involve himself personally in all this, even while siccing investigators on those who might debunk the legal claims he’s making in court. And the DOD leak suggests these are not just — as Blanche claimed in his investigation announcement — the Deep State undermining Trump.

These are, in part, people trying to prevent Trump from making bigger fuck-ups than he’s already making.

Update: Corrected date State Secrets declaration is due.

Update: I said the Todd Blanche announcement was 8AM, based off the time listed on the press release. But it was not sent out until hours later, after the status hearing.

Timeline

[docket]

March 14: Trump issues but does not publish AEA proclamation

March 15: Proclamation posted

March 15: Boasberg certifies class, issues TRO

March 15: Emergency hearing

March 15, 7:25: Boasberg order

March 17: NYT Bukele story

March 17: Boasberg orders briefing on post-order deportations by March 18 at noon

March 17, 5PM: Boasberg hearing

March 18: First Cerna declaration

March 18: Boasberg orders March 19 declarations on details of deportation

March 19: Boasberg partially grants request for extension

March 20, 12:11PM: Second Cerna declaration

March 20, 3:49PM: Boasberg orders a cabinet level declaration

March 20: WaPo Bukele story

March 20 (around 6PM?): NYT publishes intelligence assessment story

March 20, 8:18 PM: CBS publishes list of deported Venezuelans

March 21, AM, 8AM: Blanche announces the investigation

March 21, 12:18: Blanche submits a declaration

March 21, 2:30PM: Motion hearing

March 21: Trump disclaims signing AEA declaration

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“The Very Importance of Facts Is Dismissed, or Ignored:” Todd Blanche Whines about Women Judges, Again

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Yesterday, just ten minutes after the last career AUSA, Terry Henry, dropped off the Perkins Coie case (using a letter purportedly authored by Doug Dreier, who dropped off the case Tuesday), DOJ filed a motion to disqualify Beryl Howell from the case.

Fair proceedings free from any suggestion of impartiality are essential to the integrity of our country’s judiciary and the need to curtail ongoing improper encroachments of President Trump’s Executive Power playing out across the country. In this case, reasonable observers may well view this Court as insufficiently impartial to adjudicate the meritless challenges to President Trump’s efforts to implement the agenda that the American people elected him to carry out. In fact, this Court has repeatedly demonstrated partiality against and animus towards the President.

The motion is packed with allegations that don’t even make sense. Beryl Howell sinned by:

  • Questioning Twitter’s motives for defying a lawful warrant.
  • Upholding the gag order in the Twitter case for reasons other than what DOJ claims.
  • Disagreeing that Trump’s pardon of an accused cop assailant corrected “a grave national injustice.”
  • Finding that Trump had attempted to get Evan Corcoran to break the law for him.
  • Correcting Chad Mizelle’s false claims about the Steele dossier by saying, “you cannot be saying that there was nobody involved in the 2016 Trump campaign that had any connection with any Russian; you can’t say that.”
  • Noting that Trump lost a lawsuit against Perkins Coie.

The recusal motion says nothing about the fact that Howell oversaw the grand jury investigation of Michael Sussmann, permitting repeated subpoenas to law firms, including Perkins Coie. Beryl Howell treated Trump no better or worse than she did Sussmann.

Perhaps the craziest excuse given for demanding that Howell recuse, though, regurgitated an Elise Stefanik complaint that at a public appearance in 2023, Beryl Howell quoted Heather Cox Richardson about propaganda, without mentioning Trump at all.

This historian Heather Cox Richardson, whose book I’ve been reading . . . cautions in her book’s opening line . . . “America is at a crossroads teetering on the brink of authoritarianism” and she echoes this thought in her closing line, that we are at a time of testing and how it comes out . . . is in our own hands.

(This video was originally posted by one of Steve Bannon’s propagandists.)

In other words, DOJ’s political appointees, including Todd Blanche, are demanding that Beryl Howell recuse from this case because she warned about precisely the kinds of disinformation that DOJ spews in this court filing.

Blanche’s involvement is not just symbolic. This filing was authored by someone in the Deputy Attorney General’s office — Blanche’s office.

Blanche’s involvement matters for two reasons.

First, this is a ploy that Todd Blanche pulled before, back before taxpayers were on the hook to pay him to serve as defense attorney for Donald Trump. Back in September 2023, he moved to disqualify Tanya Chutkan in Trump’s January 6 case because she had already had to deal with multiple January 6 defendants who compared their own conduct to that of Trump (though the complaint would have stood for any DC judge).

President Donald J. Trump, through undersigned counsel, respectfully moves to recuse and disqualify the Honorable Tanya S. Chutkan pursuant to 28 U.S.C. § 455(a). Fairness and impartiality are the central tenets of our criminal justice system.

Both a defendant and the public are entitled to a full hearing, on all relevant issues, by a Court that has not prejudged the guilt of the defendant, and whose neutrality cannot be reasonably questioned.

Todd Blanche, when he’s trying to defend Trump’s abuse of power, is making a habit of impugning women judges.

The other reason Blanche’s personal involvement matters is that most of the things he complains about are his own gripes carried over from serving as Trump’s defense attorney. Evan Corcoran testified that Trump deceived him about the classified documents his client was hoarding. Twitter ultimately turned over Trump’s account information, which proved that Trump was holding the weapon — the Twitter account — that almost got Mike Pence murdered. The way that Trump’s false claims led thousands to disrupt the peaceful transfer of power remained at the core of the prosecution of Trump even after SCOTUS had their way with the case.

Central to Perkins Coie’s argument is that Trump’s punitive Executive Order targeting the law firm amounts to a mulligan, an attempt to win legal battles he already lost, including the prosecution of Sussmann.

I think the government admitted to you that this was punitive. That makes a big difference, too, because in the separation of powers analysis, one thing you will look at — we submitted to you — that what they have done is just a mulligan from the things that happened in the judicial system.

Sussmann was indicted and acquitted. President Trump, as a private citizen, sued the law firm; and he lost. The punitive portion, courts mete out punishment, not the Presidents; and courts adjudicate, not Presidents.

Now, Blanche has done the same himself, making his own losses as a defense attorney the business of the United States.

It does nothing but prove that he has a conflict, not that Beryl Howell does.

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Yes, Trump Is Trying to Prevent the Release of Jack Smith’s Report

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As I have expected, Trump is trying to prevent the release of Jack Smith’s report. Walt Nauta and Carlos De Oliveira asked Judge Cannon (who, unless I’m mistaken it, does not retain jurisdiction over the case) to prevent Smith from releasing the volume pertaining to the stolen documents. And that filing includes a long screed from Todd Blanche asking Merrick Garland to fire Jack Smith so he doesn’t do what Special Counsels do.

Among the other things Blanche complains about is that the report includes details on people expected to be part of Trump’s Administration. And that Xitter stalled its response to a warrant.

Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.

As I keep mentioning, some of this will implicate Kash Patel. Hell, some of it may implicate Blanche himself.

As I have suggested, Garland may have been trying to release both this and the David Weiss report after Wednesday’s sentencing of Alexander Smirnov — so possibly the 10th. We’ll see whether Garland tries to get the documents part of the report out before Cannon tries to intervene.

Update: Jack Smith responded to the Florida motion.

The Special Counsel’s Office is working to finalize a two-volume confidential report to the Attorney General explaining the Special Counsel’s prosecution decisions. See 28 C.F.R. § 600.8(c). The Attorney General will decide whether any portion of the report should be released to the public. See 28 C.F.R. § 600.9(c). One volume of the report pertains to this case. The Attorney General has not yet determined how to handle the report volume pertaining to this case, about which the parties were conferring at the time the defendants filed the Motion, but the Department can commit that the Attorney General will not release that volume to the public, if he does at all, before Friday, January 10, 2025, at 10:00 a.m. The Special Counsel will not transmit that volume to the Attorney General before 1:00 p.m. on January 7, 2025. The Government will file a response to the defendants’ Motion no later than January 7, 2025, at 7:00 p.m.

Update: Aileen Cannon has enjoined DOJ from releasing the report at all. This wildly exceeds her authority and makes it more likely that it’ll come out under Presidential immunity.

Meanwhile, David Weiss plans to release a report under the same authority some time after Wednesday.

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Judge Merchan’s Half Baby

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Judge Merchan has rejected Trump’s challenges to his conviction in the New York hush money case and scheduled a sentencing for January 10. But he has intimated he will sentence Trump to an unconditional discharge — meaning he won’t serve a jail sentence or probation.

In my opinion, this is a tactical decision and like every other legal decision about Donald Trump, unsatisfying and inadequate.

I think Merchan is trying to affirm the import of the jury’s guilty verdict, while daring Trump to ask for more.

The tradeoff I think Merchan is making is that by giving Trump nothing tangible to lose except his claim to innocence, he nevertheless situates the case in such a way that Trump can appeal.

But Merchan did so while weighing the record in favor of judicial independence.

After affirming the seriousness of Trump’s crime and the evidence against Trump (the first of ten “Clayton Factors” Merchan was obliged to consider given Trump’s request he just make the case go away), Merchan next addressed Trump’s claim that his contributions to society say he should escape punishment.

Merchan used that factor to discuss Trump’s attacks on Courts and Rule of Law. Among the items Merchan listed was the need to gag Trump; he noted, too, that even the Supreme Court backed his decision.

Defendant argues that his “contributions to this City and the Nation are too numerous to count,” and concludes his argument under this section by referencing two NY Supreme Court cases which are entirely distinguishable.T Defendant’s Motion at pg. 59. This Court agrees that Defendant served his country as President and will do so again in a matter of weeks. However, that service is but one of the considerations to weigh under this factor.

Despite Defendant’s unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, individual prosecutors, witnesses and the Rule of Law, this Court has refrained from commenting thereon unless required to do so as when ruling on motions for contempt of court. However, Defendant, by virtue of the instant motion, directly asks this Court to consider his character as a basis to vacate the jury verdict, and this Court must do so in accordance with the requirements of CPL section 210.40(1)(d).

Defendant’s disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole. See People’s Response at Section IV. C. In the case at bar, despite repeated admonitions, this Court was left with no choice but to find the Defendant guilty of 10 counts of Contempt fot his repeated violations of this Court’s Order Restricting Extrajudicial Statements (“Statements Order”), findings which by definition mean that Defendant willingly ignored the lawful mandates of this Court. An Order which Defendant continues to attack as “unlawful” and “unconstitutional,” despite the fact that it has been challenged and upheld by the Appellate Division First Department and the New York Court of Appeals, no less than eight times. Indeed, as Defendant must surely know, the same Order was left undisturbed by the United States Supreme Court on December 9,2024. [citation]. Yet Defendant continues to undermine its legitimacy, in posts to his millions of followers. Indeed, this is not the only instance in which Defendant has been held in contempt or sanctioned by a Court.8 Defendant’s character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed under this factor in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.

8 For example, Defendant has been held in contempt by courts within this jurisdiction and sanctioned by others. People of the State of New York v. The Trump Organizotion, Inc., No. 451G851202O [citation] (“Frivolous lawsuits should not be used as a vehicle for fundraising or fodder for rallies or social media. Mr. Trump is using the courts as a stage set for political theater and grievance. This behavior interferes with the ability of the judiciary to perform its constitutional duty) [my emphasis]

Trump claimed he was too important to sentence. Judge Merchan responded that Trump has undermined the Courts at every level.

And then he noted that the Supreme Court had backed him, Merchan, in defending the sanctity of his court.

That’s not the only legal issue Merchan highlighted as important. Merchan also noted Trump’s claim to President-elect or retroactive immunity.

Defendant presents this Court with the novel theory of President-elect immunity as it applies to [citation], arguing that such immunity presents a “legal impediment to conviction.” For the reasons stated above, this Court remains unpersuaded that President-elect immunity is the law and thus, neither that doctrine, nor the Supremacy Clause or Presidential Transition Act present a legal impediment to imposition of sentence. Alternatively, Defendant seeks, in essence, a form of retroactive immunity. Both of these theories are briefly addressed below.

Essentially, what Defendant asks this Court to do is to create, or at least tecognize, two types of Presidential immunity, then select one as grounds to dismiss the instant matter. First, Defendant seeks application of “President-elect immunity,” which presumably implicates all actions of a President-elect before taking the oath of office. Thus, he argues that since no sitting President can be the subject of any stage of a criminal proceeding, so too should a President-elect be afforded the same protections. Defendant’s Motion at pg. 35. Second, as the People characterize in their Response, Defendant seeks an action by the Court akin to a “retroactive” form of Presidential immunity, thus giving a defendant the ability to nullify verdicts lawfully rendered prior to a defendant being elected President by virtue of being elected President. It would be an abuse of discretion for this Court to create, or recognize, either of these two new forms of Presidential immunity in the absence of legal authority. The Defendant has presented no valid argument to convince this Cout otherwise. Binding precedent does not provide that an individual, upon becoming President, can retroactively dismiss or vacate prior criminal acts not does it grant blanket Presidential-elect immunity. This Court is therefore forbidden from recognizing either form of immunity.

Merchan is right: these are garbage theories. Theories that even most of SCOTUS would reject.

And that may be why Merchan adopted his wildly unsatisfying approach to sentencing. First, he rejected Alvin Bragg’s bid for an Alabama Rule because it would not permit Trump ability to appeal — to appeal his retroactive immunity claims, to appeal his claim about judicial prerogatives. Similarly, Merchan declined to just hold the sentence in abeyance unless he was unable to sentence Trump.

This Court has considered and now rejects the People’s suggestion that it adopt the “Alabama Rule” which would preserve the jury verdict while terminating the proceedings as such a remedy would deny Defendant the pathway he needs to exhaust hrs appellate rights.

The Court has also considered the People’s alternative proposal of holding sentence in abeyance until such time as Defendant completes his term of Office and finds it less desirable than imposing sentence prior to January 20, 2025. The reasons are obvious. However, if the Court is unable to impose sentence before Defendant takes his oath of office, then this may become the only viable option.

And after telling Trump the only way he would just hold the sentence in abeyance is if he were not able to sentence him before his term, Merchan informed him that he’s inclined to given him a sentence of unconditional discharge, in part so Trump can appeal.

a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.

Merchan is giving Trump a choice: Show up — even by video — and be sentenced as an adjudged fraudster — with the expectation that he won’t go to jail and if he wants to appeal things like his retroactive immunity and bad character he can do so. Or he can no show.

In which case the sentence will hang over his head for the entirety of his presidency.

None of this is satisfying.

But Judge Merchan seems to have carved out a little corner of rule of law — retroactive immunity and the judicial contempt on which even this SCOTUS has already upheld Merchan — that Trump can test before the Supreme Court. If Trump wants to take those chances, he can have an unconditional discharge precisely so he can make that appeal.

Or he can have the sentence hanging over his head for his entire term.

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Trump’s GOP Is Running on a Platform of Freeing Seditionists and Cop Assailants

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I’m halfway done my first review of the materials Jack Smith released today.

All of us who have followed this have concluded there’s not any new news (though the presentation of it reveals certain things about Smith’s investigation).

So why did Trump’s lawyers wail and wail about releasing these materials before the election?

Just days ago, after all, Trump’s lawyers argued that releasing these materials would alter the election.

It may be this:

As the appendix documents, on March 11, 2024, Trump posted to Truth Social that, along with closing the border and DRILL, BABY, DRILL, his first priority, Day One, was to free the seditionists and cop assailants who had fought for him on January 6.

Prosecutors cited that post to support their argument that Trump ratified the violence that day.

As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding,722 thus providing evidence of his intent on January 6.

The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence—all made while the defendant was a private citizen after the end of his term in office—are probative of his intent during the charged conspiracies.

722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022): GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, 7rump claims violence he inspired on Jan. 6 was Pence’s fault, WASH. PostT, (Mar. 13, 2023, 8:09 p-m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. [my emphasis]

The GOP candidate for President has a criminal docket. And in that criminal docket, today, the government included a post promising to free seditionists and cop-assailants with the same urgency with which Donald Trump promises to close the border. “My first acts,” the GOP standard-bearer stated, would include freeing the people who assaulted the Capitol on January 6.

This was the proposal back in March, one of the first things Trump did after Nikki Haley conceded. And since that time, the entire GOP has fallen into line behind that plan.

The Republican Party’s candidate for President is running on a platform of freeing cop assailants and seditionists.

There’s nothing new in this appendix. But that post does clarify things considerably.

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Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

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After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

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Mr. Smith Goes to SCOTUS

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Yesterday, Jack Smith submitted his brief on Trump’s immunity claim to SCOTUS. I’m working on a post on it, but thought I should go ahead and post this stub so people can chat until that’s done.

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Jack Smith Is Not Amused

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By Trump’s motions to dismiss the stolen document case.

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