Donald Trump’s [Miles] Starr Chamber

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When the government first asked, on October 13, to use a filter review to access content seized from Dan Richman five years ago, it described that Jim Comey, “prefers to challenge the underlying search warrant first before any review takes place.”

But in his response yesterday, Comey didn’t do that.

Rather, after a heavily-redacted discussion of the problems with DOJ’s past and prospective access to the content, he proposed that Judge Michael Nachmanoff should deny the government’s filter request without prejudice, allowing DOJ to reconsider its bid for a filter protocol after they’ve first answered a set of questions.

For the foregoing reasons, the Court should deny the government’s motion to implement its proposed filter protocol without prejudice, and direct the government to disclose the following information to allow both the Court and the defense to assess the appropriateness of the protocol:

1. The legal authority for the contemplated review.

2. Whether any quarantined materials have been accessed by, shared with, or provided to the case team (and, if so, which materials were reviewed by which personnel on which day), and whether any such materials have been produced in discovery.

3. The protocol used during the prior filter review, including search parameters, segregation measures, privilege determinations, and associated logs or correspondence.

4. Whether the government intends to search raw returns or only the set already filtered in the prior review. See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 181 (4th Cir. 2019), as amended (Oct. 31, 2019) (holding that “the magistrate judge erred” by approving a filter protocol “without first ascertaining” the materials to be reviewed).

5. Whether non-lawyers will conduct any portion of the Filter Review. See ECF No. 38-1 ¶ 2 n.2 (“The Filter Team is comprised of Two Assistant United States Attorneys, and their support staff”) (emphasis added); see In re Search Warrant Issued June 13, 2019, 942 F.3d at 177 (criticizing the use of non-lawyers to designate documents as nonprivileged).

One might explain the reason why he’s doing this in one or two ways.

The first is a procedural reason. The warrants and original filter protocol themselves were probably reasonably sound for the purpose to which they were put: investigating whether Richman leaked classified information. The heavily redacted bit describes four different warrants and the loaner AUSAs’ original filing described content seized from “an image of a computer hard drive, an iCloud download, the backup of an iPhone, and the backup of an iPad.” There are five sealed exhibits to the filing (none cited in unredacted form), of which four are presumably the warrants and one may pertain to the original protocol, though there is something identified in footnote 4 that “was not produced,” not even after Comey’s team asked about it on October 23. While the seized material included a great deal of material, including material pertaining to Richman’s clients other than Comey and “sensitive and private materials belonging to his students,” the original filter protocol withheld, “private materials related to his students, as well as privileged materials, [from] the case team.”

But, contrary to the approach used with (for example) Michael Cohen as well as what we’ve been able to publicly review of warrants implicating Rudy Giuliani, in which prosecutors obtained new warrants every time the scope or target of an investigation changed, the government appears not to have obtained new warrants to search this material for a different crime, the alleged lie Comey told in 2020.

[I]t appears that the government has not obtained any search warrants in connection with the instant matter, including any warrant authorizing a search of the Arctic Haze materials for evidence of the two offenses with which Mr. Comey is charged.

Comey cites several precedents, one in the Fourth Circuit, that would require a new warrant.

He points to other reasons, too, why the government would need to obtain new warrants: because these warrants are not only stale, but they predate the alleged crime here, testimony from October 2020.

The government now proposes to use those warrants to search for evidence of different crimes that arose from a proceeding that occurred after USAO-DDC obtained the Arctic Haze warrants.

Comey also objects because some part of this was sealed by another court, which by date and location would probably have been an order from Beryl Howell when she was Chief Judge in DC.

The government has no lawful basis to review materials obtained more than five years ago, in a closed investigation that ended without any charges, pursuant to stale warrants for separate offenses, including materials that remain under seal by another court. [my emphasis]

Comey maintains that he can challenge the use of these warrants here.

The Fourth Amendment plainly prohibits the government from doing exactly what it seeks to do here: the Arctic Haze warrants were obtained more than five years ago in a separate and now-closed criminal investigation and authorized the seizure of evidence of separate offenses. Yet the government seeks to turn those warrants into general warrants to continue to rummage through materials belonging to Mr. Comey’s lawyer in an effort to seize evidence of separate alleged crimes. The Court should not authorize the government to conduct an unlawful review.

[snip]

Mr. Comey reserves his right to move to suppress these warrants, to the extent the government continues to use them in this manner. See, e.g., United States v. Place, 462 U.S. 696, 709–10 (1983) (a seizure lawful at its inception can nevertheless violate the Fourth Amendment based on agents’ subsequent conduct); DeMassa v. Nunez, 770 F.2d 1505, 1508 (9th Cir. 1985) (“an attorney’s clients have a legitimate expectation of privacy in their client files”). Until the government answers the questions the defense has previously raised about these warrants, which to date have remained unanswered and which are detailed at the end of this submission, the defense will not be in a position to file an appropriately targeted suppression motion.

But even the language here notes at one problem: Normally you challenge a Fourth Amendment violation by suppressing evidence for use at trial. Here, Comey is trying to do more. He’s trying to prevent investigators from even accessing it. And so, instead, he’s asking the judge to force prosecutors to answer some basic questions in the guise of allowing him to suppress the warrants.

Until the government answers the questions the defense has previously raised about these warrants, which to date have remained unanswered and which are detailed at the end of this submission, the defense will not be in a position to file an appropriately targeted suppression motion.

Which brings us to the second possible reason for responding this way: question 2. Who already accessed privileged material, when did they do so, and has the government turned over that material in discovery? The answer to that question, especially, would force investigators to confess if they’ve already snuck a peek into what is in the privileged communication.

The “spill” that Comey suspects happened may have happened recently: on the day Lindsey Halligan obtained the indictment.

That footnote, marked in pink, cites the Criminal Case Cover Sheet, which, in spite of being labeled as “REDACTED,” is not, and so among other things, reveals the name of one of two FBI agents on the case, Miles Starr (the other being Jack Eckenrode, who investigated Scooter Libby but then left the team, and who joined John Durham in chasing Russian disinformation for four years).

I’ve redacted Starr’s phone number. You’re welcome, Miles.

But the Sheet also includes an error: it lists three counts, including the one, pertaining to Comey’s answer to Lindsey Graham’s question about a CIA referral (one that FBI may never have received) that Kash Patel and John Ratcliffe ret-conned into a “Clinton Plan” on which to hang the Durham investigation. That’s the one the grand jury no-billed.

While none of that explains when and how Starr and Eckenrode snuck a peek of privileged information, it might explain why.

Kash and Eckenrode are still chasing the theory behind the dropped charge, that Jim Comey purportedly knew Hillary Clinton had a plan (one fabricated by Russia and then embellished by Eckenrode and Durham to claim Hillary wanted to frame Trump) to emphasize Donald Trump’s ties with Russia. That’s the logic of the larger conspiracy theory that Eckenrode has been hired to chase. It was and remains Russian disinformation, but that didn’t stop Eckenrode the last time he tried this.

Indeed, because DC USAO obtained warrants in 2019 and 2020, there may be communications between Comey and his attorneys about the John Durham investigation, about Eckenrode’s past witch hunt, which would explain why Comey is so interested in the scope of proposed review, which the loaner AUSAs still haven’t told Comey.

Because Kash and Eckenrode are chasing that conspiracy theory, this is a much bigger issue than just the case before Nachmanoff. As I laid out in my post predicting that John Durham’s investigation was a preview of coming attractions (even before I knew that Kash had brought Eckenrode back!), Durham already played games to access attorney-client privileged material.

In response, Sussmann accused Durham of abusing the same grand jury process he abused with Benardo (abuse, ironically, that debunked Durham’s conspiracy theory).

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

He also revealed that some of those privilege claims went back to August — that is, the weeks after Durham should have closed up shop.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022). [my emphasis]

In a hearing on May 4, right before trial, Joffe’s lawyer revealed they had demanded Durham press a legal claim much earlier, in May 2021.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

Ultimately, Cooper did bow to Durham’s demand, but prohibited them from using those documents at trial.

That didn’t prevent DeFilippis from attempting to use the privileged documents to perjury trap his one Fusion witness, the kind of perjury trap that might have provided a way to continue the madness indefinitely.

There must have been nothing interesting there: most of the Fusion documents were utterly irrelevant to the Sussmann charges, but could implicate the Danchenko ones, but Durham didn’t use them there, nor did he explain their content in his final report.

That effort involved, among other things, abusing the prosecutorial process to bypass rulings (such as the sealing order mentioned above) that Beryl Howell had already made, and using one criminal case, against Michael Sussmann, to obtain attorney-client privileged materials that would only be relevant in another criminal case, the Igor Danchenko case (or a larger conspiracy).

Particularly given the reticence of the loaner AUSAs to tell Comey what happened, whether they have warrants, who read what, this feels like an attempt to retroactively bless access that investigators already got. And the stakes are bigger than this one case. As Durham (and Eckenrode) did in 2022, this likely would primarily serve to feed their bigger conspiracy theory.

Plus, if Eckenrode is sneaking peeks at Comey’s privileged communications still in FBI custody, there’s nothing that would prevent him from doing the same with all the other people whose privileged communications have been seized during this years-long witch hunt.

And that’s why you ask these questions.

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Love in the Time of Hegemonic Suicide

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It started with the willful destruction of USAID.

I start what is sure to be a kaleidoscopic (or some might call disorganized) reflection on the undercurrents of power as Trump attempts to build a new America based on illusion by reminding that the first assault was on USAID. USAID was targeted, among other reasons, because it supported the kind of pro-democracy NGOs that have haunted Viktor Orbán for years, and also because the realities of aid in the field look funny to those pickled in the provincialism of culture war.

But it’s a useful reminder, because the destruction of USAID was both the first great strike against Congress’ power of the purse (because Marco Rubio was refusing to spend on programs Congress had appropriated, including programs with bipartisan support, like PEPFAR), and also the consensual destruction of a great deal of soft power the United States built up going back to the Cold War. Then, during the Cold War, USAID was recognized as a low-cost way to contest another great power and, along the way, to do something good and maybe even create a few new reliable markets for farmers in the heartland. Now, it had become a symbol of a past hegemony that conspiracy theorists, starting with the richest man in the world, had made suspect.

This reflection will focus on how Stephen Miller’s two-faced war on America’s immigrant diversity and Latin America exists in tension with Trump’s attempt to subjugate both the Democrats and China. I’m attempting to capture these intertwined threads to get to a point I’ve raised before. We know what the decline from democracy to authoritarianism looks like. Trump is overtly following Orbán’s path to competitive authoritarianism. But far too few have considered what it means that Trump is pursuing that model while committing hegemonic suicide.

The willful destruction of USAID laid an important foundation for two “negotiations” that are bedeviling Trump’s effort to consolidate power: the trade war Trump picked with China, and a funding fight with Democrats over whether Congress will be Congress anymore.

Art of the Deal guy is conducting a bunch of “negotiations” right now. Many of them involve levying threats, whether threatening to withdraw government funding, launching frivolous lawsuits, imposing draconian tariffs, or even charging people with fabricated crimes, and in response, extorting bribes, like the free work some white shoe law firms decided to give away or payment for the ballroom that will scar the edifice where the East Wing used to be. For most negotiating partners, such threats leave two choices: suing in an attempt to deem the entire extortion attempt unlawful, or attempting to minimize the extracted tribute through flattery.

But for China and the Democrats it is different. The government of China doesn’t do flattery — not of foreigners, anyway. Plus, China has been preparing for this moment since the last time Trump tried it, in his first term, in part by increasing its own capacity, in part by replacing American suppliers with countries China has been wooing with soft power for years.

And while Democrats have been suing and suing and suing, Trump’s ultimate goal for the minority — whose party currently leads most of the net donor states in the US — is nothing less than subjugation. Trump was happier to negotiate with Hamas than negotiate with Chuck Schumer and Hakeem Jeffries. Trump intends to make them, all Democrats, give him the adulation they refuse him.

And so Trump’s negotiating “tactics” for both are similar: a serial ratcheting up of demands, based on the belief that the desired end — subjugation — is the means to win the negotiation. In both cases, this obstinance has instead created vulnerabilities. By pushing China to impose an export control regime not dissimilar to those the US uses, Trump gave China leverage over the Rest of World countries with which China will continue to trade even as Trump shrivels inside his manufactured walls, the countries Trump once wished to peel off from China.

And every time Russ Vought commits another unprecedented Antideficiency Act crime, it proves the Democrats’ point that there can be no negotiations unless that lawlessness ceases.

But when Trump decided that he had to pay military servicemembers, he directly violated congressional statute. It is “by far the most illegal budgetary action he’s taken as POTUS, potentially setting the stage to break everything,” writes Bobby Kogan, the senior director of federal budget policy at the Center for American Progress. “The mechanism through which Trump is paying the troops is the most blatant large Antideficiency Act (ADA) violation in US history.”

Trump is taking money from an account specifically earmarked for research, development, testing, and evaluation, and spending it on military pay, which is forbidden by both the Constitution and law (the Antideficiency Act carries a jail sentence of up to two years), and something administration officials publicly promised Congress they would not do. Dave Jamieson reports at HuffPost that Trump is planning a similar process to keep paying ICE and CBP law enforcement.

Even in three votes on paying essential workers, Democrats refused to budge for a bill that ceded any more power to Vought (the end vote was the same as cloture for the continuing resolution has been, but two different Democrats — Jon Ossoff and Raphael Warnock — voting with Republicans instead of Catherine Cortez Masto and Angus King).

Vought becomes a greater liability as he gleefully cuts things cherished by Republicans, too, like the promise of an easier commute into NYC.

Having failed thus far, Trump is going to withhold emergency funding for SNAP starting this week. Either he believes that Democrats have empathy (or courage) that Republicans don’t, or he forgets that poor people across the country rely on government aid. But he believes that starving families will force Democrats to bow.

Donald Trump is destroying not just the village but broad swaths of the country in his bid to humiliate his two adversaries. He is seeking capitulation to his person rather than any benefits for the United States.

Even as the country remains shut down, Marco Rubio and Stephen Miller have become NeoNeoCons.

Trump has reverted to Cold War means, launching a larger covert war based on dubious legal claims, what his buddies call the “Donroe Doctrine,” a name as stupid as the concept.

Mr. Trump’s new directive appears to envision a different approach, focused on U.S. forces directly capturing or killing people involved in the drug trade.

Labeling the cartels as terrorist groups allows the United States “to use other elements of American power, intelligence agencies, the Department of Defense, whatever, to target these groups if we have an opportunity to do it,” Marco Rubio, the secretary of state and national security adviser, said on Thursday in an interview with the Catholic news outlet EWTN. “We have to start treating them as armed terrorist organizations, not simply drug dealing organizations.”

The use of Special Forces against alleged drug cartels in other countries rests on the same kind of legal chicanery and nested fabrications that went into Stephen Miller’s unlawful deportation of mostly innocent Venezuelans to Bukele’s concentration camp. And even though the B-1 bombers flying off the coast of Venezuela were readily tracked on commercial apps, Trump explicitly denied them. They’re not hiding, though, that they’re sending the ships that have for decades projected power in the Middle East to take out a two-bit dictator in Venezuela.

But that’s not the only bullshit Trump is selling. For example, Trump’s latest cartel designation — of Cartel de los Soles — is of a cartel that (unlike TdA) may not even exist.

While some of US President Donald Trump’s right-wing led allies in South America — Argentina, Ecuador and Paraguay — have echoed his designation of “Soles” as a terrorist organization, many have doubts such a group even exists.

Venezuela itself, and neighbor Colombia, insist there is no such thing as “Cartel de los Soles.”

Some experts agree, saying there is no evidence of the existence of an organized group with a defined hierarchy that goes by that name.

[snip]

“There is no such thing, so Maduro can hardly be its boss,” Phil Gunson, an analyst at the International Crisis Group think tank, told AFP of the so-called “Cartel de los Soles.”

[snip]

According to the InSight Crime think tank, the name was ironically coined by Venezuelan media in 1993 after two generals were nabbed for drug trafficking. The sun is a symbol on the military uniform epaulettes of generals in the South American country.

“Rather than a hierarchical organization with Maduro directing drug trafficking strategies, the Cartel of the Suns is more accurately described as a system of corruption wherein military and political officials profit by working with drug traffickers,” InSight Crime said on its website.

Yet that is the sketchy basis on which Stephen Miller has authorized the murder of one after another boat full of unidentified, first in the Caribbean and now in the Pacific.

The Administration’s thinking — starting from Stephen Miller’s goal of using dead Latinos as a propaganda stunt– is insanely childish.

Then there are the senior officials who see Venezuela as a means to project a tough-guy, defender-of-the-homeland image. Stephen Miller views the air strikes as an opportunity to paint immigrants as a dangerous menace, according to one of the White House officials. Vice President J. D. Vance, though often inclined toward isolationism, has pushed the necessity of defending U.S. borders. And Hegseth, who prefers to be known as the war secretary, is seeking a means of projecting military strength in a region where Defense Department planners hope to reassert American primacy. Finally, there’s Trump himself, who wants to score a foreign-policy victory amid frustrations over his inability to end the war in Ukraine. One close ally of the president’s told us that he was also drawn to the chance to take decisive action, as he did with June’s Iran bombings. “He can give the order and watch it explode. It’s clear-cut and simple, and no American gets hurt,” that ally told us.

This is not the Dulles brothers playing chess. It’s a bunch of insecure boys overturning the checkers board because the rules assign the same number of pieces to both sides. But they’re toppling the board while wielding very big weapons and sketchy — or no — targeting data.

Indeed, they look like they’re playing, from the failure to destroy a submersible in open water, leaving two very inconvenient survivors, to the shrapnel strike on the Vice President’s security, to the new propaganda corps made up of Russian useful idiots.

Such buffoonery extends to Miller’s war on Blue cities. For all the untold human damage it has and is causing,  it nevertheless continues to shine in its Butt Cracks and Beer Belly squalor, including in its training dropouts who can’t pass an open book test on the Fourth Amendment.

Like the invasion of Latin America, it feigns root in intelligence, as viewed by the invasion of an entire apartment building on Chicago’s South Shore Drive predicated on the alleged presence of one or at most two Tren de Aragua members, looking just like an apartment invasion John Yoo dreamt up 24 years ago.

[I]n execution, a number of aspects of the raid looks just like what the raid Yoo envisioned two decades ago.

The raid took place in the middle of the night; a warranted search would mandate permissible hours — usually after dawn — when the search could be conducted.

The entire raid was predicated on the presence of (initially) two and in retrospect just a single Tren de Aragua member. But virtually every one was detained while law enforcement searched for active warrants, and 37 people were arrested. With the exception of a few apartments, the entire building was searched, and left in a mess.

[snip]

In other words, this raid looks just like what we would expect if Stephen Miller were applying already-dodgy John Yoo opinions targeting terrorists who really did launch a military style attack on the US, and applied it, instead, against a gang that Miller has lied persistently to turn into something greater than it is.

But mostly, like the make-believe cartel just added to the terrorist list, the predicate for invading Blue cities remains make-believe.

Stephen Miller’s justifications for invading Blue cities is no more based in reality than the latest cartel he invaded on which to hang murderboats and Special Operations invasions.

Miller has fed Trump manufactured propaganda about Oregon. And those on the ground have manufactured false claims. Or, in Oregon, the state informed the Ninth Circuit that a key claim a panel used to overturn Trump appointee Karin Immergut’s injunction on Guard deployment — that much of the Federal Protective Services had had to deploy to Portland, was false: “defendants admitted that 115 FPS officers have never been redeployed to Portland.”

Or in Chicago, the explanation that Greg Bovino contemptuously violated a retraining more with claims of “commercial artillery shell fireworks.” “The statement is a lie,” lawyers for Illinois stated plainly about the claimed use of commercial artillery shell fireworks.

It’s still very much in question whether appellate courts and SCOTUS will permit Trump to invade Blue cities based entirely on propaganda, as Susan Graber asked in her dissent to her colleagues’ decision to allow Trump to invade Oregon (a dissent that noted the vagueness of the now-debunked FPS claim).

We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth. By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.

Steve Vladeck lays out the play of all three Blue states — California, Oregon, and Illinois — challenging Trump’s invasion. Joyce Vance has a great update on the Ninth. And Chris Geidner catalogs all the innocent Americans whose rights are being trampled along the way, with three attempts to get Justice Kavanaugh to answer for the Kavanaugh stops he blessed.

Trump is engaging in a kind of magical realism in both Latin America and the United States, inventing the most transparent, outlandish bullshit to justify military invasions by incompetent dolts of both other countries and Blue states.

And for all his dickwagging about power, both of those campaigns make the United States far weaker.

But all that’s happening against the background of Trump’s intransigence — his demand that, while he conducts these invasions, both China and the Democrats (and more recently, Canada) simply bow before him.

This is one reason I’m especially fascinated by Trump’s treatment of Argentina, an attempt to support their peso long enough to stave off a debacle for Javier Milei in this weekend’s legislative elections. That part succeeded: Milei’s party won more than enough seats to sustain his veto power.

President Javier Milei scored a decisive political win Sunday, strengthening his position in Argentina’s Congress and securing a lifeline for his audacious free-market revolution backed by President Trump.

With nearly 92% of votes counted, Milei’s Freedom Advances party won almost 41% of the national vote, putting it on track to more than double its representation in Congress. That means his party and allies should secure at least one-third of the seats in both chambers—the critical threshold that allows Milei to preserve his veto power and defend his sweeping decrees.

The result, stronger than most polls had predicted, gives Milei fresh political momentum after months of unrest over deep spending cuts and a grinding recession last year. It also shores up his standing with Washington and the International Monetary Fund, which have tied future financial support to the survival of his austerity experiment. Market analysts expect Argentine bonds and the peso to rally when trading opens Monday, reflecting relief that Milei still has political traction.

But at what expense?

The only conceivable way to spin this bailout as a benefit for the US — other than for Scott Bessent’s hedge fund buddies and a right wing populist, like Trump, tainted by corruption problems — is to imagine that this bailout, the cost of which soon may rise to $40 billion, helps shore up US allies on a continent increasingly cultivated by China.

That is, in the same year Trump willfully destroyed USAID (yearly budget, $30 billion for the entire world), the best explanation for spending up to $40 billion bailing out a failed economic ideology is that same purpose: soft power.

For just one country.

In a nice touch, the folks in Treasury who’ve implemented Bessent’s bailout of his hedgie buddies have been instructed not to take and disseminate pictures of the wreck Trump has made of the East Wing.

“As construction proceeds on the White House grounds, employees should refrain from taking and sharing photographs of the grounds, to include the East Wing, without prior approval from the Office of Public Affairs,” a Treasury official wrote on Monday evening in an email to department employees viewed by The Wall Street Journal.

A Treasury Department spokesman said the email was sent to employees because photos could “potentially reveal sensitive items, including security features or confidential structural details.”

But the tone deaf bailout wasn’t enough. Nor was Argentina’s poaching of US soybean markets in China, the final death blow for the US soybean market this year. But in the last week, Trump has signaled he will turn to Argentine beef imports in an attempt to bring sky-high beef prices down.

In an interview with Fox Business on Thursday, Agriculture Secretary Brooke Rollins said: “Currently, Americans consume 12 million metric tons of beef. 10 million, we produce in this country. 2 million, we import. Out of 12 million, [the Argentine quota] would be 20,000 every quarter. This is not a massive influx in the millions of tons I think that some have thought of beef from Argentina.”

But Christian Lovell, an Illinois cattle farmer and the senior director of programs at Farm Action, a nonpartisan farm organization, said: “If Trump goes through with what he outlined, I do believe it’s a betrayal of the American rancher. It’s a feeling that you’re selling us out to a foreign competitor.”

On Wednesday, Trump reacted to the backlash from cattle ranchers.

“The Cattle Ranchers, who I love, don’t understand that the only reason they are doing so well, for the first time in decades, is because I put Tariffs on cattle coming into the United States, including a 50% Tariff on Brazil,” Trump wrote on social media.

“It would be nice if they would understand that, but they also have to get their prices down, because the consumer is a very big factor in my thinking, also!” he added.

In a statement, Colin Woodall, CEO of the National Cattlemen’s Beef Association, a trade association for beef producers, said the organization and its members “cannot stand behind the President while he undercuts the future of family farmers and ranchers by importing Argentinian beef in an attempt to influence prices.”

Trump got what he wanted in Argentina, propping up his chainsaw puppet for the next little while.

But in doing so, he made the US far weaker, making China’s leverage over the US even greater.

Trump’s attempts to extend his power by force — to replace American hegemony with personalized coercion — are and will continue to backfire, diluting the power of that coercion.

No one knows what happens after that.

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Lindsey Halligan Lectures Someone ELSE about Conflicts

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A filing in the Jim Comey case bearing the name of Lindsey Halligan claims that it is very important to disclose conflicts as early as possible.

1 “[Bo]th the Sixth Amendment and the Virginia Rules of Professional Conduct invite, indeed compel, prosecutors to alert a trial court to a defense attorney’s potential or actual conflict.” United States v. Cortez, 205 F. Supp. 3d 768, 775 (E.D. Va. 2016) (emphasis added) (Ellis, J.); see also United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997) (Wilkinson, C.J.) (noting that a district court “has an obligation to foresee problems over representation that might arise at trial and head them off beforehand”).

Only, the filing is not disclosing conflicts that Halligan, the Trump personal defense attorney turned unlawfully appointed US Attorney who didn’t identify her client at the arraignment, might have.

Rather, in a bid to accelerate consideration of the loaner prosecutors’ filter request (which I wrote about here), it insinuates that Pat Fitzgerald has a possible conflict on this case. As it describes, some of the communications that (it all but confirms) Dan Richman designated as privileged back in 2019 include Fitzgerald.

Relevant to this motion, the attorney has informed the government that the quarantined evidence contains communications between the defendant and several attorneys. The current lead defense counsel appears to be a party to some of these communications.

To turn that into a potential conflict, the loaner prosecutors (and probably also James Hayes, who again shows as the author of the document, but who has not filed a notice of appearance in the case) wildly misrepresent the DOJ IG Report on Jim Comey’s retention of the memos he wrote memorializing his conversations with Trump.

[T]he defendant used current lead defense counsel to improperly disclose classified information.2

2 See U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02, (August 2019), (located at https://web.archive.org/web/20250818022240/https://oig.justice.gov/reports/2019/o1902.pdf, last accessed October 19, 2025).

(They provide a Wayback Machine link, because Trump killed the DOJ IG site in his bid to kill the main Inspector General organization.)

While the IG Report describes that Comey sent Fitzgerald four of the memos — which Comey believed to be unclassified — he sent the memo that Richman shared for this NYT story separately, meaning the report does not substantiate the claim that Fitzgerald was in the loop on that story.

May 14, 2017

Comey sends scanned copies of Memos 2, 4, 6, and 7 from his personal email account to the personal email account of one of his attorneys, Patrick Fitzgerald. Before sending, Comey redacts the second paragraph from Memo 7 involving foreign affairs because Comey deems it irrelevant. On May 17 Fitzgerald forwards these four Memos to Comey’s other attorneys, David Kelley and Richman.

May 16, 2017

Comey sends a digital photograph of Memo 4 (describing the meeting in which Comey wrote that President Trump made the statement about “letting Flynn go”) to Richman via text message from Comey’s personal phone. Comey asks Richman to share the contents, but not the Memo itself, with a specific reporter for The New York Times. Comey’s stated purpose is to cause the appointment of a Special Counsel to ensure that any tape recordings that may exist of his conversations with President Trump are not destroyed. Richman conveys the substance of Memo 4 to the reporter. The New York Times publishes an article entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation.”

[snip]

As described in this section, on May 14, 2017, Comey transmitted copies of Memos 2, 4, and 6, and a partially redacted copy of Memo 7 to Fitzgerald, who was one of Comey’s personal attorneys. Comey told the OIG he thought of these Memos as his “recollection recorded,” like a diary or personal notes. Comey also said he believed “there’s nothing classified in here,” and so he thought he could share them with his personal attorneys.

And even using the FBI classification review of the memos he shared rather than Comey’s own review (he was an Original Classification Authority), he shared just six words, classified “Confidential” with his attorneys, and Richman didn’t share that information with Mike Schmidt.

FBI conducts a classification review of Comey’s Memos. The FBI determines that Comey correctly classified Memo 1 (which Comey did not share with anyone outside the FBI); that Memos 4, 5, and 6 are unclassified but “FOUO”; and that portions of Memos 2, 3, and 7 are classified, as follows:

Memo 2: Six words from a statement by President Trump comparing the relative importance of returning telephone calls from three countries, one of which the Memo notes the President mentioned twice, are classified as “CONFIDENTIAL//NOFORN.” Comey did not redact this information before sharing Memo 2 with his attorneys.

Memo 3: Information about sources, methods, investigative activity, and foreign relations is classified as “SECRET//NOFORN.” Comey did not share Memo 3 with anyone outside the FBI.

Memo 7: An assessment of a foreign leader by President Trump and discussion of foreign relations is classified as “CONFIDENTIAL//NOFORN.” Comey redacted this paragraph before he sent Memo 7 to his attorneys.

As Comey’s response notes, in a subsequent FOIA, a judge determined just one word was Confidential.

6 The portion of the memorandum the review team determined should be classified as “Confidential” concerned the President’s reference to then National Security Advisor Michael Flynn’s questionable judgment in not having notified the President sooner of a call from the leader of a particular country. (Report at 44). In that context, President Trump compared certain countries to a smaller country and the upclassification treated the name of a smaller country as classified for fear of offending that country. (Id. at 44-45). Mr. Comey’s reaction to the upclassification was: “Are you guys kidding me?” (Id. at 47). A federal court in unrelated litigation brought under the Freedom of Information Act (“FOIA”) ultimately rejected all but one of the subsequent classifications. (Id. at 3 n.4; 47 n.78; 58 n.100 (citing Cable News Network, Inc., v. FBI, 384 F. Supp. 3d 19, 25-26, 36, 38 (D.D.C. 2019))). The classification of the memorandum has been addressed in subsequent litigation and the single word that remains “CONFIDENTIAL” is the name of a single country.

That is, even Richman didn’t release classified information here. There’s even less to suggest Fitzgerald did.

The loaner prosecutors (and James Hayes) just made that up. Which is what Comey noted in a response.

[T]he government’s effort to defame lead defense counsel provides no basis to grant the motion.

[snip]

[T]here is no good faith basis for attributing criminal conduct to either Mr. Comey or his lead defense counsel. Similarly, there is no good faith basis to claim a “conflict” between Mr. Comey and his counsel, much less a basis to move to disqualify lead defense counsel.

Their goal in doing so is now clear: They want to get details of what Richman said while representing Comey after Richman had left and Comey was fired from the FBIm a time period that is irrelevant to charges pertaining to what Richman did as an FBI employee.

And to do that, they’re treating the Comey Memos as akin to some kind of grand insurance fraud (the common crime behind the precedent they’re invoking to conduct a highly invasive privilege review), when it was quite legitimately something you would do — sharing your own memorialization of sensitive events — with a lawyer. Which is probably why, per the original filing, Comey plans to challenge the warrant to get to that material.

Their filing is at least disingenuous about something else. They claim they need Judge Nachmanoff to make a decision about this quickly so that they can meet their trial deadlines.

Prompt implementation of the filter protocol is necessary in this case so the current trial milestones are maintained and met. This has been a point of emphasis from the Court. This desire is also shared by the government.

Here, the potentially protected material could contain exculpatory or inculpatory evidence relevant to the defense and the government. Currently, the government is not aware of the contents of the potentially protected material. As a party to some of the communications contained in the potentially protected material, the defense necessarily has awareness.

But this bid for a filter team already necessarily disrupts the trial deadlines.

As I pointed out here, the current schedule — especially the “the fastest CIPA process you have ever seen in your lives” that Judge Nachmanoff ordered at the arraignment — presumes that Fitzgerald will get clearance quickly.

The schedule proposed by the parties assumes that attorney Patrick Fitzgerald receives his security clearance, or interim clearance, within a reasonable time, and that all the classified materials to be reviewed are made available to the defense within a reasonable time.

You don’t agree to that CIPA schedule and then decide you want to kick Fitzgerald off the case. At that point, you’re effectively fucking with Comey’s Speedy Trial right. If you, as prosecutors, are compelled to identify conflicts, you’re compelled to do so before you build an entire trial schedule around there not being one.

And you especially don’t get to do that when this material has been in DOJ custody since 2019.

If there were reason to believe the discussions that Comey memorialized about Trump’s attempt to kill the Russian investigation included evidence of a crime, Bill Barr would have pursued it back in 2020. He didn’t.

And yet now the loaner prosecutors want to delay Comey’s trial so they can make a mad bid to get material that was clearly privileged.

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Shit-Posting All the Way to SCOTUS

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I was going to write about how important today’s filing in Illinois’ challenge to Trump’s invasion is.

Thankfully, Steve Vladeck did that so I don’t have to.

As for why it’s this application that presents the Court with a make-or-break moment, it’s worth reflecting on what it would mean if the full Court grants the Trump administration’s request.

First, and immediately, it will mean that the Trump administration is allowed to deploy troops onto the streets of Chicago (and Broadview) to effectively militarize the enforcement of our immigration laws. Although the application to the Supreme Court is replete with references to protecting federal property, the federal government doesn’t need the authorities that are currently blocked to do that; it can use regular troops, almost certainly without invoking 10 U.S.C. § 12406 or any other statute. (This is the “protective” power.) The power the Trump administration is seeking here is much broader—and would almost certainly mean that federalized National Guard troops would start accompanying ICE officers on immigration raids and other operations—even if they’re not making the arrests themselves. That would be a … dramatic … escalation relative to where we are today.

[snip]

Third, and most importantly, it would allow the federal government to obtain emergency relief based upon either (1) a limitless view of what it means to be “unable to execute the laws of the United States”; or (2) an incredibly one-sided factual narrative that was expressly rejected by the district judge, and that the unanimous court of appeals panel refused to disturb. The justices aren’t factfinders, and absent some “clear” reason to believe that the lower courts erred in discrediting the Trump administration’s factual claims (when, in fact, there are lots of reasons to believe that the district court was right), to grant relief in the face of those findings is to not just show stunning disrespect to both the lower courts and the appropriate standard of review; it’s to send the message that the facts just don’t matter—so long as five or more justices personally believe whatever the federal government is telling them.

That would be a big enough problem in other contexts (I’ve already written about the casual relationship Justice Kavanaugh’s Vasquez Perdomo concurrence has with the facts), but it would be utterly catastrophic here. After all, armed with a grant of emergency relief on this application, what is to stop the Trump administration from making comparably inflated and/or invented claims about the situations on the ground in other American cities as a pretextual basis for deploying troops? And what’s to stop it from making those claims not (just) tomorrow, but next November—on the eve of the midterm elections?

Having outsourced that gloomy contemplation to him, I want to point to several things that might lead SCOTUS to exercise some sanity.

First, Vladeck cited from Judge April Perry’s ruling on the lack of credibility of the affiants that the Administration submitted. But he didn’t note the paragraph following the general credibility assessment, in which Judge Perry described how the government threatened to invade the courthouse itself.

Finally, the Court notes its concern about a third declaration submitted by Defendants, in which the declarant asserted that the FPS “requested federalized National Guard personnel to support protection of the Federal District Court on Friday, October 10, 2025.” Doc. 62-3. This purported fact was incendiary and seized upon by both parties at oral argument. It was also inaccurate, as the Court noted on the record. To their credit, Defendants have since submitted a corrected declaration, and the affiant has declared that they did not make the error willfully. Doc. 65-1. All of the parties have been moving quickly to compile factual records and legal arguments, and mistakes in such a context are inevitable. That said, Defendants only presented declarations from three affiants with first-hand knowledge of events in Illinois. And, as described above, all three contain unreliable information. [links added]

Over the weekend, in response to a question about the Insurrection Act, Trump noted that one benefit (to him) of invoking it would be to shut down the courts.

This is not just a threat to the sovereignty of states. It is, explicitly, a threat to the coequal status of the courts, up to and including SCOTUS. That may make them view this threat differently.

And Trump hasn’t helped his credibility since then.

Perhaps most spectacularly, the details regarding a number of “Kavanaugh stops” have come out since Judge Perry ruled for Chicago, not least the case of a teenaged girl who was violently detained in Hoffman Estates.

A teen in Hoffman Estates was thrown to the ground by what appeared to be a federal agent this past weekend, and the teen and two of her friends were detained for hours before they were released.

Her parents spoke out Monday after they say their daughter, 18-year-old Evelyn, is still shaken from the experience.

Evelyn’s parents said her boyfriend got a call that U.S. Immigration and Customs Enforcement agents were in his neighborhood. They went to warn people who live there and recorded the officers. This led to a violent arrest, in which the U.S. Department of Homeland Security said it did not take part.

Video from the Friday incident shows sirens and undercover law enforcement cars flooding the Hoffman Estates neighborhood where the arrest happened.

The video shows Evelyn getting pulled out of the passenger seat. She is then thrown to the ground, all while saying she is not resisting arrest, as the officer handcuffed her and appeared to put a knee on her back.

[snip]

In a post on X, Department of Homeland Security Assistant Secretary Tricia McLaughlin commented on Evelyn’s arrest video, saying, “Imagine being so desperate to demonize law enforcement you post a video from a burglary arrest Chicago police made over a year ago. This isn’t even ICE.”

Hoffman Estates police, however, said ICE was in the area on Friday.

Her treatment not only debunks Justice Kavanaugh’s claim that the impact of racial profiling on US citizens is minimal, but it exposes Tricia McLaughlin as a fabricator.

Meanwhile, even as Trump is claiming a rebellion in Chicago, as many as 250,000 people showed up for the No Kings protest in Chicago on Saturday. While there were clashes at Broadview, where the ICE facility is, I’ve seen no reports of disturbances at the protest itself. Chicago can rightly point to the peaceful protest as a counter to the inflated claims from the government.

Then there’s Trump’s childish tantrums this weekend.

Chicago is arguing that Trump is invading not for any reason tied to law enforcement, but out of animus. It’s hard to imagine any more succinct expression of such animus than Trump’s shit post responding to the protests.

And finally, the fiasco at Camp Pendleton — where Trump whined after Gavin Newsom shut down the freeway during Trump’s live ammunition display at the base, only to be vindicated when shrapnel from the event hit JD Vance’s motorcade.

Vladeck is right: If SCOTUS grants Trump relief here, it will be far worse than any of their earlier shadow docket interventions. Let’s hope that Trump’s weekend tantrums will finally convince the court that he can no longer be indulged.

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Stephen Miller’s Trains Don’t Run on Time

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I was going to write a piece anticipating the showdown at SCOTUS over Stephen Miller’s invasion of Chicago, which may well determine the future of democracy in the US.

But as I was contemplating all the lies that Miller and his henchman have been caught telling in Chicago and Portland, two other stories came out that highlight how bad Miller is at execution. Both pertain to his effort, built on a edifice of lies, to rationalize a war in Venezuela based off a largely manufactured claim that Tren de Aragua is “invading the US” on behalf of Nicolás Maduro.

Chronologically, WaPo provides new details about the quid pro quo behind Marco Rubio’s deal to send planeloads of Venezuelans to a concentration camp in El Salvador: The US would have to send the people who had cooperated with DOJ to expose Nayib Bukele’s ties to MS-13, a gang that Trump purported to treat as a terrorist organization.

In the days before the Trump administration deported hundreds of Venezuelan immigrants to a notorious prison in El Salvador, the president of that country demanded something for himself: the return of nine MS-13 gang leaders in U.S. custody.

Secretary of State Marco Rubio, in a March 13 phone call with Salvadoran President Nayib Bukele, promised the request would be fulfilled, according to officials familiar with the conversation. But there was one obstacle: Some of the MS-13 members Bukele wanted were “informants” under the protection of the U.S. government, Rubio told him.

To deport them to El Salvador, Attorney General Pam Bondi would need to terminate the Justice Department’s arrangements with those men, Rubio said. He assured Bukele that Bondi would complete that process and Washington would hand over the MS-13 leaders.

[snip]

The deal would give Bukele possession of individuals who threatened to expose the alleged deals his government made with MS-13 to help achieve El Salvador’s historic drop in violence, officials said. For the Salvadoran president, a return of the informants was viewed as critical to preserving his tough-on-crime reputation. It was also a key step in hindering an ongoing U.S. investigation into his government’s relationship with MS-13, a gang famous for displays of excessive violence in the United States and elsewhere.

We’ve known from earlier reporting that Bukele’s ask was top level MS-13 members in US custody. We didn’t know they were informing against Bukele.

Note that this reported conversation with Bukele on March 13 was two days before the invocation of the Alien Enemies Act and three before the men — most guilty of nothing more than sporting less incriminating tattoos than the Secretary of Defense — got shipped away in a rush.

One of the many things that remains unexplained about the story is the reason for the rush — the rush to get an agreement, the rush to put men on planes.

Even given the rush (and the narrowly averted government shutdown), that’s when things started falling apart, when the ACLU got notice of the deportations, got an order from James Boasberg enjoining the deportations, and so set Erez Reuveni on a path that would get him fired. Not long after, one of the Salvadorans that Rubio intended to deal to Bukele, Vladimir Arévalo Chávez (who is mentioned in the WaPo story, started challenging the dismissal of his case and subsequent deportation, ultimately leading Judge Joan Azrack to order parts of the docket unsealed.

Then there are the murderboats in the Caribbean — a series of wildly illegal strikes lacking any recognizable legal justification. The murderboats appear to be an attempt to draw Nicolás Maduro into a war — though the Atlantic describes the underlying motivation as something far more craven, little more than an attempt to “paint immigrants as a dangerous menace.”

Then there are the senior officials who see Venezuela as a means to project a tough-guy, defender-of-the-homeland image. Stephen Miller views the air strikes as an opportunity to paint immigrants as a dangerous menace, according to one of the White House officials. Vice President J. D. Vance, though often inclined toward isolationism, has pushed the necessity of defending U.S. borders. And Hegseth, who prefers to be known as the war secretary, is seeking a means of projecting military strength in a region where Defense Department planners hope to reassert American primacy.

Donald Trump’s top aides have all decided to murder people in cold blood as a propaganda stunt.

Even before the most powerful military in the history of the world failed to fully execute its murderboat mission days ago, there were cracks in Miller’s murderboat propaganda campaign — not just the increasing demands for some kind of credible legal explanation, but also the resignation of SouthCom Commander Alvin Holsey. And even before all that, it became clear that Miller’s murderboat targets were not what he claimed they were: Venezuelans bringing fentanyl to the United States. The boats were too small. That’s not how fentanyl is trafficked to the US, most importantly, they weren’t all Venezuelans. Two were Trinis. Weeks ago, Colombian President Gustavo Petro started complaining that Colombians were being targeted.

And then the most powerful military in the history of the world failed its mission, operating in uncontested waters, to completely destroy a submersible it claims was shipping drugs to the United States.

The most powerful military in the history of the world failed to destroy a boat and as a result two very awkward targets — neither Venezuelan — survived.

And now, because of the slovenly execution of Miller’s attempt to gin up a war with Venezuela, Petro and Trump are ratcheting up a war of words over the earlier targeting of what Petro claims was a fishing boat in distress inside Colombian waters.

The slovenliness is so ingrained that the people writing Trump’s tweets can’t even spell Colombia properly.

Stephen Miller is incredibly powerful and so fascistic that Trump even hesitates to describe his ambition.

But he is also downright slovenly.

Stephen Miller is attempting to start a war to rationalize his domestic war. And he can’t even be fucked to dot his I-s and cross his T-s.

Update: We have always been at war against Eastasia.

The U.S. military has killed three men and destroyed another boat it suspected of running drugs in the Caribbean Sea, this one alleged to have been affiliated with a Colombian insurgency group, Defense Secretary Pete Hegseth announced on Sunday.

It was the seventh boat known to have been attacked since early September as part of the Trump administration’s use of the military to kill people suspected of smuggling drugs as if they were enemy soldiers in a war, rather than arresting them as criminals. The latest strike took place on Friday, and Mr. Hegseth said in a social media post on Sunday that it had targeted a vessel associated with the National Liberation Army, a Colombian rebel group known as the E.L.N.

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No Kings Thread

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When I told my taxi driver I was in Dublin to go to a No Kings rally at the American Embassy, we had quite the chat. He came from a big Republican family, he explained, before he went on to catalogue how many of his relatives had been shot during the Easter Rising in 1916 and at which of the locations we were driving by.

No Kings rings a bit different here in Dublin.

According to the organizer, we had about 400 people — 100 more than they had in the summer — representing almost every state. Some of us live here, some just showed up to protest in the middle of vacations of varying lengths.

We were right on a main road, with lots of people honking in solidarity.

We had maybe 6 frogs, one dancing dinosaur, and one chicken over the course of the protest, including a frog from Portland.

There were Epstein signs and LGBTQ flags and one Good Trouble sign and some fancy artwork.

The signs that really got me were held by kids, like these siblings who scolded, “Masked warrantless ICE agents are not American” and demanded, “stop holding back my future.”

Another sign read, in Irish, “Freedom for Palestine, Freedom for America.”

I’m used to seeing the Gaelige used to support Palestine. I had not seen the US lumped in alongside before.

I posted a few more pictures in this thread.

Over a century after Ireland itself declared No Kings once and for all, this was safe and easy. May your No Kings rally today be as safe!

Tell us about it in the thread.

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Eagle Ed Martin and George Santos Just Proved Tish James’ Vindictive Prosecution Claim

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Donald Trump’s weaponization of government against his adversaries is a catastrophic assault on rule of law.

But in those efforts, he continues to do things that may backfire. I’ve noted repeatedly how poorly he chooses the political martyrs he creates. Just the other day, for example, Tish James got rock star treatment when she introduced and endorsed Zohran Mamdani.

In addition, Trump is conducting his vengeance tour in such a ham-handed fashion that that one after another after another after another after another after another after another prosecutor quit or resigned to much notice. Each will be available as witness to the politicization of DOJ.

Aside from LaMonica McIver (whose arrest the chattering class seem to have forgotten), Trump bolloxed the timing — the sequencing of his attacks — as well.

He indicted the well-lawyered Jim Comey, thus far the shoddiest case, first, and did so in EDVA’s rocket docket. That means that those who follow will benefit from the work — and possibly even precedents — Comey obtains. By the time Attorney General James is arraigned on October 24, for example, both Comey’s motion to disqualify Lindsey Halligan and his motion for selective and vindictive prosecution will be public.

And yesterday, with Trump’s commutation of George Santos’ prison sentence, he botched the timing again.

Trump’s clemency has already featured in motions for selective and vindictive prosecution. Both McIver and Sean Dunn (the sandwich guy) have invoked the Jan6ers that Trump pardoned as people who viciously assaulted cops but were freed. But in McIver’s case, as I laid out here, the government claimed — partly by placing an auto-pen in Trump’s hand — that prosecutors who dismissed the pending cases were left with no discretion after Trump issued his order.

McIver’s claim faces a threshold, insurmountable defect: the January 6 Defendants cannot be considered similarly situated because they all were pardoned. As a consequence, their ongoing prosecutions had to be dismissed without regard to the exercise of prosecutorial discretion, and they could not be prosecuted for January 6th related crimes thereafter. Because a similarly situated individual is someone that “could have been prosecuted for the offenses for which [the defendant was] charged, but were not prosecuted,” and the January 6 Defendants on their face do not meet those basic criteria, McIver’s motion must fail. See Hedaithy, 392 F.3d at 607 (quoting Armstrong, 517 U.S. at 470); see also Armstrong, 517 U.S. at 469.

But in Tish James’ case, the guy most responsible for her charges — the guy who has been literally stalking her in a dirty old man trench coat — also happens to be the guy who exercised discretion in the commutation of George Santos. Indeed, Eagle Ed Martin, who in addition to serving as Trump’s weaponization czar, also serves as Pardon Attorney, boasted of his role in the commutation.

To be sure, the kinds of fraud with which Eagle Ed charged Tish James are different than the kinds to which Santos pled guilty. Eagle Ed and Lindsey the Insurance Lawyer are effectively attempting to criminalize James’ generosity, her provision of a $137,000 home to her great niece. Even if she did what is alleged (and all the evidence suggests she did not), any benefit to James herself would be less than $19,000.

Meanwhile, Santos defrauded identified victims — some of them vulnerable seniors — of almost $375,000, along with $200,000 in ill-gotten gains himself. The victims include:

  • The Republican Party (which matched funds Santos hadn’t earned)
  • Donors whose credit cards he defrauded
  • Redstone Strategies investors
  • New York State’s Unemployment Insurance
  • Congress

Whereas Trump claims that the fraud for which James prosecuted him had no victims, because the banks ultimately got paid back (true of the loans James obtained as well), Santos’ crimes had a number of real victims, victims who have not yet been made whole.

And Donald Trump made no secret why he sprung Santos from prison: in crafting a false comparison with Richard Blumenthal, Trump declared that, “at least Santos had the Courage, Conviction, and Intelligence to ALWAYS VOTE REPUBLICAN!”

Alleged Democratic fraudsters get charges whereas far more dangerous Republican fraudsters win a Get Out of Jail Free card. It couldn’t be more clear.

It’s certainly possible that, if James used Santos as a comparator (along with other Republicans, like Ken Paxton, who haven’t been charged), DOJ would claim Trump may not have known about the various kinds of financial fraud Santos engaged in.

But if he doesn’t know that, it’s the fault of the Pardon Attorney.

The guy in the dirty old man trench coat, who has been stalking New York’s Attorney General all the while.

DOJ might claim that they can’t share any details of Santos’ commutation.

Too late!

In DOJ’s response to McIver, they already exhibited a willingness to share details of the treatment of specific pardons.

10 On September 2, 2025, the undersigned Assistant U.S. Attorneys spoke with the Deputy Pardon Attorney from the Office of the Pardon Attorney who confirmed that: (i) the January 6 Defendants with then-pending cases received pardons under the Pardon and were eligible to receive certificates of pardon, and (ii) that any January 6 Defendant was still considered pardoned even if a certificate of pardon was not requested. Additionally, the Deputy Pardon Attorney provided examples of certificates of pardon issued for January 6 Defendants with previously pending cases who requested a certificate.

I’m sure it seemed very clever, putting Eagle Ed in charge of both hunting Trump’s enemies and freeing his friends. But in this particular case it might get tricky.

At the very same time Eagle Ed was stalking Tish James up and down the Eastern Seaboard, desperately trying to find some crime to charge her with, he was also busy finding a way to free a much bigger, confessed fraudster from prison.

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Jim Comey Prepares to Prevail at SCOTUS

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On Nicole’s podcast today, I said that many of the criminal issues that will arise from Trump’s politicization of DOJ won’t be all that controversial at SCOTUS (and SCOTUS is least awful on criminal justice issues). But I said one area would likely break new ground: selective and vindictive prosecution.

Jim Comey’s prosecution — and that of everyone else Trump is pursuing — fits poorly in the existing precedents for selective and vindictive prosecution, even while they clearly are vindictive.

Plus, I noted, that Trump’s penchant for yapping about legal cases even as DOJ attempts to protect him from liability in them conflicts with the language of Trump v. USA that — recklessly — puts the President in a prosecutorial function.

And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

Either Trump is properly in a prosecutorial role, in which case he needs to be at the center of these cases (and interventions like the Eric Adams bribery case), exposed to discovery. Or, his interventions are improper.

The current state of affairs, where DOJ claims the President is immune from discovery, permitted to speak endlessly about criminal cases, yet order up criminal prosecutions, is fundamentally inconsistent with rule of law.

Which is why I’m interested in four people Comey has added to his defense team (while also getting permission to submit a 45-page selective and vindictive prosecution brief, 15 pages extra).

Comey has added:

Donaleski is interesting enough, not least given the loaner AUSA bid to play games with filter teams. Plus, she would have overlapped with Maurene Comey at SDNY (and with some of Jim Comey’s old pals when she first got there, probably).

But the others, especially Dreeben, signal that Comey is going into this with a plan and the expectation that he will have to argue this case before SCOTUS.

This team is a signal that Comey intends to reverse some of the damage done by Trump v. USA.

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Fridays with Nicole Sandler

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Listen on spotify (transcripts available)

Listen on Apple (transcripts available)

 

Link to Tim Miller interviewing Robby Roadsteamer

Link to ICE officer being an asshole to cops

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The Bolton Indictment

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The John Bolton indictment is a substantive document. If the claims about classification levels stand up, it is as substantive as the indictment against Trump (though with less sensitive documents and none of the obstruction).

For each of 8 charged documents (each was charged twice, once for transmission and once for retention) it describes Bolton sending the information to one of his family members via an AOL account that got hacked by Iran, then keeping it such that it was found when the FBI searched his house earlier this year.

Importantly, none of these are marked classified documents, like Trump’s stolen documents were. They are his excerpts. So there will be an enormous contest over the classification determinations, especially since Kash and John Ratcliffe were involved.

There are ten charged retained documents (that is, the same 8, plus two more). The latter two may be marked — they may be the old Iraq documents Bolton referred to.

The indictment describes someone — presumably from Iran — attempting to blackmail Bolton (at which point he told the FBI that he had been hacked).

It also quotes Bolton mocking Pete Hegseth for sharing classified information on Signal.

There are defenses to this case (including that Trump won’t prosecute Hegseth). But it is a solid case.

Update: Bolton is quoted referring to “diaries” throughout this indictment.

One of the FBI Agents on this case reportedly was involved in the Joe Biden case.

In that case, Biden fairly argued that DOJ was applying a different standard to him than DOJ had applied to Reagan in Iran-Contra.

It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.

Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.

Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916

We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]

But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.

By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.

Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.

Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.

Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]

I assume Bolton will make a similar argument.

Update: Because people are asking, here’s a really rough comparison of Bolton’s indictment with Trump’s.

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