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Emil Bove Throwing Gold Bars Off the Titanic

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As multiple outlets have reported, the woman appointed to lead the DC US Attorney’s Office Criminal Division, Denise Cheung, resigned yesterday after refusing orders from Ed Martin and Emil Bove to order a bank to freeze appropriated EPA funds based on probable cause (as opposed to just the possibility) that a crime was committed.

As Reuters reported, Cheung was asked to open a criminal investigation, and then asked to freeze funds based on probable cause that a crime was committed. When she refused, she was ordered to resign.

Denise Cheung, who supervised criminal cases at the U.S. Attorney’s Office in Washington, said she had been ordered to open a probe into a contract that she did not identify and that she believed the request was not supported by evidence, in a letter reviewed by Reuters.

When she declined to launch a grand jury investigation citing a lack of evidence, she said she was ordered instead to pursue an asset seizure to prevent the recipient of the contract from drawing down the government funds.

[snip]

“When I explained that the quantum of evidence did not support that action, you stated that you believed that there was sufficient evidence,” she wrote.

“Based upon the evidence I have reviewed, I still do not believe there is sufficient evidence to issue the letter you described, including sufficient evidence to tell the bank there is probable cause to seize the particular accounts identified.”

Cheung said in her letter she was ordered to resign. She announced her departure early Tuesday.

Effectively, she was ordered to chase Lee Zeldin’s conspiracy theories, in turn based on a Project Veritas video of a single staffer who was almost certain inebriated (even before you consider PV’s practice of misleadingly editing videos).

 

Politico’s trade outlet (subscriptions to which are being cut everywhere as a purported cost-savings) explains what really happened, including that Zeldin may be the one violating the law in attempting to clawback appropriated funds.

[I]f Zeldin tries to claw back money from the Greenhouse Gas Reduction Fund without cause, it could put the government at risk of breaching its contracts with some or all the green bank participants, experts say. And that could cost taxpayers more in damages than the sum Zeldin hopes to recover.

“If the government abrogates the contract without legal justification, then it will eventually owe damages to these people when they sue, but will not be getting the services that are under contract here,” said David Super, a professor of law and economics at Georgetown University Law Center.

During the Biden administration, EPA officials worked with the Treasury Department to contract Citibank as the financial agent for two grant programs — the $14 billion National Clean Investment Fund, or green bank, and the $6 billion Clean Communities Investment Accelerator program, which seeks to build green lending capacity at institutions that serve low-income communities.

That means the money is in accounts at Citibank in the names of the eight awardees for those two programs. The money and income from any interest belongs to the grantees to be used for purposes consistent with their award agreements with EPA. But Citibank reports extensively to Treasury and EPA on any transactions.

People familiar with the contract between Citibank and Treasury and granted anonymity to discuss a private contract say it has provisions to allow EPA and Treasury to exercise a security interest on those accounts if it discovers the awardees have engaged in conduct that meets official definitions of waste, fraud and abuse.

In those instances, the federal government could freeze accounts or recover funds. But Zeldin did not reference any specific instances of misconduct when he announced his plans for the green bank program Wednesday on the social media site X. He also stated that EPA had found no evidence of “any wrongdoing” on the part of Citibank.

Click through for further explanation that there is oversight in place — or would be, if not for Trump’s firing spree.

In a functioning bureaucracy, DOJ would tell Zeldin that he’s the one out of order, unless and until more evidence than a Project Veritas video is developed.

But that’s not what happened. In her resignation letter, Cheung describes that she first reached out to the FBI and then spent much of a day engaged in a good faith effort to assess the allegations.

Earlier yesterday. I was asked to review documentation supplied by the Office of the Deputy Attorney General (ODAG) to open a criminal investigation into whether a contract had been unlawfully awarded by an executive agency before the change in Administration and to issue grand jury subpoenas pursuant to this investigation. I was told that there was time sensitivity and action had to be taken that day because there was concern that contract awardees could continue to draw down on accounts handled by the bank handling the disbursements. I conferred with others in the Office, all of whom have substantial white collar criminal prosecution experience, and reviewed documentation provided by ODAG, in determining whether the predicate for opening such a grand jury investigation existed. Despite assessing that the existing documents on their face did not seem to meet this threshold, an ODAG representative stated that he believed sufficient predication existed, including in the form of a video where statements were made by a former political appointee of the executive agency in question.

After eight years of Republican insistence that one should never predicate an investigation solely on oppo research, and less than two weeks after SDNY closed a criminal investigation into Project Veritas based on suspicion they committed crimes in pursuit of political hit jobs, DOJ was pressuring prosecutors to open an investigation relying primarily on a Project Veritas video.

I contacted a supervisor at the Washington Field Office (WFO) of the FBI and provided him with the materials received from ODAG and also referenced the possible existence of the video and statements made by the head of the executive agency. I further conveyed ODAG’s desire to send out the freeze letter to the bank as soon as possible as to avoid subsequent payouts. The FBI-WFO supervisor forwarded links of these statements and the video, which I also reviewed. Despite the federal holiday yesterday, the FBI-WFO supervisor, as well as other FBI-WFO managers, spoke frequently throughout the day yesterday with me to discuss the matter, including what, if any, possible criminal charges might be applicable, as well as the sufficiency of the evidence of any criminal offense or the connection of any alleged crime to the accounts at issue.

During this period, I sent a draft freeze letter provided by the FBI-WFO supervisor to the PAUSA at 4:31 p.m. In an email sent at 4:46 p.m., the PAUSA conveyed suggested language “in case it [was] helpful” from the ODAG representative, which included language represented to be from the Second Circuit, including the phrase “the government has probable cause to believe that the funds on deposit in the above-referenced account(s) at [named bank] are subject to seizure and forfeiture to the United States based upon violations…” I subsequently informed the PAUSA that the suggested language was not appropriate to the matter at hand.

Despite expressing some concern about the current lack of evidence of any apparent crime and the need to send out any such freeze letter, FBI-WFO personnel were able to consult with necessary individuals, including legal counsel, at their office. I was told that if FBI-WFO was unwilling to send out such a freeze letter, that you would direct someone from USAO-DC to send out such a correspondence to the bank. However, that contingency did not come to pass, as FBI-WFO determined that they were willing to send out the freeze letter, but asked that I first send them an email stating that, based on the evidence, there was possible evidence of certain criminal violations. I emailed them the following statement: “Based upon the information we received from ODAG and public-source materials, including a video of statements by a former [executive agency] official, USAO-DC believes that there may be conduct that constitutes potential violations of 18 U.S.C. Sec. 371 (conspiracy to defraud the United States) and 18 U.S.C. Sec. 1343 (wire fraud) that merits additional investigation.”

After they received this email, FBI-WFO subsequently issued a letter to the bank recommending a thirty-day administrative freeze on certain assets. After this letter was issued at approximately 7:28 p.m. yesterday night, I received a call from the PAUSA and you shortly thereafter. You expressed your dissatisfaction about the adequacy of the FBI-WFO letter and criticized that the language merely “recommended” that a freeze of the accounts take place, notwithstanding that the same language was used in the draft I sent to the PAUSA earlier in the day. You also directed that a second letter be immediately issued to the bank under your and my name ordering the bank not to release any funds in the subject accounts pursuant to a criminal investigation being run out of USAO-DC. When I explained that the quantum of evidence did not support that action, you stated that you believed that there was sufficient evidence. You also accused me about wasting five hours of the day “doing nothing” except trying to get what the FBI and I wanted, but not what you wanted. As I shared with you, at this juncture, based upon the evidence I have reviewed, I still do not believe that there is sufficient evidence to issue the letter you described, including sufficient evidence to tell the bank that there is probable cause to seize the particular accounts identified. Because I believed that I lacked the legal authority to issue such a letter, I told you that I would not do so. You then asked for my resignation.

By going public like this, Cheung alerts the magistrates who might approve such orders and Judge James Boasberg who would oversee any grand jury investigation that this investigation is being predicated without probable cause.

But she also makes clear that Martin and Bove are going to predicate criminal investigations off the flimsiest propaganda, perhaps, in part, as cover that Trump is the one breaking the law by violating the Impoundment Act. And if they need to get rid of career prosecutors with over two decades of experience to do that — the gold bars of the Department of Justice — they won’t hesitate.

The Law Is Bigger Than The Bullies

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Emil Bove III is a bully. There’s only one way to deeal with a bully: fight back harder.

Consider Bove’s treatment of the public integrity section lawyers as part of his campaign to dismiss the prosecution of Eric Adams. In the end, two lawyers and Bove himself signed the pleading. The motion says that Bove made the decision himself; his signature is an admission of that fact. Now the matter goes to District Court Judge Dale Ho. Marcy has a good description of the current status.

What are Judge Ho’s options? One suggestion made by three former prosecutors is the appointment of a special counsel to examine the actions of the DoJ with respect the dismissal. They suggest that the special counsel could recommend several courses of action, including disciplinary proceedings. The Immigration and Nationality Law Committee of the New York City Bar Association echoes this recommendation.

Disciplinary proceedings

Lawyers are subject to ethical obligations in their handling of legal matters. I don’t know where the lawyers involved in this decision are licensed, so I don’t know the particulars of the rules or proceedings that would apply to them. In general, most states have adopted a version of the ABA Rules Of Professional Conduct (“ABA Rules”).

The Federal Rules Of Criminal Procedure  do not have a rule equivalent to FRCP 11, discussed here. ABA Rule 3.3 is  similar to Rule 11. It prohibits lawyers from making false statements of fact or law to the court or to offer evidence known to be false. Here’s the text of ABA Rule 3.3(b):

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

ABA Rule 8.4  is directly implicated in this case. Here’s the relevant text:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ….

The history of ABA Rule 8.4 can be found in this opinion of the Standing Committee On Ethics and Professional Responsibility from 1992. The predecessor of this rule is DR 7-105(a), which provided “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” New York did not delete DR 7-105(a) when it updated its Rules of Professional Conduct. Footnote 2 contains a partial list of other states that kept the old rule.

There’s a lot of speculation floating around suggesting there’s a hidden agreement between Adams and Trump or his henchmen about immigration enforcement by NYC officials and/or something else. We can’t know all the facts. It’s notable that so many career DoJ officials resigned rather than dismiss the case, but that’s not conclusive. Tom Homan, Trump’s Border Czar, spouted words that some saw as confirming the quid pro quo, but he denied that later.  In any event, the dismissal without prejudice seems to give the DoJ the ability to force Adams to act as Trump wishes or face revival of the charges. Here’s an example:

“Eric Adams no longer works for New Yorkers. He works for Donald Trump. Period,” state Sen. Zellnor Myrie, a mayoral candidate, said at a news conference. “Mayor Eric Adams will be under the thumb and control under Donald Trump until November.”

Let’s look at that possibility. It certainly looks like the use of the threat of criminal prosecution to achieve the Trump Administration’s desires in utterly unrelated civil matters. That’s an obvious violation of the provisions of DR 7-105(a) as in effect in New York, save for the word “solely”.

Also, in general, threatening criminal action to obtain something of value is a crime, the crime of extortion. The elements of that crime are

1. A threat to a person
2. For the purpose of gaining some material end
3. With the statutory mens rea,

The threat can be a threat of criminal prosecution, as every lawyer will tell you.

If a case like this one came before a Disciplinary Board under the equivalent of DR 7-105(a) the burden would be on the movant to show that there was no other lawful purpose for the dismissal without prejudice than to force Eric Adams to act as Trump or his henchmen want him to. Bove claims that the investigation will continue, although the case is ready for trial as it stands. I’d guess the facts are enough to shift the burden of proof to the target to show that there is a need for more investigation or some other lawful purpose.

If the case is under ABA Rule 8.4, the burden is on the movant to show that the target committed the crime of extortion, or that the target used others to achieve that result, or that the target lied about the facts or the relevant law.

It may be that the target’s position as a public official increases the likelihood that discipline is appropriate. Here’s Comment 7 to ABA Rule 8.4:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

What about the other lawyers? Whether or not they resigned, they are covered by ABA Rule 3.3(b) above. All DoJ lawyers represent the US, so it may be that they or other DoJ lawyers have obligations under that rule.

Discussion

1. John Eastman was deeply involved in Trump’s schemes to stay in office after being beaten by Joe Biden in 2020. A group of lawyers and judges filed a complaint with the State Bar of California asking that his law license be revoked. That matter was finally resolved in March 2024, when Eastman was disbarred. That’s too slow. If bar discipline is to have any meaning, it must be rapid, especially in the face of this lawless administration.

2. The advantage of bar discipline is that Trump and his henchmen can’t do anything about it. Admission to the bar is solely the responsibility of the Supreme Court of each state. The federal government has no role whatsoever in the matter, and Trump has no legal or financial leverage.

3. The threat of loss of his law license may not affect Bove, but it will haunt every career DoJ lawyer. Who knows, it might even affect the decisions of Trump-addled lawyers who might think of joining the DoJ.

4. DoJ lawyers have forfeited any claim to judicial respect. They should be shamed by every court. Here’s a delightful example. Here’s another from Judge Coughenour in the Seattle birthright citizenship case:

“In your opinion is this executive order constitutional?” he asked.

Said Shumate, “It absolutely is.”

“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”

DoJ lawyers should not be forced to give up their self-respect just to hold on to a job.

Emil Bove’s Missing Documents

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Imagine you’re Judge Dale Ho.

You’re presiding over the Eric Adams case, that of his co-conspirator Erden Arkan, and have gotten notice of another co-conspirator, Mohamed Bahi, as a related case (meaning that Bahi is likely supposed to plead guilty before you in coming days — what was intended as a last step before superseding Adams with obstruction).

The Adams case has blown up very publicly. The prosecution team has been withdrawn from the case. But even before that, the Acting Deputy Attorney General has requested you dismiss the case, without prejudice. You know Bove’s pulling a fast one. But technically, the only things before you are the Nolle Prosequi request and the withdrawal motion.

What do you do? Even beyond the question of whether you grant the request to dismiss without prejudice (Bove’s ask), you dismiss with prejudice (perhaps the easiest and most legally justifiable thing to do), or you muck things up, what do you do to get there?

Four documents pertaining to this blow up (in addition to the ones filed before Judge Ho) were released publicly last week. Here’s the purpose they ostensibly serve:

  • February 10: Emil Bove tells Danielle Sassoon to dismiss the case, without prejudice
  • February 12: Danielle Sassoon asks Pam Bondi to meet
  • February 13: Bove responds to Sassoon, accepting her resignation
  • February 13: Hagan Scotten resigns

But the documents do more. All four of them weigh in on two key paragraphs that made it into the Nolle Prosequi letter: the two stated reasons for dismissing the case against Adams, which look like this in the dismissal request:

5. In connection with that determination and directive, the Acting Deputy Attorney General concluded that dismissal is necessary because of appearances of impropriety and risks of interference with the 2025 elections in New York City, which implicate Executive Order 14147, 90 Fed. Reg. 8235. The Acting Deputy Attorney General reached that conclusion based on, among other things, review of a website2 maintained by a former U.S. Attorney for the Southern District of New York and an op-ed published by that former U.S. Attorney.3

6. In connection with that determination and directive, the Acting Deputy Attorney General also concluded that continuing these proceedings would interfere with the defendant’s ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies. See, e.g., Executive Order 14159, 90 Fed. Reg. 8443; Executive Order 14165, 90 Fed. Reg. 8467. The Acting Deputy Attorney General reached that conclusion after learning, among other things, that as a result of these proceedings, Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary for Adams to govern and to help protect the City.

Public comments from Damian Williams that barely mention Adams create an appearance of impropriety, Bove claims, and the prosecution would interfere with Adams’ ability to govern New York, which Bove suggests (by citation to two of Trump’s immigration crackdown Executive Orders) consists primarily in chasing migrants.

Again, the other letters are not formally before Ho (yet). But Ho has presumably read Hagan Scotten’s take on these two excuses, which labels the first as a pretext and the second as coercion.

In short, the first justification for the motion—that Damian Williams’s role in the case somehow tainted a valid indictment supported by ample evidence, and pursued under four different U.S. attorneys is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

Mind you, Bove has invented something in his immigration excuse — that “Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary.” He actually ordered Sassoon to, “take all steps within your power to cause Mayor Adams’ security clearances to be restored,” in his first letter (which, again, is not formally before Ho). He complained, again, that “Mayor Adams has been denied a security clearance that limits his access to details of national security issues in the City he was elected to govern and protect” in his response.

It’s transparent bullshit. While it may be the case that the Biden Administration had limited sharing of classified information with Adams after his indictment for allegedly taking undeclared gifts from a foreign government [!!!], that’s entirely the prerogative of the President, as Trump has made clear with his hasty grant of security clearance to people manifestly unsuited and his festival of security clearance removals since, first 51 spooks, then Joe Biden himself, and then Tish James and Alvin Bragg, among others. Pretty nutty that Bove says that Eric Adams can’t be prosecuted because it means he can’t see sensitive information when Trump has arbitrarily withheld that very same sensitive information from New York’s Attorney General and the District Attorney, huh?

It’s another pretext.

Ho can easily dismiss Bove’s first rationale — the appearance of impropriety — because (as Sassoon noted) he already did, in a ruling on one of Adams (and Elon Musk) attorney Alex Spiro’s serial claims that the government was leaking grand jury information.

One additional filing bears mention. On January 18, 2025, Mayor Adams submitted a letter accusing the former U.S. Attorney for the Southern District of New York of violating Local Criminal Rule 23.1 through statements made in an op-ed published on January 16 and on his “new website.” See Letter, Jan. 18, 2025, ECF No. 99 (“Jan. 18 Letter”). The Mayor states that this evidence “should be considered by the Court when ruling on Mayor Adams’s Renewed Motion for an Evidentiary Hearing and for Sanctions Including Dismissal.” Id. at 3. Having reviewed the submission and the evidence referenced within it, the Court concludes that it does not change the Court’s analysis. Neither Mr. Williams’s op-ed itself nor the media it incorporates by reference so much as allude to the grand jury proceedings that led to Mayor Adams’s indictment, let alone disclose protected information from those proceedings. Rule 6(e) is not implicated by the materials, and they do not substantiate Mayor Adams’s claim that the Government has disclosed grand jury information in violation of the Rule.5

5 Although Mayor Adams does not request relief under Local Rule 23.1, the Court notes that, after carefully reviewing Mr. Williams’s op-ed, the op-ed does not contain any statements that run afoul of the Rule’s prohibitions. In the op-ed, Mr. Williams provides hyperlinks to several prosecutions brought during his tenure as U.S. Attorney, including those of federal and state elected officials, but none concern Mayor Adams. In fact, the majority of the statements in the oped that Mayor Adams claims are problematic concern New York State rather than New York City politics. For example, Mayor Adams highlights Mr. Williams’s statements that “[t]he ability to raise obscene sums of money for a campaign is precisely the wrong bottleneck to elected office,” and that “[i]t reeks of pay-to-play corruption and is offensive to most New Yorkers . . . ” Jan. 18 Letter at 2 (quoting Williams’s op-ed). But those sentences are found in a paragraph lamenting the ability of candidates “to raise money from individuals or entities with business before the state,” opining that “[t]he state’s new matching funds program is woefully inadequate,” and arguing in favor of “a truly transformative public financing system for state elections. . . ” Id. (emphases added). They do not appear to be directed at New York City politics generally or at this case specifically.

There is one sentence in the op-ed stating that “[t]he public reporting alone paints a picture” that “America’s most vital city is being led with a broken ethical compass,” id. at 1, which could plausibly be read to be a reference to Mayor Adams (among others). This particular statement, however, “do[es] not cross the line drawn by [Local] Rule 23.1 in the sense that [it] do[es] not, by [itself], constitute opinions as to the Defendant[’s] guilt, and [is] not otherwise the type of statement[] proscribed by the rule.” United States v. Smith, 985 F. Supp. 2d 506, 539 (S.D.N.Y. 2013) (citing Local Rule 23.1(d)). Nor does the statement “go[] beyond the public record.” Local Rule 23.1(b). Of course, “[i]t is essential that prosecutors respect both the power of their words and their office, and ensure that their public comments are carefully tailored solely to further valid law enforcement interests and to steer far clear of violating a defendant’s fundamental right to a fair trial.” Id. at 541. Here, the Court finds that Mr. Williams has not violated those duties.

The arrogance! Bove is telling a judge he has to dismiss an indictment, in part, because Bove asserts as true something that Ho has already said is not true!

But Ho will have to, without more, treat Bove’s second excuse — Adams’ need to do his job to keep NYC safe from migrants — with a presumption of regularity.

Unless and until those other letters alleging this is a quid pro quo come before him.

Sassoon’s letter, which I assume Ho has read, did more than rebut Bove’s thin pretexts. It:

She also invoked Judge Ho, twice by function — citing Judge Ho’s treatment of Spiro’s serial claims of leaks and his specific focus on Williams’ actions (linked above) and reviewing how he had granted Adams’ own request with regards to trial timing. Then she invoked Judge Ho by name, predicting that he would do a “searching inquiry” on this case.

The assigned District Judge, the Honorable Dale E. Ho, appears likely to conduct a searching inquiry in this case. Notably, Judge Ho stressed transparency during this case, specifically explaining his strict requirements for non-public filings at the initial conference. (See Dkt. 31 at 48-49). And a rigorous inquiry here would be consistent with precedent and practice in this and other districts.

In support, she cited this admonition from Ho, in response to seeming attempts to communicate directly with chambers last fall and in the process hide public court hearings.

I want to be clear that in the future, if there are requests to change a certain date, or to have a certain date, I should say, you’ll stick to what you request. If you need a change, you’ll file it on ECF, not via email to chambers. I’ll only consider it if you explain why there’s good cause in a single submission for a change in the date. If you don’t, I’ll deny it on that basis alone. I just want to make sure that counsel understands that and see if there are any questions from counsel as to those instructions.

[snip]

THE COURT: One other guideline that I want to hit, which is with respect to the presumption of public access to documents. Now I understand there may be CIPA issues involved in this case and we’ll take those as they come, but I just want to remind counsel that there’s a presumption of public access to judicial documents, and this is obviously a case of significant public interest. Other than what you can, without court approval, file in redacted or sealed form under the local rules, things like personal identifying information, financial account numbers and the like, I expect requests for redaction of documents to be narrowly tapered.

And just to go over the rules here for the procedures, I should say, if it’s necessary to file a sealed or redacted document, you have to file a letter motion seeking to redact or seal that document specifying the reasons for such sealing or redaction and citing authority that those reasons can justify overcoming the presumption of public access and then file their own redacted documents under seal, which will remain temporarily sealed until the Court resolves the motion to redact or seal the documents, and if it’s appropriate, file a redacted version of those documents on the public docket.

So Sassoon cited “the Court” several times to lay out aspects of the record that Bove got wrong, and then she invoked Judge Ho by name, effectively saying, “Hey Judge Ho, remember that you have ordered both parties in this case to make all documents public? You might want to do that here.”

Now, there are obvious documents we’d all like to see that, if these other documents are formally aired in this case, I expect Judge Ho to request, starting with the notes someone from SDNY took at a January 31 hearing. Bove also described written submissions from prosecutors and Adams’ team in his response and a February 3 memo from SDNY that, he describes, denied a quid pro quo. He also claims Sassoon, “acknowledged previously in writing” that there was no quid pro quo, which may be that February 3 memo. And there are all the letters that are public but not formally before him.

Again, Judge Ho may demand all that if and when he begins to look closely.

But there’s another document that is missing, conspicuously so.

Bove’s Nolle Prossequi motion describes that Adams has consented to dismissal, but he does not include it.

Through counsel, Defendant Eric Adams has consented in writing to this motion and agreed that he is not a “prevailing party” for purposes of the Hyde Amendment. See P.L. 105- 119, § 617, 111 Stat. 2440, 2519; 18 U.S.C. § 3006A note.

This is, quite frankly, either insane or rank incompetence. There is no way any judge, former ACLU voting rights lead or not, would accept a dismissal without prejudice without seeing that documented. It may be that Adams will file notice of his consent on Monday (Mike Flynn filed his own notice of consent five days after Bill Barr filed to dismiss the indictment), but Bove had something in writing on Friday.

Mr. Bove specifies that Adams must consent in writing to dismissal without prejudice. To be sure, in the typical case, the defendant’s consent makes it significantly more likely for courts to grant motions to dismiss under Rule 48(a). See United States v. Welborn, 849 F.2d 980, 983 (5th Cir. 1988) (“If the motion is uncontested, the court should ordinarily presume that the prosecutor is acting in good faith and dismiss the indictment without prejudice.”). But Adams’s consent— which was negotiated without my office’s awareness or participation—would not guarantee a successful motion, given the basic flaws in the stated rationales for dismissal. See Nederlandsche Combinatie, 428 F. Supp. at 116-17 (declining to “rubber stamp” dismissal because although defendant did not appear to object, “the court is vested with the responsibility of protecting the interests of the public on whose behalf the criminal action is brought”). Seeking leave of court to dismiss a properly returned indictment based on Mr. Bove’s stated rationales is also likely to backfire by inviting skepticism and scrutiny from the court that will ultimately hinder the Department of Justice’s interests. In particular, the court is unlikely to acquiesce in using the criminal process to control the behavior of a political figure. [my emphasis]

And that may be one of the most important details in Sassoon’s letter to Bondi: Bove negotiated the key point of leverage, dismissal without prejudice with the stated expectation that DOJ will revisit things if and when Adams is reelected in November, without the involvement of SDNY.

When Sassoon invited Judge Ho, by name, to use his early admonition about public filings “to conduct a searching inquiry in this case,” she suggested that Bove was skirting that earlier admonition. Dale Ho likely didn’t need Sassoon’s invitation, and doesn’t need to first find a way to adopt this correspondence to the public docket.

Because Bove insanely submitted a request to dismiss the indictment without the most important piece of the paperwork.

Timeline and documents

January 31: Meeting at which someone from SDNY took notes, which were confiscated.

February 3: Date of SDNY memo that, per Bove, denies a quid pro quo.

Monday, February 10: Bove letter to Sassoon (addressed as Acting US Attorney), ordering her to dismiss the case.

Wednesday, February 12: Sassoon letter to Pam Bondi, asking to meet.

Thursday, February 13: Bove letter to Sassoon, firing her.

February 13 or 14: Hagan Scotten resignation letter.

Friday, February 14: Nolle Prosequi letter submitted by Acting Criminal Division Chief Antoinette Bacon and AUSA Edward Sullivan, signed by Bove.

Update: Added the February 3 memo.

As the Thursday Night Massacre Turns into Friday Morning

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Hagen Scotten, the lead prosecutor on the Eric Adams case, has joined at least six other attorneys in leaving DOJ rather than carry out Trump’s alleged quid pro quo with Eric Adams.

His letter (posted by NYT) is one for the ages:

I have received correspondence indicating that I refused your order to move to dismiss the indictment against Eric Adams without prejudice, subject to certain conditions, including the express possibility of reinstatement of the indictment. That is not exactly correct. The U.S. Attorney, Danielle R. Sassoon, never asked me to file such a motion, and I therefore never had an opportunity to refuse.

But I am entirely in agreement with her decision not to do so, for the reasons stated in her February 12, 2025 letter to the Attorney General. In short, the first justification for the motion—that Damian Williams’s role in the case somehow tainted a valid indictment supported by ample evidence, and pursued under four different U.S. attorneys—is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake . Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.

Please consider this my resignation. It has been an honor to serve as a prosecutor in the Southern District of New York

As NYT described, Scotten is a former Special Forces Officer and clerked for both Bret Kavanaugh and John Roberts.

Mr. Scotten served three combat tours in Iraq as a U.S. Army Special Forces Officer and earned two Bronze Stars. He graduated from Harvard Law School and clerked for Chief Justice John G. Roberts Jr. of the U.S. Supreme Court, and for Brett M. Kavanaugh before he, too, became an Supreme Court justice.

Earlier today, I perused the Murdoch press and there is nothing so far about this burgeoning scandal. I’ve seen no comment from Republican members of Congress, and frankly far too little from Democrats.

But this may already be teed up to go to SCOTUS. And when it does, some of the loudest voices will be those of conservative lawyers who refused to be party to an alleged quid pro quo.

Update: Brad Heath reports that DOJ finally found someone to sign the motion to dismiss.

Emil Bove’s Prisoner Exchange

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

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

But he may lose DOJ as a result.

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

Those likely are not unrelated.

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

 

Trump Preparing to Fire FBI Agents Who Treated a Violent Attack on Congress as a Crime

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Emil Bove, the Trump defense attorney who is serving as the Acting Deputy Attorney General until Trump installs another of his defense attorneys in the post, is preparing to purge up to 6,000 FBI Agents who participated in the investigation into the crime scene on January 6.

Bulwark has a good summary and links to other coverage.

Emil Bove, Trump’s former defense lawyer, who is now acting deputy attorney general and in charge of the Justice Department, ordered the removal of at least six top FBI career executives. Bove also requested the names of all FBI agents who worked on January 6th cases.

[snip]

Over the weekend, in a blizzard of activity (helpful reporting can be found here, and here, and here), FBI officials moved to resist the attempted coup.

Though he had carried out the order to decapitate the bureau’s top executives the day before, on Friday acting FBI Director Brian Driscoll reportedly refused to agree to fire certain agents involved with January 6th cases, and was trying to block a mass purge of such agents. In a message to staff Saturday, Driscoll reminded FBI agents of their rights to “due process and review in accordance with existing policy and law,” and emphasized “That process and our intent to follow it have not changed.”

The FBI Agents Association sent a memo to employees over the weekend to remind them of their civil service protections. The memo urged them not to resign or to offer to resign, and recommended that agents respond to one question in the survey they’ve been instructed to answer: “I have been told I am ‘required to respond’ to this survey, without being afforded appropriate time to research my answers, speak with others, speak with counsel or other representation.”

And in a remarkable letter, obtained by The Bulwark, the president of the Society of Former FBI Agents—a group that seeks to stay out of politics—said the following:

The obvious disruption to FBI operations cannot be overstated with the forced retirement of the Director, Deputy Director, and now all five Executive Assistant Directors. Add in the immediate removal of a number of SACs [Special Agents in Charge] and the requests for lists of investigative personnel assigned to specific investigations and you know from your experience that extreme disruption is occurring to the FBI—at a time when the terrorist threat around the world has never been greater.

Then on Sunday the top agent at the FBI’s New York field office, James Dennehy, wrote in an email to his staff: “Today, we find ourselves in the middle of a battle of our own, as good people are being walked out of the F.B.I. and others are being targeted because they did their jobs in accordance with the law and F.B.I. policy. . . . Time for me to dig in.”

What no one is saying in their coverage, however, is that Trump — through Bove — is effectively trying to remove thousands of FBI Agents because they treated a violent attack on the Capitol, one that put Members of Congress at real risk (as the video of Chuck Grassley fleeing, which Kyle Cheney first discovered, shows).

This mob wasn’t just coming after Mike Pence and Nancy Pelosi (and AOC) by name. They were also coming after Mitch McConnell by name. As I’ve shown, Ryan Nichols was calling to drag every member of Congress who certified Joe Biden’s win, which includes Grassley, Lindsey Graham, and John Cornyn.

Trump is trying to make it a firing offense for the FBI to investigate people — including some adjudged terrorists — who attacked a co-equal branch of government.

And thus far, Senators who could stop it have done nothing.

Purging these agents will not just devastate the FBI workforce, throwing away decades of expertise. But it will also send a message that Trump can sic a mob on Congress with no response from law enforcement.

Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022

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Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.

He also presided over the Oath Keeper cases.

That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.

As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.

Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.

That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.

But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]

Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.

As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]

Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.

But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.

Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.

For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.

The Trained [Un]Seal that Performed for Trump’s Lawyers

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At least thus far, I am wrong. Trump’s response to Jack Smith’s request for an oversized opening brief did not stage an emergency his lawyers can use to ask John Roberts for immediate help.

Oh sure. They wailed about fairness.

The proposed approach is fundamentally unfair, as the Office would attempt to set a closed record for addressing unfiled defense motions by crediting their own untested assessments of purported evidence, denying President Trump an opportunity to confront their witnesses, and preventing the defense from obtaining discovery.

They complained about the election — one thing that Judge Chutkan has made clear she doesn’t want to hear. They complained about the election over and over and over.

In doing so, though, they falsely claimed that Jack Smith was trying to release all this publicly.

[T]he Office is violating these protections and has instead articulated an unacceptable, extralegal “guiding principle” of “structur[ing] a schedule that leads to only one additional interlocutory appeal.” 9/5/24 Tr. 12-13. That is simply code for the Office’s continued preference for the type of “highly expedited” proceedings prior to the 2024 Presidential election that the Supreme Court has already criticized.

[snip]

[T]he Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election.

The strategy reflected by the Motion would increase the irreparable harm caused by the Gag Order in this case. False, public allegations by the Special Counsel’s Office, presented through a document that has no basis in the traditional criminal justice process, will undoubtedly enter the dialogue around the election. The Gag Order prevents President Trump from explaining in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties. While the D.C. Circuit modified and addressed the Gag Order previously, the court was careful to note that “the general election is almost a year away, and will long postdate the trial in this case.” United States v. Trump, 88 F.4th 990, 1018 (D.C. Cir. 2023). Circumstances have changed drastically: President Trump is the leading candidate in the Presidential election, which is just weeks away. The Office cannot be permitted to issue a massive and misleading public statement that is not responsive to a defense motion, and risks adverse impacts to the integrity of these proceedings, while simultaneously insisting on an unconstitutional prior restraint on President Trump’s ability to respond to their inaccurate assertions while he is campaigning.

The huge public filing that the Motion portends would also violate the Justice Manual, which prohibits “Actions that May Have an Impact on an Election.” Justice Manual § 9-85.500 (emphasis added). “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Id. Separately, prior to this case, DOJ followed an “Unwritten 60-Day Rule” summarized as follows6:

  • Former FBI Director Jim Comey: “[W]e avoid taking any action in the run up to an election, if we can avoid it.” DOJ-OIG Report at 17.
  • Former Attorney General Loretta Lynch: “[I]n general, the practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Id. at 18.
  • Former Deputy Attorney General Sally Yates: “To me if it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” Id. at 18.

Departures from these practices should never be countenanced because they risk allowing prosecutors to impact national elections, but the situation is even worse here where the Special Counsel’s Office is seeking to do so by turning criminal procedure on its head in order to file a 180-page false hit piece. See Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (“The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.”). “[O]nce the election occurs, there can be no do-over and no redress” for the voters or President Trump. League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014).

6 A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, U.S. Dep’t of Justice Office of Inspector General (June 2018) (the “DOJ-OIG Report”) at 17-18, available at https://s3.documentcloud.org/documents/4515884/DOJ-OIG-2016-Election-Final-Report.pdf. [emphasis mine]

But the most curious complaint is that Trump’s team says he’ll be harmed even with these filings submitted under seal.

For example, in support of the Office’s motion for a protective order, they argued that President Trump has “no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.” ECF No. 15 at 4. Now it is the Office that wishes to press their case to drive public opinion rather than justice.

None of this will impress Judge Chutkan. She has repeatedly told them she doesn’t want to hear about the election.

But they have previewed the argument they make when Jack Smith — or the press consortium — asks to unseal this.

Update: Judge Chutkan has ruled to permit Jack Smith his 180 pages. She addresses Trump’s concerns regarding publicity by pointing to the protective order.

Fourth, Defendant contends that the briefing schedule would be unfair given the court’s order restricting certain extrajudicial statements, ECF No. 105, and the Government’s position with respect to the protective order in this case, see Reply in Supp. of Mot. for Protective Order, ECF No. 15. But the former contention mischaracterizes the court’s order, and even so identifies potential political consequences rather than legal prejudice. Def.’s Opp’n at 7.1 And the court did not accept the Government position that Defendant decries—“that even materials marked ‘nonsensitive’ under the Protective Order” should be kept under seal, id. at 5—instead extending that protection only to sensitive materials, see Protective Order ¶¶ 2–12, ECF No. 28. The court likewise rejects Defendant’s unsupported assertion that publicly docketing nonsensitive materials during the immunity briefing would impermissibly “impact potential witnesses and taint the jury pool.” Def.’s Opp’n at 5. Moreover, and once again, Defendant offers no reason why the same predicted harms would not result from his own proposal, which would include immunity briefing with presumably the same materials. See Joint Status Report at 4.

1 Defendant claims that he cannot “explain[] in detail why the Office’s selective and biased account is inaccurate without risking contempt penalties,” which could affect his political candidacy. Def.’s Opp’n at 7. As relevant here, the order only prohibits Defendant from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” United States v. Trump, 88 F.4th 990, 996 (D.C. Cir. 2023).

That language will lead to the nonsensitive material being unsealed sooner rather than later.

She mentions Trump’s wails about the election just once, noting that none of this causes him legal prejudice.

Fifth and finally, Defendant claims that the Government’s forthcoming brief violates Department of Justice policy. He asserts that the brief “would be tantamount to a premature and improper Special Counsel report,” Def.’s Opp’n at 6, which is provided at “the conclusion of the Special Counsel’s work,” id. (quoting 28 C.F.R. § 600.8(c)). And he argues that the brief would run afoul of the Justice Manual, which prohibits federal prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” Id. at 7 (quotation omitted). The court need not address the substance of those claims. Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy.

 

Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

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Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/HSGAC_Finance_Report_FINAL.pdf, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023), https://oversight.house.gov/wpcontent/uploads/2023/05/Bank-Memorandum-5.10.23.pdf, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023), https://oversight.house.gov/wpcontent/uploads/2023/08/Third-Bank-Records-Memorandum_Redacted.pdf, at 2. [my emphasis]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.