A Major New Constitutional Clash Erupts in Oregon

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Administration Brazenly Defies Court Order

I went into the weekend anticipating that today’s Morning Memo would be focused on the Friday ruling by a federal judge in Tennessee that there is a “realistic likelihood” that the Trump Justice Department’s criminal prosecution of Kilmar Abrego Garcia is vindictive.

But over the weekend, the Trump administration’s attempt to deploy the National Guard in Oregon blew up into a constitutional clash as serious as any we’ve seen so far this year (including, ironically, the clash over Abrego Garcia’s wrongful deportation).

TPM’s Kate Riga was all over the details of the legal battle that played out over the weekend:

• Friday afternoon: U.S. District Judge Karin Immergut, a Trump appointee, voices extreme skepticism about whether the facts on the ground in peaceful Portland provide any reasonable basis for President Trump to deploy the Oregon National Guard.
• Saturday afternoon: Judge Immergut issues a temporary restraining order blocking President Trump from deploying the Oregon National Guard. Over the next 24 hours, President Trump makes moves to deploy the California and Texas national guards to Oregon.
• Sunday evening: Judge Immergut holds an emergency hearing in which she rakes the DOJ attorney over the coals and issues a second temporary restraining order blocking the deployment of any federalized national guard troops to Oregon.

For readers who were out of touch over the weekend, it’s a lot to catch up on. But I want to emphasize the significance of the administration’s brazen end-run around a Trump-appointed federal judge. As an irate Judge Immergut noted in Sunday’s hearing, the administration acted in “direct contravention” of her order. Given that nothing had changed on the ground, the legal reasoning for her initial order still applied, she said, and the administration was “simply circumventing” it.

Between Immergut issuing her two TROs, the administration filed an emergency appeal with the 9th Circuit, so this may play out pretty quickly this week, with the Supreme Court possibly getting a chance to weigh in.

Now on to the rest of the weekend news. There was a lot …

Abrego Garcia Wins Step 1 of Vindictive Prosecution Claim

In a remarkable ruling, U.S. District Judge Waverly D. Crenshaw Jr. of Nashville has found a “realistic likelihood” that Kilmar Abego Garcia is the victim of vindictive prosecution by the Trump Justice Department. The ruling opens the door for Abrego Garcia to conduct discovery into the administration’s motives for prosecuting him on charges of human smuggling in a case that had been dormant since a 2022 traffic stop in Tennessee. The closed investigation was reopened after Abrego Garcia successfully challenged his wrongful deportation to El Salvador despite a immigration judge order that blocked his removal to his native country.

What’s especially striking about Judge Crenshaw’s ruling is that he is mostly willing to accept that the local U.S. Attorney’s Office itself did not act with malice or bad faith in bringing the case against Abrego Garcia, but he is unconvinced that higher-ups in the administration, most particularly Deputy Attorney General Todd Blanche, were acting in good faith.

Pointing to public statements Blanche has made about the case, Crenshaw wrote: “Deputy Attorney General Blanche’s remarkable statements could directly establish that the
motivations for Abrego’s criminal charges stem from his exercise of his constitutional and statutory rights to bring suit against the Executive Official Defendants, rather than a genuine desire to prosecute him for alleged criminal misconduct.”

Barring appeals court intervention, the next step is for Abrego Garcia to conduct additional discovery into the DOJ’s motives and actions, setting up the potential for unusually revealing insights into how the White House and Main Justice under Trump are using DOJ as a political weapon.

Judge Crenshaw indicated he is going to keep the discovery inquires narrow, so this isn’t going to be a wide-ranging fishing expedition, but it’s nonetheless a remarkable turn of events. Still, I would caution that finding solid evidence of vindictive prosecution is difficult, and the legal standard that Abrego Garcia must meet remains very high. This is just a first step, but a federal judge accepting the premise that there’s plausible evidence of a vindictive prosecution in this case is a major development.

FBI Agent Suspended for Refusing to Perp Walk Comey

A FBI agent has been suspended (some reports say fired) for refusing to subject former FBI Director Jim Comey to the public spectacle of a perp walk. Comey, who was indicted on President Trump’s order, was issued a summons to appear in court, not an arrest warrant, so it wasn’t immediately clear how the FBI would expose Comey to public ridicule. But CBS News reported that an effort was still underway to do so:

The source told CBS News that leadership asked for “large, beefy” agents to conduct an arrest of Comey “in full kit,” including Kevlar vests and exterior wear emblazoned with the FBI logo. It was suggested that a supervisory special agent in the violent crimes division of the FBI’s Washington Field Office would be able to put together the kinds of agents who fit the bill, the source said.

The agent, however, refused to participate in this plan, believing it would be inappropriate and highly unusual for a white-collar defendant like Comey, according to the source. He was then suspended for insubordination.

Reacting to the news on X, FBI Director Kash Patel dismissed MSNBC as an “ass clown factory” but also seemed to confirm at least the suspension of an agent: “In this @fbi, follow the chain of command or get relieved.”

Fired DOJ Prosecutor Rallies Former Colleagues

In a farewell letter to colleagues that was taped to his office door, fired federal prosecutor Michael Ben’Ary warned that “the leadership is more concerned with punishing the President’s perceived enemies than they are with protecting our national security.”  

Ben’Ary, a top national security prosecutor in the Eastern District of Virginia, was abruptly fired last week without cause for reasons that remain unknown.

While urging his colleagues “to do the right thing, in the right way, for the right reasons,” Ben’Ary wrote:

I took an oath to our Constitution, as did each of you, and it remains your responsibility to uphold that oath in the work that you do. It is this oath that requires you to follow the facts and the law wherever they lead, free from fear or favor, and unhindered by political interference. In recent months, the political leadership of the Department have violated these principles, jeopardizing our national security and making American citizens less safe.

Boasberg Admonishes Prosecutors for Attacking Magistrate

In another of a string of remarkable court setbacks for the Trump administration, U.S. District Judge James Boasberg admonished hot-headed federal prosecutors for their intemperate language in challenging a decision by a magistrate judge Zia M. Faruqui in D.C. not to accept an indictment from a D.C. Superior Court grand jury.

Federal prosecutors used the unusual end-run after a district court grand jury declined to indict in an assault and weapons case. Faruqui was blunt last week about how appalled he was by the Trump DOJ maneuver and has asked for additional briefing from both sides about whether it was lawful to bring an indictment in Superior Court into federal district court.

Prosecutors filed an emergency request with Boasberg asking him to slap down Faruqui for his “inflammatory misstatements of law and improper conduct” remarks and issue a corrective to the foreman of the Superior Court grand jury who heard the magistrate’s remarks in court. “Judge Faruqui’s bloviate first and consider the law later approach is just the latest example of his demonstrated prejudice against the U.S. Attorney and the Trump administration,” the prosecutors said in unusually pointed language.

For his part, Boasberg immediately convened the hearing Friday afternoon on prosecutors’ motion and declined to rule on it until the briefing the magistrate had ordered was complete. But in doing so, Boasberg was stern with Assistant U.S. Attorney Jonathan R. Hornok, the relatively new chief of the criminal division in the D.C. U.S. Attorney’s Office (the former criminal division chief was forced out by then-acting U.S. Attorney Ed Martin for refusing to turn a MAGA political attack on EPA funding into a criminal case):

“It would be in everyone’s interest to turn the temperature down,” Boasberg said in court, with U.S. Attorney Jeanine Pirro looking on from the front row of the courtroom gallery, the WaPo reported. Boasberg went on to say: “There were plenty of cases where judges ruled against me. … But I never would have filed a pleading accusing a judge of bloviating, as you have done in yours.”

Craziest Story of the Weekend

As much as there was going on from Friday through Sunday, the pièce de résistance of Trump era absurdity was a Star-Tribune story about a White House aide who was in Minnesota last week for his uncle’s funeral cavalierly using Signal to talk with other administration officials about deploying active duty military (including the 82nd Airborne!) to Portland to put down the wildly overblown threat of protestors.

Stephen Miller deputy Anthony Salisbury’s Signal use was so careless that an unidentified bystander was able to photograph his phone and passed on images of the active chat to the Star-Tribune: “Over the course of several conversations, totaling dozens of messages, Salisbury chatted candidly, and at times profanely, about a wide range of matters with [Defense Secretary Pete] Hegseth’s adviser Patrick Weaver and other high-ranking federal officials.”

Great Question

Techdirt: DOJ Demands Removal Of ICEBlock App; Why Are The ‘Free Speech Warriors’ Suddenly So Quiet?

On Orders From Trump, U.S. Attacks 4th Alleged Drug Boat

A fourth lawless U.S. military strike on alleged drug-trafficking boats in the Caribbean on Friday killed four people.

In Trump We Trust

U.S. Treasurer Brandon Beach is trumpeting the possibility of a new commemorative coin with President Trump’s image on both sides, even though U.S. law prohibits living people from appearing on currency:

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