An Attack on the Constitutional Order

Over the course yesterday afternoon and into the evening, the full extent of the Trump Justice Department’s deterioration into thuggery came into clearer view.

First came the release of the preposterous affidavit in support of the search warrant for 2020 election ballots and records in Fulton County, Georgia, which revealed that the FBI became involved after a “referral” from Kurt Olsen, a Stop the Steal lawyer who was hired last year by the administration to investigate the 2020 election. Olsen works in the Trump White as a “Presidentially appointed Director of Election Security and Integrity,” according to the affidavit.

Then came the news the the Trump DOJ had unbelievably sought indictments of six sitting Democratic members of Congress for participating in a video that reminded service members of their duty not to follow unlawful orders. A D.C. grand jury mercifully declined to indict Sens. Mark Kelly (AZ) and Elissa Slotkin (MI) and Reps. Jason Crow (CO), Maggie Goodlander (NH), Chrissy Houlahan (PA), and Chris Deluzio (PA).

The NYT put it succinctly: “The president, emboldened by his success in bending the Justice Department and F.B.I. to his will, has intensified his effort to deploy the vast arsenal of federal law enforcement to pursue his political agenda and personal grievances.”

This is what a fully politicized and weaponized Justice Department looks like. It is not a pretty thing. I am not by nature an alarmist, but caution is a luxury right now. This is a five-alarm fire. Every single American is in jeopardy when federal law enforcement operates outside the rule of law at the beck and call of any president, let alone a deranged mad king like Donald Trump.

A few thoughts on the latest developments:

• I am baffled how the flimsy and obviously politicized search warrant application made it past federal magistrate Judge Catherine Salinas. One way of looking at the affidavit by FBI special agent Hugh Raymond Evans is that it conspicuously included everything a judge needed NOT to sign off on the search warrant.
• This is probably the former lawyer in me speaking, but one of the most striking things about the worst of the Trump DOJ’s cases is how quickly they bring them. Clearly DOJ is under orders from the White House to act and act now. Careful investigation, extensive legal research, strategic decision-making about the long-term institutional impacts of bringing certain cases or taking particular positions in court — things DOJ would normally do, often at a pace that to outsiders looked ridiculously slow — are all out the window.
• Grand juries are the surprise bulwark against fascism, but I’d hesitate before taking much solace from it or placing much reliance on it. First, targets of bogus investigations are still subject to harassment, threat, expense, and emotional distress during the investigation phase even if it doesn’t lead to an indictment. Second, grand juries remain easily manipulated and in a bad position to reject bogus prosecutions when prosecutors and investigators are not acting in good faith. The no-true bills returned of late remain the exception and not the rule.
• It is hard to convey the extent to which both of yesterday’s cases defy the ethical obligations prosecutors have to do justice and to only bring cases they think they can prove beyond a reasonable doubt and win conviction. A grand jury rejection of an indictment isn’t no harm/no foul. D.C. U.S. Attorney Jeanine Pirro’s decision to bring that particular case is a travesty, especially given the First Amendment and Speech or Debate Clause protections for members of Congress.

A final overarching point: Both of these cases are attacks on the constitutional framework. The Georgia case is a threat to states’ power to conduct federal elections, and targeting members of Congress with politicized prosecutions is direct attack on the separation of powers. So when I say that every American is in jeopardy from a lawless DOJ, that’s true both in sense of you could be next and in the peril it poses to the constitutional order.

Quote of the Day

“If these fuckers think that they’re going to intimidate us and threaten and bully me into silence, and they’re going to go after political opponents and get us to back down, they have another thing coming.”—Rep. Jason Crow (D-CO), a former Army Ranger, reacting to the Trump DOJ’s attempted prosecution of him and five other Democratic members of Congress

A Pattern Is Emerging …

In the third such case recently, U.S. District Judge Hala Y. Jarbou of Lansing rebuffed the Trump DOJ’s request for Michigan’s voter data.

Mass Deportation Watch

• Chicago: In an email, CBP commander Gregory Bovino praised the agent who shot a Chicago woman five times: “In light of your excellent service in Chicago, you have much yet left to do!!”
• Nationwide: The Trump administration’s initial bold claims about shootings by federal agents are repeatedly falling apart in court.
• Minnesota: Despite all the administration’s big talk, the Trump DOJ is charging many of the alleged assaults on federal agents in Minnesota as misdemeanors.

Faces of the Resistance

• Joseph H. Thompson, a former senior federal prosecutor who resigned from the U.S. attorney’s office in Minnesota in January over Operation Metro Surge, has joined the legal defense team of former CNN anchor Don Lemon, who faces charges arising from his coverage of an anti-ICE protest at a St. Paul church.
• J.P. Cooney, a former top deputy to the special counsel Jack Smith, plans to run for Congress as a Democrat in a newly drawn district in Virginia.

DHS Withdraws Bogus Subpoena

The Trump administration has withdrawn a retaliatory administrative subpoena targeting a WaPo reader who emailed a DHS lawyer after seeing him quoted in a newspaper article.

FAA Madness

Without any advance notice, the FAA overnight closed the airspace around El Paso’s airport through Feb. 20, citing nonspecific “national security reasons.” Then this morning, it just as abruptly, reopened it.

The airport is adjacent to the Army’s Ft. Bliss, which includes Biggs Army Airfield and Camp East Montana, the newly constructed ICE tent detention facility.

“The brief shutdown was related to a test of new military technology at nearby Fort Bliss Army base,” the NYT reports, thought that hardly begins to explain the mishandling of the closing of a major metro area’s airport.

The Destruction: Vaccine Edition

The FDA under Robert F. Kennedy, Jr., refused to even accept Moderna’s application for a new mRNA flu vaccine, baffling the company, which had spent years and millions of dollars on the vaccine, including conducting a clinical trial with 41,000 participants.

The Corruption: Bridge to Nowhere Edition

President Trump’s extortionist threat to shut down the U.S. end of the soon-to-be-opened Canadian bridge to Michigan came after a phone call Monday from Commerce Secretary Howard Lutnick, who had just met with Matthew Moroun, the billionaire Detroit trucking magnate whose family — which operates an existing bridge between Michigan and Canada — has fought the new bridge for years, the NYT reports.

Taking the Gay Out of Stonewall

In what appears to be part of the Trump administration’s anti-DEI historical revisionism, the Interior Department removed a Pride flag from NYC’s Stonewall Inn National Monument, which commemorates the cradle of the gay rights movement.

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What Price for Due Process?

On Monday, toward the end of another court hearing in the interminable Alien Enemies Act case, Trump DOJ lawyer Tiberius Davis haltingly issued a new threat to the Venezuelan nationals who were originally deported to El Salvador’s brutal CECOT prison: If you try to vindicate your due process rights, we might send you back to CECOT again or to another third country.

The warning came as U.S. District Judge James Boasberg considers what remedies are available to give the Venezuelans the due process they were denied when they were labeled Tren de Aragua gang members and rushed out of the country without notice or hearing in March 2025.

Among the remedies Boasberg is considering to allow the men a chance to remove the stain of being labeled alien enemies are (i) remote hearings from Venezuela or from third countries; or (ii) ordering the Trump administration to facilitate the former detainees’ return to the United States.

The ACLU’s Lee Gelernt, who represents the former detainees as a class, conceded that if any of the men do return they would probably be detained and put into immigration proceedings, but they could then pursue asylum claims while also vindicating their due process rights in the AEA case. The worst case scenario, Gelernt surmised, was they would be deported back to Venezuela but probably not to the most extreme of the far-flung third countries to which the administration has sent immigrants.

In response, Davis at first seemed to almost be quibbling with Gelernt, saying it’s not a “major point,” but then warning that even if the men are in asylum proceedings they can still be sent to third countries and that a return to CECOT was not out of the question. Davis then seemed to try to soften the threat by noting that the one-year agreement the United States struck with El Salvador last March soon lapses and that no one has been sent to CECOT from the U.S. since then.

Still, the Trump administration’s position is that, of the range of possible remedies, facilitating the men’s return is the “least problematic,” Davis said, especially compared to remote hearings from third countries. But that is only if the administration is forced to provide any remedies at all, which it continues to insist is beyond Boasberg’s power to order.

Boasberg, who said he expects to rule on remedies by next week, was sardonic about whatever he does being immediately appealed by DOJ, which came into the hearing threatening exactly that. “I’m not going to rule today,” Boasberg said. “They may appeal anyway today because that seems to be the MO in this case.”

Must Read

Politico’s Kyle Cheney documents the Trump administration’s pattern of defying court orders, spiriting immigrants out of jurisdictions, and giving bad or incomplete information to judges in hundreds of newly filed habeas cases.

Mass Deportation Watch

• An immigration court blocked the deportation of Tufts student Rumeysa Öztürk, the Turkish national who was swiped off a city street by masked federal agents in a operation caught on video, after finding last month that DHS had not proved she should be removed.
• The Trump administration’s immigration courts suddenly began fast-tracking dozens of cases by Somalis seeking asylum in what their lawyers fear is a coordinated effort to deny them asylum and deport them without due process, NPR reports.
• The 9th Circuit Court of Appeals allowed President Trump to proceed with ending deportation protections for more than 60,000 migrants from Nepal, Honduras and Nicaragua, when it stayed a lower court ruling that had blocked the deportations.

So Effing Gross

It’s tougher for Republicans to rile their base about the southern border when they control the White House, so Texas Republicans have reverted to Islamophobia as their xenophobia of choice for the midterm elections, the NYT reports in a story headlined with exceptional clarity: Without a Border ‘Invasion,’ Texas G.O.P. Turns to an Old Enemy, Islam

Jan. 6 Lives On, Part 1

In a series of moves, the Trump DOJ began abandoning the prosecution of Steve Bannon, who was convicted of contempt of Congress for refusing to testify to the House Jan. 6 committee.

• Deputy Attorney General Todd Blanche called the House’s subpoena of Bannon “improper.”
• U.S. Solicitor General D. John Sauer told the Supreme Court, where Bannon’s appeal of his conviction was pending, that the Trump administration had determined “in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice.”
• D.C. U.S. Attorney Jeanine Pirro moved to dismiss the case in federal district court.

All of these moves are, as NBC News notes, “largely symbolic” since Bannon already served four months in prison for his conviction.

Jan. 6 Lives On, Part II

President Donald Trump has directed U.S. spy agencies to share sensitive intelligence about the 2020 election with his former campaign lawyer, Kurt Olsen, who is known for pushing debunked theories of electoral fraud and is now a temporary government employee in the White House, Politico reports.

Jan. 6 Lives On, Part III

A state judge in Georgia made clear his frustrations with the FBI’s seizure last week of Fulton County’s 2020 voting records, the NYT reports. Fulton County Superior Court Judge Robert C.I. McBurney, who has been presiding for years over litigation brought by Trump allies pushing the Big Lie, expressed his frustration with asides in rulings Monday:

• “We are left to hope that the bureau and the Department of Justice handle the ballots and related records with the care required to preserve and protect their integrity.”
• The ballots “were, until recently, here in Fulton County. Now, however, they are somewhere else. Where exactly the court cannot say.” 

Great Point

Adam Klasfeld turns an arched eyebrow to the coverage of the Big Lie video that President Trump shared last week which ended with a depiction of the Obamas as apes:

Coverage of the video focused on the overt racism of the video’s final moments, either ignoring the election lies that preceded the ending or treating it as an unrelated detail.

That ignores crucial context: Racism was always the lifeblood of Trump’s Big Lie.

Trump to DOJ: More Politicization NOW!

With President Trump complaining about a lack of vindictive prosecutions, DOJ leaders are pressuring the Weaponization Working Group “to deliver results in the coming weeks,” including producing its first report, NBC News reports.

38th Lawless Boat Strike

Two people were killed and a lone survivor left to flounder in the 38th unlawful U.S. attack on an alleged drug-smuggling boat. After the latest attack, in the eastern Pacific, the U.S. military said it summoned the Coast Guard to begin search-and-rescue operations for the survivor. It’s unclear whether post-strike search-and-rescue operations are viable at the distances and in the time frames involved in that expanse of ocean.

The Retribution: Blue States Edition

In another lawless swipe at blue states, the Trump HHS is planning to withhold from four blue states — California, Colorado, Illinois and Minnesota — some $600 million in federal grants already approved by Congress for public health programs, including HIV and STI prevention.

RIP Endangerment Finding

In the culmination of a years-long climate deregulation campaign, the Trump administration is poised this week to reverse the EPA’s 2009 endangerment finding that is the foundation for the federal regulation of greenhouse gases.

What New Madness Is This?

In another bullying move against Canada, President Trump made wild threats on social media to bar the opening of the soon-to-be-completed Gordie Howe International Bridge connecting Detroit and Windsor, Canada.

In a mad king diatribe, Trump said: “I will not allow this bridge to open until the United States is fully compensated for everything we have given them, and also, importantly, Canada treats the United States with the Fairness and Respect that we deserve.”

The NYT story on the threats contains this choice aside:

The nearby Ambassador Bridge, one of the busiest border crossings on the continent, has been privately owned for decades by a Detroit trucking industry billionaire and his family, the Morouns. The family had previously called on Mr. Trump to halt the construction of the Gordie Howe bridge — which would, once opened, compete for the more than $300 million in daily cross-border trade over the Ambassador Bridge.

On social media, Trump took things a step further, with an extortion threat. Trump’s price for opening the Canadian-built-and-paid-for bridge: The U.S. “should own, perhaps, at least one half of this asset.”

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