Worst-Case Scenario Avoided

Maybe my standards are slipping and I’m resigning myself to levels of corruption that I heretofore would not have tolerated, but I was actually relieved by U.S. District Judge Aileen Cannon’s ruling yesterday barring the public release of Special Counsel Jack Smith’s report on the Mar-a-Lago documents case.

To my mind, the most important thing Cannon did was to deny the former Trump co-defendants’ request to destroy Volume II of the Smith report entirely (my emphasis): “Any additional relief requested in either Motion, including an order of destruction of Volume II, is denied.”

If she had gone as far as the co-defendants wanted, it would have set off a race to the 11th Circuit Court of Appeals, with outside groups trying to beat the Trump DOJ to the punch before it promptly destroyed the report so damaging to Trump. It may feel like small solace that we avoided that outcome, but it does take the worst case scenario off the table and leave space for the 11th Circuit to consider the entire case at a more sober pace.

I’ve been following developments in the case closely over the last few weeks, but I’ve largely spared you the details because at this stage of things the real ballgame is at the 11th Circuit. You have only so much attention to spare, and other things were more pressing. But that doesn’t mean Cannon hasn’t continued to conduct herself in atrocious ways that look like an ostentatious audition for an appeals court or Supreme Court seat:

• Cannon’s rulings prohibiting the public release of Volume II of the Smith report are ungrounded in the law or history, overtly political, and designed to foil challenges to her rulings.
• Cannon has failed to account for the fact that Trump, his former co-defendants, and the Trump DOJ are now all on the same side, making it no longer an adversarial proceeding. Despite that, she repeatedly cited in yesterday’s ruling the “unopposed” nature of the motions before her, which is a bug not a feature. Cannon has repeatedly refused to let outside advocacy groups intervene in the case to preserve some semblance of adversarial proceedings.
• Cannon continues to drag Jack Smith, the pre-Trump DOJ, and implicitly every other judge who has ever upheld the special counsel regulations, which is to say every other judge but her.

Even before yesterday’s ruling, which made her earlier preliminary ruling permanent, it’s been up to the 11th Circuit to set things right (I’m not convinced the Supreme Court will feel the need to weigh in if the 11th Circuit does the right thing here, but obviously that’s still TBD). The next thing to watch for is whether the 11th Circuit sweeps up all the pending challenges, including the outside groups trying to intervene, into a single appeal that it can consider all at once.

Mass Deportation Watch

• Star Tribune: U.S. District Judge Eric Tostrud of Minnesota found the Trump administration in civil contempt for transferring an immigrant to Texas and releasing him there last month without his belongings in violation of a court order. As sanction, the judge ordered the government to cover the $568.29 cost of the immigrant’s return flight to Minnesota, which his lawyer had paid.
• Roger Parloff in Lawfare: Lessons From the [Earlier] Minnesota Civil Contempt Case
• NYT: Former ICE lawyer Ryan Schwank, who was also an instructor at the federal government’s law enforcement training academy in Georgia, blew the whistle on the Trump’s administration alleged dismantling of the program for training new ICE agents, rendering it “deficient, defective and broken.”

A Note on the Abrego Garcia Case

The Trump DOJ filed its amended witness list ahead of Thursday’s evidentiary hearing on Kilmar Abrego Garcia’s claim that he is the victim of a vindictive prosecution — and it appears to include one small concession by the government.

Its original witness list, filed back in October, didn’t include then-acting U.S. Attorney Robert McGuire. The administration asserted that McGuire’s two previous sworn declarations filed in the case would suffice to establish that he independently made the decision to prosecute Abrego Garcia without interference from Main Justice or the White House:

Mr. McGuire will obviously be present in court during the hearing and fully expects to be called by the defense as a witness. Even if the defense does not call Mr. McGuire as a witness, Mr. McGuire will still be available and to answer the Court’s questions under oath.

But now McGuire is listed as a government witness on the amended witness list, which I suspect is a sign that the administration has gotten the message from the judge that the burden is on it to establish that this was a legitimate prosecution. So it appears now that McGuire is not going to sit this one out, as originally planned. (One bit of housekeeping: A permanent U.S. attorney was confirmed last year, and McGuire is now the first assistant U.S. attorney in Nashville.)

I’ll be in Nashville Thursday for the hearing in what is now the premier vindictive prosecution case testing the bounds of the Trump DOJ’s lawlessness. Stay tuned.

The Retribution: Foiled for Now Edition

After a grand jury unanimously rejected the case, D.C. U.S. Attorney Jeanine Pirro has decided to stop pursuing the prosecution of six Democratic lawmakers who made a video urging members of the military and intel communities not to comply with unlawful orders, NBC News reports.

Lawless Boat Strike No. 44

Three people were killed in another U.S. strike on an alleged drug-smuggling boat in the Caribbean, bringing the known death toll in President Trump’s lawless high seas campaign to at least 150.

The Pentagon’s Decaying Legal Culture

Jack Goldsmith, who headed the DOJ’s Office of Legal Counsel under Bush II, observes that Defense Secretary Pete Hegseth’s assault on the Pentagon’s rule-of-law culture is happening on three fronts:

First, it has sought to ensure that the senior ranks of lawyers are filled with loyalists. …

Second, the administration has issued formal directives to eliminate lawyers’ independent judgment. …

Third, the administration has fired, threatened, or sidelined lawyers in the government who express disagreement with the party line established in the White House (or who were connected to past legal actions against Trump). 

This is a historic shift that reverses a half century of post-Vietnam reckoning for the U.S. military.

The Corruption: Pardon Edition

WSJ:

Weeks after President Trump granted a pardon to convicted Binance founder Changpeng Zhao in October, executives at the crypto exchange dismantled a staff investigation into $1 billion that had recently moved through Binance to a network funding Iran-backed terror groups, according to company documents and people familiar with Binance’s operations. …

Binance subsequently fired the investigators who had uncovered the transfers—and the network remained active.

Trickle-down corruption.

Jeffrey Epstein Watch

• Peter Mandelson, the former UK ambassador to the United States, was arrested Monday at his home in London in connection with allegations that he had passed confidential government information to Jeffrey Epstein. He was released on bail several hours later.
• NPR: The Trump DOJ has withheld some Epstein files related to allegations that President Trump sexually abused a minor:

NPR reviewed multiple sets of unique serial numbers appearing before and after the pages in question, stamped onto documents in the Epstein files database, FBI case records, emails and discovery document logs in the latest tranche of documents published at the end of January. NPR’s investigation found dozens of pages that appear to be catalogued by the Justice Department but not shared publicly.

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