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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Presumption of Regularity Is Gone

The pace of this important story is slow by dramatic standards, but by the somnambulant standards of the federal judiciary, the erosion of the credibility of the Justice Department, which took decades to establish and has all but vanished in one year under Trump II, is moving at lightning speed.

The first six items in today’s Morning Memo feature some variation on the theme of confrontation between federal judges and the Trump DOJ, all of them since late last week.

One of the things I hear most often from readers is: So what? If the judges don’t do anything about it, this is all play-acting.

I think this is more than kabuki theater. There has been movement. As Lawfare’s Anna Bower and I discussed at last month’s Morning Memo Live event, it took district judges about six months last year to catch on to what was happening and stop giving the Trump DOJ any benefit of the doubt. Over the last six months, you’ve seen increasingly harsh assessments from judges, and slow but definite steps towards contempt and sanctions.

It’s slow going though, and ultimately it will be up to appeals courts to have district judges’ backs, and the track record on that front so far is decidedly underwhelming.

Deliberate Sabotage

A NYT review found 35 instances since August in which federal judges have issued show cause orders for why Trump DOJ attorneys should not be sanctioned for failing to abide by court orders in immigrant habeas cases.

The judge in Minnesota who last week found special assistant U.S. Attorney Matthew Isihara in contempt and imposed a $500 fine until he complied with her order (he did) issued a scathing new rebuke in that case despite the government’s eventual compliance:

SAUSA Isihara blamed his oversights on this case inadvertently “slipp[ing] through the cracks.” But SAUSA Isihara had notice of this case and at least three chances to remedy the issue before the show-cause hearing. And the Government offered little defense to avoid contempt. Rather, the Government asked the Court to exercise its “discretion” and “good graces” based on the understaffing and oversized caseloads in the U.S. Attorney’s Office. But since the beginning of Operation Metro Surge, the Government has offered that excuse to this Court again, and again, and again (and to other judges in this district again, and again, and again, and again, and again, and again) to excuse its oversights and disobedience of court orders in immigration habeas cases.

Isihara, a military JAG, isn’t the problem, but a symptom of a Justice Department deliberately broken by President Trump (whose mug shot now adorns the exterior wall of Main Justice in a victorious middle-finger authoritarian salute), as U.S. District Judge Laura M. Provinzino pointed out in a footnote:

SAUSA Isihara stated at the show-cause hearing that prior to joining the U.S. Attorney’s Office as a SAUSA last month, he had not practiced in federal court. Since joining the U.S. Attorney’s Office, he has been assigned nearly 130 cases.

Assigning some 130 cases to someone with no federal court experience is deliberate sabotage.

Trump DOJ’s Latest Dipsy-Doo

As Morning Memo reported two weeks ago, Trump DOJ lawyer Tiberius Davis told U.S. District Judge James Boasberg in a hearing in the original Alien Enemies Act case that the administration’s agreement with El Salvador to ship immigrants there for confinement, including in CECOT, would expire in March, after one year.

That was a bit of news, and it caught Boasberg’s ear because he’s overseeing a separate case in which human rights groups are suing to invalidate that agreement. So Boasberg circled back and asked Davis again if the agreement was set to expire after one year, and Davis confirmed what he’d originally said.

Three days later, Boasberg followed up in the other case by asked the Justice Department to file a brief on whether and when the agreement expires and whether that moots the case.

In its response to Boasberg, the Trump DOJ dipsy-doo’d again: “Defendants respectfully state that the non-legally binding diplomatic arrangement at issue in this case does not have a termination date.” (Davis is listed on the filing that case, too.)

It’s this kind of inability to get straight or consistent answers from DOJ lawyers that is driving judges crazy and spelled such a quick end to the presumption of regularity previously afforded to the Justice Department.

It’s still not clear that Davis was wrong when he told Boasberg it was a one-year agreement. In the case challenging the agreement, the plaintiffs already succeeded in making public a March 22, 2025 letter agreement between the administration and El Salvador that says El Salvador would hold the AEA detainees “for up to one year” in exchange for a $4.76 million grant.

Mass Deportation Watch

• NYT: A 23-year-old U.S. citizen was fatally shot by ICE last March in Texas, but ICE’s involvement didn’t become public until last week.
• Star Tribune: ICE detained a Minnesota teen, labeled him an ‘unaccompanied minor,’ and lost him
• Bloomberg: U.S. District Judge Joseph Goodwin of the Southern District of West Virginia excoriated ICE for wearing masks à la the KKK and called the Trump mass deportation operation a “regime of secret policing”:

Antiseptic judicial rhetoric cannot do justice to what is happening. Across the interior of the United States, agents of the federal government—masked, anonymous, armed with military weapons, operating from unmarked vehicles, acting without warrants of any kind—are seizing persons for civil immigration violations and imprisoning them without any semblance of due process. The systematic character of this practice and its deliberate elimination of every structural feature that distinguishes constitutional authority from raw force place it beyond the reach of ordinary legal description. It is an assault on the constitutional order. It is what the Fourth Amendment was written to prevent. It is what the Due Process Clause of the Fifth Amendment forbids.

Judge Irate Over Reporter Search Warrant

U.S. Magistrate Judge William B. Porter of the Eastern District of Virginia tore into Trump DOJ attorneys for not alerting him to a law protecting journalists from government searches and seizures when it applied for a search warrant last year for the home of WaPo Hannah Natanson.

Porter also revealed in the court hearing that he had previously turned down the Natanson search warrant several other times before he finally approved it.

Blanche Does It Again: ‘You’re Fired’

On a separate front, the Trump DOJ is continuing to provoke a confrontation with federal judges over who has the power to name interim U.S. attorneys. As soon as the judges of the Eastern District of Virginia named James W. Hundley as a replacement for the disgraced Lindsey Halligan on Friday, he was fired by Deputy Attorney General Todd Blanche:

Here we go again. EDVA judges do not pick our US Attorney. POTUS does. James Hundley, you’re fired! https://t.co/QnHHUZqhw1

— Todd Blanche (@DAGToddBlanche) February 20, 2026

The latest eff you to federal judges came nine days after Blanche similarly fired the judge-appointed interim U.S. attorney in the Northern District of New York.

3 Killed in 43rd Known Boat Strike

The death toll in the lawless U.S. campaign of high seas attacks against alleged drug-smuggling boats rose to at least 147 when three people were killed Friday in a strike in the eastern Pacific.

Quote of the Day

“I thought his head was going to explode.”—Connecticut Gov. Ned Lamont (D-CT), who witnessed President Trump getting the news that the Supreme Court had struck down his global tariffs

Police Close Probe of Shawn DeRemer

After reviewing video footage of the incident, D.C. U.S. Attorney Jeanine Pirro’s office has determined no crime occurred when Labor Secretary Lori Chavez-DeRemer’s husband Shawn DeRemer embraced a department employee in what his lawyer called a “friendly hug/embrace.”

“Based upon the evidence presented to this office in relation to the video, there is no indication of a crime,” a spokesperson for Pirro said.

Shawn DeRemer has reportedly been barred from the Labor Department’s D.C. headquarters and was disinvited to the premiere of the “Melania” documentary after two department employees complained he had touched them inappropriately.

DeRemer has denied the allegations.

Court Sides With Trump on Slavery Exhibit

The 3rd Circuit Court of Appeals lifted parts of the preliminary injunction issued by a district judge that required the Trump administration to restore slavery exhibits it had removed at the Philadelphia site of the former home of President George Washington, but by the time the appeals court intervened, the administration had already restored a significant portion of what it had originally taken down.

10 Commandments Okay in Classrooms

A majority of the full 5th Circuit Court of Appeals cleared the way for a 2024 Louisiana law requiring that the 10 Commandments be posted in every public school classroom, including colleges and universities.

The Joke Is On Us

Mike Somes: The Last Idiot Who Earnestly Believes in the American Experiment

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