How Low Can They Go?

Three major developments in Donald Trump’s retribution campaign yesterday laid bare more than ever before — as hard as that may be to believe — the depths to which the Justice Department will go under acting Attorney General Todd Blanche to do the president’s bidding.

And yet … amid the carnage was proof positive that the Trump vendettas are fundamentally weak cases that can be effectively fought and won. While that doesn’t spare the Comey family or dozens of other putative defendants from the financial and emotional costs of Trump retributions, it does stiffen the spine as we settle in for a long siege on the rule of law.

1. SPLC Comes Out Swinging

In its first formal response to the deeply flawed federal indictment of its paid informant program, the Southern Poverty Law Center aimed a one-two punch at the Justice Department.

The civil rights organization — which has added D.C. attorney Abbe Lowell to its defense team — fired back with two motions that felt like brushback pitches:

• Motion to Address the Government’s Materially False Statements and to Enforce Rules Prohibiting Further Prejudicial Extrajudicial Statements
• Motion to Disclose Transcript of Grand Jury Proceedings

The big picture issue that both motions are concerned with is the SPLC’s history of providing law enforcement, including the FBI, with information it has obtained from its paid informants.

The first motion above targets extrajudicial statements by Blanche on Laura Ingraham’s Fox News show claiming: “There’s no information that we have that suggests that the money they were paying to these informants and these members of these organizations, they then turned around and shared what they learned with law enforcement.”

Not just false in the abstract, the SPLC alleges. It claims that weeks before the indictment it gave federal prosecutors in Alabama information that showed instances in which the organization had shared information from its informants with federal law enforcement.

The SPLC’s attorneys went so far as to send an April 17 letter to federal prosecutors imploring them to inform the grand jury of six categories of exculpatory evidence. Prosecutors did not respond to the letter. The indictment was issued on April 21.

The SPLC wants DOJ to correct or retract Blanche’s comments.

The more substantive of the two motions seeks the grand jury transcripts in an effort to get the indictment dismissed before even having to argue that this is a vindictive prosecution and legally flawed in other ways.

The prospect that prosecutors improperly instructed the grand jury was evident as soon as the indictment was issued. An essential intent element to the fraud allegations was not included in the indictment, and the SPLC seizes on this and statements from Blanche, FBI Director Kash Patel, and President Trump to argue that the grand jury was “actively weaponized” against it:

The SPLC claims it was never contacted nor subpoenaed by prosecutors before the indictment. Instead, its attorneys reached out to the U.S. Attorney’s Office in Alabama. Prosecutors told them they thought the records of the informant program had been destroyed. Not so, the SPLC said. It says it accepted a subsequent grand jury subpoena and produced some 15,000 pages of records on April 17. The indictment came down two business days later.

In its motion seeking the grand jury transcripts, the SPLC (in what turned out to be an especially timely move) cites Comey’s first prosecution in Virginia, where he succeeded in obtaining the grand jury transcripts because of notable irregularities in how the Trump DOJ handled his case.

2. The New Comey Indictment Is Laughable

The First Amendment problems with the new indictment of James Comey, this time in North Carolina, are so obvious that the effect is to dispense with any pretense that this is anything other than a vindictive prosecution, despite Blanche’s flustered protestations at yesterday’s tense press conference at Main Justice:

A sampling of the informed reaction:

• “No reasonable person could believe that Comey intended to threaten the president via seashells,” a DOJ official told Ryan Reilly of NBC News. “Everyone at this DOJ should be ashamed. I know I am.”
• Eugene Volokh digs into the elements of the alleged seashell crime and concludes: “I think this prosecution is unjustified, and will get thrown out.”
• Ken White, former federal prosecutor and longtime criminal defense attorney:

The point of the indictment is to demonstrate that the United States Department of Justice is wholly an instrument of Donald Trump’s senescent pique, no more independent of him than a boil on his ass. The point is to show that the administration can, and will, use the Department’s mechanisms to punish enemies. The point is to show that the Department can, and will, punish protected speech. The point is to show that the Department is staffed by committed fanatics willing to do anything, however unethical and unconstitutional, to promote Trump.

3. The OTHER Comey Case

There’s a good argument to be made the most important news of the day came in the civil lawsuit by Comey’s daughter Maurene, who won a significant ruling as she challenges her unlawful firing as a federal prosecutor.

Maurene’s case is shaping up to be a major case not because of who her father is but because she’s confronting head-on the trap that the Trump administration has set for fired government workers. The Trump trap goes something like this, in short:

• Fire government workers without cause or advance notice, citing merely Trump’s powers under Article II of the Constitution.
• Force fired government workers to take their complaints to the Merit Systems Protection Board.
• Stack the formerly independent Merit Systems Protection Board with loyalists and make clear that their jobs depend on doing Trump’s bidding.

It’s quite a bit more complicated than that in the particular, but that’s the box the Trump administration was trying to put Maurene in. It had moved to dismiss her lawsuit on the grounds that she had to pursue her complaint through the MSPB.

U.S. District Judge Jesse Furman of Manhattan elegantly sidestepped many of the most bedeviling legal arguments in yesterday’s ruling. He rejected the Trump administration’s motion to dismiss, ruling that Trump’s invocation of his Article II powers in firing Maurene took her case out of from under the auspices of the MSPB and entitled her to proceed in federal court.

It’s a major win for her and potentially for a swath of federal workers summarily fired with a broad and vague hand-wave toward Article II powers, but there’s a long way to go in this litigation.

TPM Exclusive

Hunter Walker and Josh Kovensky: Inside The ‘Red Team’ House Dem Task Force That’s Running War Games And Taking On Trump’s Election Threats

Lawless Boat Strike Campaign Accelerates

New York Times: “In the past few weeks, the military has without public notice increased the number of secret fixed-wing attack aircraft and armed MQ-9 Reaper drones operating from bases in El Salvador and Puerto Rico, allowing the military to accelerate the strikes, the two people said, speaking on condition of anonymity to discussion operational matters.”

Latest on CIA Deaths in Mexico

We’re slowly inching closer to some semblance of the truth about the role of the CIA in Mexican counternarcotics operations.

The Chihuahua special prosecutor confirmed yesterday that there were two other “foreigners” at the scene of the car accident that killed two CIA agents after a raid of a Mexican drug lab, but did not confirm that they were additional American CIA agents.

The Los Angeles Times reported last week that two other CIA officers “were present during the raid” and were following the vehicle that crashed down a mountainside, at which point they “went down the mountain by foot in hopes of saving their colleagues, but it was too late.”

Mass Deportation Watch

• Circuit Split on Mandatory Detentions: In a 3-0 ruling, the 2nd Circuit Court of Appeals rejected the Trump administration’s ahistorical interpretation of a 30-year-old statute that has flooded the federal courts with habeas cases. The appeals court, in an opinion written by a Trump appointee, found significant constitutional questions with “what would be the broadest mass detention-without-bond mandate in our Nation’s history for millions of noncitizens.”
• 3rd Country Removal Nightmare: NPR interviews five of the 15 Latin American migrants shipped off to the Democratic Republic of Congo by the Trump administration.
• Asylum Seekers Blocked Again: After losing an appeal court decision last week over its policy of restricting asylum seekers at the border, the Trump State Department has implemented a new policy to try to preempt asylum seekers by refusing to issue travel documents to anyone who fears returning to their home country.

The Retribution: ABC Edition

The FCC, chaired by Trump toady Brendan Carr, has launched an early review of all station licenses owned by ABC, a full-frontal assault on a major broadcaster behind the tissue-thin-veil of an investigation into the network’s DEI policies. The move comes after President Trump and the first lady demanded that ABC fire late night host Jimmy Kimmel over a joke.

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