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Tag: Federal prosecutors

  • Colorado medical device company admits to fraud scheme, agrees to pay DOJ millions in penalties

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    A Colorado medical device company admitted to orchestrating an elaborate health care fraud scheme that resulted in the overbilling of patients and insurers by hundreds of millions of dollars.

    Zynex Inc., an Englewood-based firm that manufactures and sells medical devices used for pain management and rehabilitation, entered into an agreement Tuesday with the U.S. Department of Justice to avoid prosecution.

    The company, as part of the deal, agreed to pay between $5 million and $12.5 million in penalties — the final tally will depend on its earnings and profit during the settlement period — and will forfeit millions of dollars in unpaid claims.

    Zynex admitted to participating in a conspiracy to commit health care fraud, securities fraud, mail fraud and other violations, the U.S. Attorney’s Office for the District of Rhode Island announced in a news release.

    The agreement comes a month after a federal grand jury indicted two former top Zynex executives who allegedly spearheaded the years-long scheme.

    Zynex, in its deal with the government, also admitted to collecting more than $873 million for its products, including more than $600 million for supplies, “the vast majority of which were the result of fraud,” investigators said.

    Have you used Zynex for medical devices? We want to talk to you.

    The company acknowledged that it shipped and billed for medically unnecessary supplies in excess quantities and misled investors who were unaware of the fraudulent billing practices.

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  • Families of plane crash victims ask US appeals court to revive a criminal case against Boeing

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    By RIO YAMAT

    Thirty-one families that lost relatives in two fatal crashes of Boeing 737 Max jetliners asked a federal appeals court on Thursday to revive a criminal case against the aircraft manufacturer.

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    Associated Press

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  • Luigi Mangione will not face death penalty, judge rules

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    Luigi Mangione will not face death penalty, judge rules

    I’M JASON NEWTON AND I’M ASHLEY HINSON. LUIGI MANGIONE. DEFENSE ATTORNEYS WANT TO BLOCK CERTAIN EVIDENCE FROM HIS UPCOMING TRIAL. MAGGIONI IS ACCUSED OF KILLING UNITEDHEALTHCARE CEO BRIAN THOMPSON IN MANHATTAN. THAT WAS A YEAR AGO TODAY, THOUGH, POLICE OFFICERS FROM ALTOONA, PENNSYLVANIA, CONTINUE THEIR TESTIMONY ABOUT THE DAY OF MANGIONE’S ARREST. KHIREE JOINING US NOW IN KAI BODY CAMERA VIDEO PLAYED IN COURT TODAY, RIGHT? IT DID. AND ASHLEY JASON, THE BODY CAMERA VIDEO SHOWS THE MOMENTS AFTER POLICE RESPONDED TO THE ALTOONA MCDONALD’S WHERE THEY FOUND MANGIONE. THIS HAPPENED FIVE DAYS AFTER BRIAN THOMPSON’S MURDER. IN THE VIDEO, YOU CAN HEAR ONE OF THE OFFICERS SAY, QUOTE, IT’S HIM, DUDE, IT’S HIM. THAT’S IN REFERENCE TO PHOTOS CIRCULATING ONLINE SHOWING THE MAN POLICE SAY KILLED THOMPSON. ACCORDING TO OFFICER CHRISTINA WASSER, THEY BEGAN SEARCHING MANGIONE’S BAG AFTER PUTTING HIM IN HANDCUFFS. INSIDE THE BAG, THEY FOUND A LOADED GUN MAGAZINE. THE MAGAZINE WAS WRAPPED UP IN A PAIR OF UNDERWEAR. MANGIONE’S DEFENSE WANTS THE CONTENTS OF THAT BAG EXCLUDED FROM HIS TRIAL. THEY CLAIM OFFICERS DIDN’T HAVE A PROPER WARRANT TO SEARCH IT. TODAY, OFFICER WASSER SAID THAT SHE WAS FOLLOWING POLICE PROTOCOLS. THOSE PROTOCOLS, SHE TOLD THE COURT, REQUIRE OFFICERS SEARCH A SUSPECT’S PROPERTY AT THE TIME OF AN ARREST. OFFICER WASSER ALSO TESTIFIED MANGIONE WAS TOLD OF HIS RIGHT TO REMAIN SILENT, WHICH HE INVOKED WHILE OFFICERS FOUND THE MAGAZINE AT THE SCENE. THEY DID NOT UNCOVER THE NOTEBOOK UNTIL THEY RETURNED TO THE POLICE STATION. MANGIONE HAS PLEADED NOT GUILTY TO STATE AND FEDERAL MURDER CHARGES. HIS TEAM TODAY ALSO CALLED ON A JUDGE TO BAN THE WORDS,

    Luigi Mangione will not face the death penalty for allegedly killing UnitedHealthcare CEO Brian Thompson in December 2024, a federal district judge ruled.The decision is a loss for federal prosecutors, who were adamant about pursuing the death penalty in the case.This is a developing story and will be updated.

    NEW YORK —

    Luigi Mangione will not face the death penalty for allegedly killing UnitedHealthcare CEO Brian Thompson in December 2024, a federal district judge ruled.

    The decision is a loss for federal prosecutors, who were adamant about pursuing the death penalty in the case.

    This is a developing story and will be updated.

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  • Robert Dear, shooter in Colorado Springs Planned Parenthood attack, dies in federal custody

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    The man accused of killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs a decade ago died in custody over the weekend, according to the Federal Bureau of Prisons.

    Robert Dear, 67, died at 6:30 a.m. Saturday in the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, Bureau of Prisons spokesperson Randilee Giamusso said. His death was “preliminarily linked to natural causes,” Giamusso said Tuesday, and prison officials followed advanced medical orders before he died.

    Dear’s death ends a decade-long — and ultimately unsuccessful — effort to convict him of crimes connected to the mass shooting. Although Dear had been in state or federal custody since the 2015 attack and confessed to carrying out the mass shooting, he was never convicted because he was always considered to be too mentally ill to go through the court process — that is, he was consistently found incompetent to stand trial.

    Fourth Judicial District Attorney Michael Allen said in a statement Tuesday that the victims of the shooting were denied justice in the “evil attack.”

    “All three victims and this community deserved the full measure of justice in this case, but they are now denied that possibility,” Allen said. “Their family members and loved ones have endured this horror for far too long.”

    The Bureau of Prisons declined to provide any additional information about Dear’s death and officials with the Greene County Medical Examiner’s Office did not immediately return requests for more information.

    Dear’s attorneys did not respond to requests for comment Tuesday.

    Dear was accused of attacking the Planned Parenthood clinic on Nov. 27, 2015. Authorities believe he intended to wage “war” on the clinic because the staff performed abortions. He arrived armed with four SKS rifles, five handguns, two more rifles, a shotgun and more than 500 rounds of ammunition, according to the U.S. Attorney’s Office.

    Twenty-seven people who were inside the clinic at the time hid until they could be rescued by law enforcement, according to prosecutors. Dear fired 198 rounds in the attack and tried to blow up propane tanks to take out law enforcement vehicles during a five-hour standoff.

    Those killed were Ke’Arre Stewart, 29, Jennifer Markovsky, 36, and Garrett Swasey, 44, a campus police officer who responded to the clinic after hearing there was an active shooter. Another four police officers were wounded.

    The issue of Dear’s competency stalled the state’s murder case against him in 2016. Federal prosecutors brought their own case alleging firearm and civil rights violations in 2019; those proceedings also stalled due to Dear’s compromised mental state.

    A competency evaluation considers whether a criminal defendant is mentally ill or developmentally disabled, and whether that mental illness impedes the defendant’s ability to understand the court process. Rooted in the constitutional rights to due process and a fair trial, competency centers on two prongs — whether defendants have a factual and rational understanding of the proceedings, and whether defendants are able to consult with their attorneys and assist in their own defenses.

    Experts previously testified that Dear understood the facts and circumstances of his case but was still incompetent to proceed because he could not assist in his own defense.

    Dear was known for frequent outbursts in court. During a 2019 hearing, he declared himself to be a “religious zealot” who was being prosecuted in a “political kangaroo court.” In 2021, he insisted in federal court that he was competent to stand trial, shouting, “I’m not crazy.”

    In September, a federal judge started the process for Dear to be committed long-term to the mental health facility in Missouri after finding he was unlikely to be restored to competency.

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  • Colorado woman among 3 activists charged with alleged ‘doxing’ of ICE agent in Los Angeles

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    A Colorado woman and two other activists opposed to President Donald Trump’s immigration raids in Los Angeles have been indicted on charges of illegally “doxing” a U.S. Immigration and Customs Enforcement agent, federal prosecutors said.

    Ashleigh Brown, a 38-year-old woman from Aurora, is among the three accused of following the unidentified ICE agent home, livestreaming their pursuit and posting the agent’s address online, according to a statement from the U.S. Attorney’s Office for the Central District of California.

    Once they arrived at the agent’s home, prosecutors allege the women shouted “ICE lives on your street and you should know,” according to the indictment.

    The defendants are each charged with one count of conspiracy and one count of publicly disclosing the personal information of a federal agent, the statement said.

    Brown, who is being held in federal custody without bail, also faces charges of assault on a federal officer in a separate case stemming from a protest in Los Angeles in August, according to court records.

    The Aurora woman was part of a small group of protesters who gathered outside the Edward R. Roybal Federal Building on Aug. 2 to protest immigration enforcement and raids in Los Angeles, according to court documents.

    During that protest, Brown hit one of the Federal Protective Service officers trying to detain a man who jumped on the hood of a government car leaving the Roybal building, the criminal complaint alleges.

    The Federal Protective Service is a U.S. Department of Homeland Security agency responsible for protecting federally owned and leased buildings.

    Brown’s federal assault case is still ongoing.

    Prosecutors said the second suspect accused of doxing an ICE agent, a 25-year-old woman from Panorama City in Los Angeles, is free on $5,000 bail. Authorities are still searching for the third defendant, a 37-year-old woman from Riverside, California.

    “Our brave federal agents put their lives on the line every day to keep our nation safe,” Acting U.S. Attorney Bill Essayli said in a statement. “The conduct of these defendants are deeply offensive to law enforcement officers and their families. If you threaten, dox, or harm in any manner one of our agents or employees, you will face prosecution and prison time.”

    Doxing is a typically malicious practice that involves gathering private or identifying information and releasing it online without the person’s permission, usually in an attempt to harass, threaten, shame or exact revenge.

    Attorneys for the women could not immediately be reached on Monday. An email was sent to the Federal Public Defender’s Office asking if its attorneys are representing the defendants.

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  • Man accused of trafficking enough fentanyl to kill millions released without bond ahead of trial

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    Man accused of trafficking enough fentanyl to kill millions released without bond ahead of trial

    Federal prosecutors are appealing a decision to release Larry Phillips, an accused fentanyl trafficker, without bond before his trial.

    Phillips was arrested at Atlanta’s Hartsfield-Jackson International Airport with six kilograms of fentanyl, which prosecutors say is enough to potentially kill millions.

    “A defendant accused of trafficking this quantity of fentanyl should not have been released,” said U.S. Attorney Theodore Hertzberg.

    Phillips was released by a U.S. Magistrate Judge without having to post any money, despite a federal prosecutor’s request for detention without bond.

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    The prosecution argues that Phillips poses a flight risk and a danger to the community, citing the large quantity of fentanyl involved and his lack of legitimate employment.

    A co-conspirator, Rashad Davis, was arrested in Phoenix with eight kilograms of fentanyl, bringing the total to 14 kilograms with an estimated street value of $700,000.

    The prosecution’s court filing also highlights concerns about Phillips’ possession of firearms and the uncertainty surrounding the location of his vehicle.

    The defense has filed a response indicating that Phillips has secured employment and has strong family and community ties, arguing against the government’s motion to detain him.

    Hertzberg said Phillips has pleaded not guilty, and he anticipates Davis will too.

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  • Feds say 8 Tren de Aragua gang members among 30 people charged in Colorado gun, drug-trafficking cases

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    Federal prosecutors charged 30 people with largely gun and drug-trafficking crimes after a months-long investigation in metro Denver, a mix of federal and local officials announced at a news conference Monday.

    Those charged include eight people who investigators believe are members of the Venezuelan gang Tren De Aragua, U.S. Attorney Peter McNeilly said. He said he considers three of the eight gang members to be “leaders.” Two of the leaders were arrested July 30 in Colombia, court records show.

    McNeilly could not say how many Tren de Aragua gang members remain in Colorado, whether the local members were taking direction from leaders in Venezuela, or how many of the 30 people arrested in the operation were Venezuelan nationals.

    David Olesky, a special agent in charge with the U.S. Drug Enforcement Administration, said the federal charges against eight gang members “diminished” Tren de Aragua’s “influence and capabilities” in the Denver area.

    The federal investigation started in October when Arapahoe County Sheriff Tyler Brown sought federal assistance to deal with rising crime at the Ivy Crossing apartments on Quebec Street. The subsequent investigation involved at least 40 undercover operations and branched out significantly from the apartment complex.

    Federal investigators seized or purchased 69 guns during the investigation, according to court records. Twenty-seven of those guns were connected through ballistics to 67 “separate shooting events,” said Brent Beavers, Denver special agent in charge for the Bureau of Alcohol, Tobacco, Firearms and Explosives.

    Court records show those incidents included drive-by shootings, an attempted carjacking and a shootout between two large groups, among others.

    “By removing these firearms from the street, we’ve disrupted a dangerous cycle of violence, prevented further harm to our community and sent a clear message to criminal networks,” Beavers said.

    The defendants in the federal cases announced Monday were not charged in connection with those shootings.

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    Shelly Bradbury

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  • Capitol rioter who assaulted at least 6 police officers is sentenced to 5 years in prison

    Capitol rioter who assaulted at least 6 police officers is sentenced to 5 years in prison

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    A Florida man described by prosecutors as one of the most violent rioters who attacked the U.S. Capitol was sentenced on Wednesday to five years in prison, court records show.

    Kenneth Bonawitz, a member of the far-right Proud Boys extremist group’s Miami chapter, assaulted at least six police officers as he stormed the Capitol with a mob of Donald Trump supporters on Jan. 6, 2021. He grabbed one of the officers in a chokehold and injured another so severely that the officer had to retire, according to federal prosecutors.

    Bonawitz, 58, of Pompano Beach, Florida, carried an eight-inch knife in a sheath on his hip. Police seized the knife from him in between his barrage of attacks on officers.

    “His violent, and repeated, assaults on multiple officers are among the worst attacks that occurred that day,” Assistant U.S. Attorney Sean McCauley wrote in a court filing.

    U.S. District Judge Jia Cobb sentenced Bonawitz to a five-year term of imprisonment followed by three years of supervised release, according to court records.

    The Justice Department recommended a prison sentence of five years and 11 months for Bonawitz, who was arrested last January. He pleaded guilty in August to three felonies — one count of civil disorder and two counts of assaulting police.

    Bonawitz took an overnight bus to Washington, D.C., chartered for Trump supporters to attend his “Stop the Steal” rally near the White House on Jan. 6.

    Bonawitz was one of the first rioters to enter the Upper West Plaza once the crowd overran a police line on the north side. He jumped off a stage built for President Joe Biden’s inauguration and tackled two Capitol police officers. One of them, Sgt. Federico Ruiz, suffered serious injuries to his neck, shoulder, knees and back.

    “I thought there was a strong chance I could die right there,” Ruiz wrote in a letter addressed to the judge.

    Ruiz, who retired last month, said the injuries inflicted by Bonawitz prematurely ended his law-enforcement career.

    “Bonawitz has given me a life sentence of physical pain and discomfort, bodily injury and emotional insecurity as a direct result of his assault on me,” he wrote.

    After police confiscated his knife and released him, Bonawitz assaulted four more officers in the span of seven seconds. He placed one of the officers in a headlock and lifted her off the ground, choking her.

    “Bonawitz’s attacks did not stop until (police) officers pushed him back into the crowd for a second time and deployed chemical agent to his face,” the prosecutor wrote.

    More than 100 police officers were injured during the siege. Over 1,200 defendants have been charged with Capitol riot-related federal crimes. About 900 have pleaded guilty or been convicted after trials. Over 750 have been sentenced, with nearly 500 receiving a term of imprisonment, according to data compiled by The Associated Press.

    Dozens of Proud Boys leaders, members and associates have been arrested on Jan. 6 charges. A jury convicted former Proud Boys national chairman Enrique Tarrio and three lieutenants of seditious conspiracy charges for a failed plot to forcibly stop the peaceful transfer of presidential power from Trump to Biden after the 2020 election.

    Bonawitz isn’t accused of coordinating his actions on Jan. 6 with other Proud Boys. But he “fully embraced and embodied their anti-government, extremist ideology when he assaulted six law enforcement officers who stood between a mob and the democratic process,” the prosecutor wrote.

    Bonawitz’s lawyers didn’t publicly file a sentencing memo before Wednesday’s hearing. One of his attorneys didn’t immediately respond to emails and a phone call seeking comment.

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  • Political Accountability Isn’t Dead Yet

    Political Accountability Isn’t Dead Yet

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    On September 22, when federal prosecutors accused Senator Robert Menendez of taking hundreds of thousands of dollars in bribes, Representative Andy Kim, a fellow New Jersey Democrat, asked one of his neighbors what he thought of the charges. “That’s Jersey,” the man replied.

    The neighbor’s shrug spoke volumes about not only a state with a sordid history of political corruption but also a country that seemed to have grown inured to scandal. In nearby New York, George Santos had settled into his Republican House seat despite having been indicted on more than a dozen counts of fraud and having acknowledged that the story he’d used to woo voters was almost entirely fiction. Criminal indictments have done nothing to dent Republican support for Donald Trump, who is currently the front-runner for both the GOP nomination and the presidency next year.

    It turns out, however, that the supposedly cynical citizens of New Jersey did care that their senior senator was allegedly on the take. In the days after the indictment was unsealed, multiple polls found that Menendez’s approval rating had plummeted to just 8 percent. New Jersey’s Democratic governor, Phil Murphy, and its other Democratic senator, Cory Booker, both called on Menendez to quit. All but three of the nine Democrats in New Jersey’s House delegation have urged the senator to resign, and one of them is his own son.

    Menendez has pleaded not guilty to the charges and rejected calls to resign. A son of Cuban immigrants, he has denounced the case against him as a racially motivated persecution. But his days in the Senate are almost certainly numbered, whether he leaves of his own accord or voters usher him out. Kim has announced that he will challenge Menendez next year, and so has Tammy Murphy, New Jersey’s first lady. Menendez’s trial is scheduled for May, just one month before the primary. Early polls show Menendez barely registering support among Democrats.

    Casey Michel: We’ve never seen anything like the Menendez indictment

    “I hit a breaking point,” Kim told me, explaining his decision to run. “I think a lot of people hit a breaking point, where they’re just like, ‘We’re done with this now.’”

    Accountability has come more swiftly for Santos. National party leaders had largely protected him—Speaker Kevin McCarthy and his successor, Mike Johnson, both needed Santos’s vote in the GOP’s tight House majority. But a damning report from the bipartisan House Ethics Committee proved to be his undoing: Earlier this month, Santos became just the sixth lawmaker in American history to be expelled from the House.

    The government’s case against Menendez could still fall apart; he’s beaten charges of corruption before. But the public can hold its elected officials to a higher standard than a jury would. If the appearance (and, in this case, reappearance) of impropriety can cause voters to lose faith in the system, the events of the past few months might go some way toward restoring it. That both Menendez and Santos have suffered consequences for their alleged misdeeds offers some reassurance to ethics watchdogs who have seen Trump survive scandal after scandal, and indictment after indictment. “You can’t get away with anything. There are still some guardrails,” Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, told me.

    Yet Trump’s enduring impact on political accountability remains an open question. Has he lowered the standards for everyone, or do the laws of political gravity still apply to ethically compromised lawmakers not named Trump? “Donald Trump is a unique animal,” Lisa Gilbert, the executive vice president of the Washington-based nonprofit Public Citizen, told me. “He has built a cultlike following and surrounded himself with people who believe that no matter what he does, he is in the right.” Few politicians could ever hope to build such a buffer.

    Trump hasn’t evaded accountability entirely: The ethical norms he shattered while in office likely contributed to his defeat in 2020. And although he’s leading in the polls, one or more convictions next year could weaken his bid and demonstrate that the systems meant to hold American leaders in check function even against politicians who have used their popularity to insulate themselves from culpability. “He is being charged,” Gilbert said. “There are accountability mechanisms that are moving in spite of that apparatus. And to me, that’s a sign that eventually the rule of law will prevail.”

    At the same time, the Menendez and Santos examples provide only so much comfort for ethics watchdogs. The allegations against both politicians were particularly egregious. The phrase lining his pockets is usually metaphorical, but in addition to gold bars, the FBI found envelopes of cash in the pockets of suit jackets emblazoned with Menendez’s name in his closet.

    The earlier allegations Menendez faced were almost as lurid; prosecutors said he had accepted nearly $1 million in gifts from a Florida ophthalmologist, including private flights and lavish Caribbean vacations, in exchange for helping the doctor secure contracts and visas for his girlfriends. A 2018 trial ended in a hung jury, and the Department of Justice subsequently dropped the case.

    Santos was caught lying about virtually his entire life—his religion, where he had gone to school, where he worked—and then was accused of using his campaign coffers as a personal piggy bank, spending the money on Botox and the website OnlyFans.

    Read: George Santos was finally too much for Republicans

    Some of the charges against Trump, such as falsifying business records and mishandling classified documents, involve more complicated questions of law. “A lot of the Trump scandals that he’s been indicted for may sort of be beyond the grasp of the average voter,” says Tom Jensen, the director of the Democratic firm Public Policy Polling, which conducted one of the surveys finding that Menendez’s approval rating had sunk after the indictment. “Gold bars are not beyond the grasp of the average voter. Voters get gold bars, and when it’s something that’s so easy for voters to understand, you’re a lot more likely to see this sort of precipitous decline.”

    Jensen told me that in his 16 years as a pollster, he had seen only two other examples where public support dropped so dramatically after the eruption of scandal. One was Rod Blagojevich, the former Democratic governor of Illinois who was convicted of attempting to sell the Senate seat that Barack Obama vacated when he became president in 2009. The other was John Edwards, who, after running for president as a Democrat in 2008, admitted to having an affair while his wife, Elizabeth, was battling a recurrence of breast cancer. (He would later admit to fathering a child with his mistress, and face charges that he illegally used campaign funds to hide the affair; Edwards was found not guilty on the one count on which the jury reached a verdict.)

    The Trump era has revealed an asymmetry in how the parties respond to scandal. Republicans have overlooked or justified all sorts of behavior that would have doomed most other politicians, including multiple allegations of sexual assault (such as those that Trump essentially admitted to in the infamous Access Hollywood video made public in 2016). Although Santos was expelled by a Republican-controlled House, Democrats provided the bulk of the votes to oust him, while a majority of GOP lawmakers voted against expulsion. Democrats were quick to pressure Senator Al Franken to resign in 2018 after several women accused him of touching them inappropriately. (Some Democrats later regretted that they had pushed Franken out so fast.) The party also forced a defiant New York Governor Andrew Cuomo to step down in 2021 amid multiple allegations of misconduct and harassment.

    Trump’s gut-it-out strategy seems to have inspired politicians in both parties to resist demands to resign and to bet that the public’s short attention span will allow them to weather just about any controversy. Gone are the days when a scandalized politician would quit at the first sign of embarrassment, as New York Governor Eliot Spitzer did in 2008, less than 48 hours after the revelation that he had patronized high-end prostitutes. Virginia Governor Ralph Northam was able to serve out his full term despite losing the support of virtually the entire Democratic Party in 2019 after photos surfaced of him dressed in racist costumes in a medical-school yearbook. Cuomo defied calls to resign for months, and Santos forced the House to expel him rather than quit. Menendez has similarly rebuffed the many longtime colleagues who have urged him to leave.

    Shame may have left politics in the Trump era, but consequences haven’t—at least in the cases of Menendez and Santos. “Maybe these can be first steps,” Bookbinder told me, sounding a note of cautious optimism. “If you say nothing matters, then really nothing will matter. I hope we can go back to the place where people do feel like they owe it to their constituents to behave in an ethical and legal way.”

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    Russell Berman

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  • A Plan to Outlaw Abortion Everywhere

    A Plan to Outlaw Abortion Everywhere

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    The year 2022 was a triumphant one for the anti-abortion movement. After half a century, the Supreme Court did what had once seemed impossible when it overturned Roe v. Wade, stripping Americans of the constitutional right to terminate a pregnancy. Now movement activists are feeling bolder than ever: Their next goal will be ending legal abortion in America once and for all. A federal ban, which would require 60 votes in the Senate, is unlikely. But some activists believe there’s a simpler way: the enforcement by a Trump Justice Department of a 150-year-old obscenity law.

    Explore the January/February 2024 Issue

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    The Comstock Act, originally passed in 1873 to combat vice and debauchery, prohibits the mailing of any “article or thing” that is “designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” In the law’s first 100 years, a series of court cases narrowed its scope, and in 1971, Congress removed most of its restrictions on contraception. But the rest of the Comstock Act has remained on the books. The law has sat dormant, considered virtually unenforceable, since the Roe v. Wade ruling in 1973.

    Following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022, the United States Postal Service asked the Justice Department for clarification: Could its workers legally transport abortion-inducing medications to states with bans? The DOJ replied by issuing a memo stipulating that abortion pills can be legally mailed as long as the sender does not intend for the drugs to be used unlawfully. And whether or not the drugs will be used within the bounds of state law, the memo notes, would be difficult for a sender to know (the pills have medical uses unrelated to abortion).

    From the May 2022 issue: The future of abortion in a post-Roe America

    If Donald Trump is reelected president, many prominent opponents of abortion rights will demand that his DOJ issue its own memo, reinterpreting the law to mean the exact opposite: that Comstock is a de facto ban on shipping medication that could end a pregnancy, regardless of its intended use (this would apply to the USPS and to private carriers like UPS and FedEx). “The language is black-and-white. It should be enforced,” Steven H. Aden, the general counsel at Americans United for Life, told me. A broader interpretation of the Comstock Act might also mean that a person receiving abortion pills would be committing a federal crime and, if prosecuted, could face prison time. Federal prosecutors could bring charges against abortion-pill manufacturers, providers receiving pills in the mail, or even individuals.

    The hopes of some activists go further. Their ultimate aim in reviving the Comstock Act is to use it to shut down every abortion facility “in all 50 states,” Mark Lee Dickson, a Texas pastor and anti-abortion advocate, told me. Taken literally, Comstock could be applied to prevent the transport of all supplies related to medical and surgical abortions, making it illegal to ship necessary tools and medications to hospitals and clinics, with no exceptions for other medical uses, such as miscarriage care. Conditions that are easily treatable with modern medicine could, without access to these supplies, become life-threatening.

    Legal experts say that the activists’ strategy could, in theory, succeed—at least in bringing the issue to court. “It’s not hypothetical anymore,” Mary Ziegler, a law professor at the UC Davis School of Law, told me. “Because it’s already on the books, and it’s not ridiculous to interpret it this way, [the possibility] is not far-fetched at all.”

    Eventually, the Supreme Court would likely face pressure to weigh in. Even though a majority of the Court’s justices have supported abortion restrictions and ruled to overturn Roe, it’s unclear how they’d rule on this particular case. If they were to uphold the broadest interpretation of the Comstock Act, doctors even in states without bans could struggle to legally obtain the supplies they need to provide abortions and perform other procedures.

    This is what activists want. The question is whether Trump would accede to their demands. After years of championing the anti-abortion cause, the former president seemed to pivot when he blamed anti-abortion Republicans’ extremism for the party’s poor performance in the 2022 midterm elections (only a small fraction of Americans favors a complete abortion ban). Recently, he’s come across as more moderate on the issue than his primary opponents by condemning Florida’s six-week abortion ban and endorsing compromise with Democrats.

    As president, Trump might choose not to enforce Comstock at all. Or he could order his DOJ to enforce it with discretion, promising to go after drug manufacturers and Planned Parenthood instead of individuals. It’s hard to be certain of any outcome: Trump has always been more interested in appeasing his base than reaching Americans in the ideological middle. He might well be in favor of aggressively enforcing the Comstock Act, in order to continue bragging, as he has in the past, that he is “the most pro-life president in American history.”

    This article appears in the January/February 2024 print edition with the headline “A Plan to Outlaw Abortion Everywhere.”

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    Elaine Godfrey

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  • How Trump Gets Away With It

    How Trump Gets Away With It

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    If Donald Trump regains the presidency, he will once again become the chief law-enforcement officer of the United States. There may be no American leader less suited to “take Care that the Laws be faithfully executed,” as the Constitution directs the president. But that authority comes with the office, including command of the Justice Department and the FBI.

    We know what Trump would like to do with that power, because he’s said so out loud. He is driven by self-interest and revenge, in that order. He wants to squelch the criminal charges now pending against him, and he wants to redeploy federal prosecutors against his enemies, beginning with President Joe Biden. The important question is how much of that agenda he could actually carry out in a second term.

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    Trump tried and failed to cross many lines during his time in the White House. He proposed, for example, that the IRS conduct punitive audits of his political antagonists and that Border Patrol officers shoot migrants in the legs. Subordinates talked the former president out of many such schemes or passively resisted them by running out the clock. The whole second volume of Special Counsel Robert Mueller’s report, which documented 10 occasions on which Trump tried to obstruct justice, can be read as a compilation of thwarted directives.

    From the November 2023 issue: How General Mark Milley protected the Constitution from Donald Trump

    The institutional resistance Trump faced has reinforced his determination to place loyalists in key jobs should he win reelection. One example is Jeffrey Clark, who tried to help Trump overturn the 2020 election. Trump sought to appoint Clark as acting attorney general in early January 2021, but backed off after a mass-resignation threat at the DOJ. People who know him well suggest that he would not let that threat deter him a second time. Trump will also want to fire Christopher Wray, the FBI director, and replace him with someone more pliable. Only tradition, not binding law, prevents the president and his political appointees from issuing orders to the FBI about its investigations.

    The top jobs at the DOJ require Senate confirmation, and even a Republican Senate might not confirm an indicted conspirator to overturn an election like Clark for attorney general. Under the Vacancies Reform Act, which regulates temporary appointments, Trump can appoint any currently serving Senate-confirmed official from anywhere in the executive branch as acting attorney general. Of course, all of the officials serving at the beginning of his new term would be holdovers from the Biden administration.

    Trump’s allies are searching for loyalists among the Republicans currently serving on several dozen independent boards and commissions, such as the Federal Trade Commission, that have “party balancing” requirements for their appointees. Alternatively, Trump could choose any senior career official in the Justice Department who has served for at least 90 days in a position ranked GS-15 or higher on the federal pay scale—a cohort that includes, for example, senior trial attorneys, division counsels, and section chiefs. As Anne Joseph O’Connell, a Stanford law professor and an expert on the Vacancies Reform Act, reminded me, “This is how we got Matthew Whitaker,” the former attorney general’s chief of staff, as acting attorney general. (Whitaker was widely criticized as unqualified.)

    Would some career officials, somewhere among the department’s 115,000 employees, do Trump’s bidding in exchange for an acting appointment? Trump’s team is looking.

    Once Trump has installed loyalists in crucial posts, his first priority—an urgent one for a man facing 91 felony charges in four jurisdictions—would be to save himself from conviction and imprisonment.

    Of the four indictments against him, two are federal: the Florida case, with charges of unlawful retention of classified documents and obstruction of justice, and the Washington case, which charges Trump with unlawful efforts to overturn the 2020 election. Those will be the easiest for him to dispose of.

    To begin with, there is little to stop Trump from firing Special Counsel Jack Smith, who is overseeing both of the federal investigations. Justice Department regulations confer a measure of protection on a special counsel against arbitrary dismissal, but he may be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” That last clause is a catchall that Trump could readily invoke.

    David A. Graham: The cases against Trump: A guide

    The regulations state that a special counsel may be fired “only by the personal action of the Attorney General,” but that would not stop Trump either. In the unlikely event that his handpicked attorney general were reluctant, he could fire the attorney general and keep on firing successors until he found one to do his bidding, as Richard Nixon did to get rid of Archibald Cox. Alternatively, Trump could claim—and probably prevail, if it came to a lawsuit—that the president is not bound by Justice Department regulations and can fire the special counsel himself.

    Smith’s departure would still leave Trump’s federal criminal charges intact, but no law would prevent Trump from ordering that they be dropped. He could do so even with a trial in progress, right up to the moment before a jury returned a verdict. No legal expert I talked with expressed any doubt that he could get away with this.

    Dismissing the charges would require the trial judges’ consent. But even if the judges were to object, Trump would almost certainly win on appeal: The Supreme Court is not likely to let a district judge decide whether or not the Justice Department has to prosecute a case.

    Trump will be able to avoid going to prison even if he has already been convicted of federal charges before he is sworn in. Here again, a trial judge is unlikely to order Trump imprisoned, even after sentencing, before he exhausts his appeals. And there is no plausible scenario in which that happens before Inauguration Day.

    At any time while Trump’s appeals are pending, his Justice Department may notify the appellate court that the prosecution no longer wishes to support his conviction. This is known as a confession of error on the government’s part; the effect, if the court grants the request, is to vacate a conviction. Under Attorney General Bill Barr, the Trump administration did something to similar effect in a false-statements case against former National Security Adviser Michael Flynn, moving to dismiss the charges after Flynn had pleaded guilty but before his sentencing. (Trump later pardoned Flynn.) According to the relevant rule of criminal procedure, dismissal during prosecution—including on appeal from a conviction—requires “leave of the court,” but it’s highly unlikely that an appellate court would refuse to grant such a motion to dismiss.

    Trump might also invoke the pardon power on his own behalf. He has already asserted, as far back as 2018, that “I have the absolute right to PARDON myself.” No president has ever tried this, and whether he can is a contested question among legal scholars. Experts who agree with Trump say the Constitution frames the pardon power as total but for one exception, implicitly blessing all other uses. (The exception is that the president may not pardon an impeachment.) Those who disagree include the Justice Department itself, through its Office of Legal Counsel, which concluded in 1974 that a self-pardon would be invalid under “the fundamental rule that no one may be a judge in his own case.”

    But the debate over self-pardons wouldn’t matter much to Trump in practice. If he pardoned himself of all criminal charges, there would be no one with standing to challenge the pardon in court—other than, perhaps, the Justice Department, which would be under Trump’s control.

    Unlike the federal charges, Trump’s state criminal cases—for alleged racketeering and election interference in Georgia and hush-money payments to a porn star in New York—would not fall under his authority as president. Even so, the presidency would very likely protect him for at least the duration of his second term.

    The Office of Legal Counsel, which makes authoritative interpretations of the law for the executive branch, has twice opined, in 1973 and again in 2000, that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That conclusion is binding for federal prosecutors, but state prosecutors are not obliged to follow it.

    No one knows what would happen if Fani Willis, the district attorney in Fulton County, Georgia, or Alvin Bragg, the DA in New York, decided to press ahead with their cases against Trump should he regain the presidency. Like so many outlandish questions pertaining to Trump, this one has no judicial precedent, because no sitting president has ever been charged with felony crimes. But legal scholars told me that Trump would have strong arguments, at least, to defer state criminal proceedings against him until he left the White House in 2029. By then, new prosecutors, with new priorities, may have replaced Willis and Bragg.

    Trump has named a long list of people as deserving of criminal charges, or execution. Among them are Joe Biden, Mark Milley, James Comey, Andrew McCabe, John Brennan, James Clapper, and Arthur Engoron, the judge in his New York civil fraud case.

    If he returns to office, Trump may not even have to order their prosecutions himself. He will be surrounded by allies who know what he wants. One likely DOJ appointee is Mike Davis, a Republican who has substantial government credentials: He was a law clerk for Supreme Court Justice Neil Gorsuch and chief counsel for nominations to Senator Charles Grassley when Grassley chaired the Judiciary Committee.

    If Davis were acting attorney general, he said on a right-wing YouTube show, he would “rain hell on Washington.” First, “we’re gonna fire a lot of people in the executive branch, in the deep state.” He would also “indict Joe Biden and Hunter Biden and James Biden and every other scumball, sleazeball Biden.” And “every January 6 defendant is gonna get a pardon.” Trump could not immediately appoint an outsider like Davis attorney general. But he could make him a Justice Department section chief, and then appoint him as acting attorney general after 90 days.

    Trump could also appoint—or direct his attorney general to appoint—any lawyer, at any time, as special counsel to the Justice Department, with the authority to bring charges and prosecute a case. Trump might not be able to convict his political enemies of spurious charges, but he could immiserate them with years of investigations and require them to run up millions of dollars in legal fees.

    Likewise, if he managed to place sufficiently zealous allies in the Office of Legal Counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions. Vice President Dick Cheney did that in the George W. Bush administration, inducing the OLC to issue opinions that authorized torture and warrantless domestic surveillance. Those opinions were later repudiated, but they guided policy for years. Trump’s history suggests that he might seek comparable legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of Congress, the Supreme Court, and the career civil service to say no.

    It occurred to me, as I interviewed government veterans and legal scholars, that they might be blinkered by their own expertise when they try to anticipate what Trump would do. All of the abuses they foresee are based on the ostensibly lawful powers of the president, even if they amount to gross ruptures of legal norms and boundaries. What transgressions could he commit, that is, within the law?

    But Trump himself isn’t thinking that way. On Truth Social, in December 2022, he posted that righting a wrong of sufficient “magnitude” (in this case, his fictitious claim of election fraud) “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

    The “take Care” clause of the Constitution calls for the president to see that laws are carried out faithfully. But what if a court rules against Trump and he simply refuses to comply? It’s not obvious who would—or could—enforce the ruling.

    This article appears in the January/February 2024 print edition with the headline “Trump Will Get Away With It.”

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    Barton Gellman

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