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Tag: the law

  • Will the Justice Department Even Try to Hold Epstein’s World Accountable?

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    The DoJ apparently has better things to do.
    Photo: Brendan Smialowski/AFP/Getty Images

    The United States Department of Justice is getting lapped by both Congress and the British authorities on follow-up investigations around the Epstein files. There’s no excuse for either. As British police arrest astonishingly powerful men for their dealings with Jeffrey Epstein and the U.S. House of Representatives tries to force titans of finance and politics to answer tough questions, our Justice Department lags far behind. It’s not even clear the DoJ is doing anything at all.

    Over in the U.K., law-enforcement officials have arrested former prince Andrew Mountbatten-Windsor and former ambassador to the U.S. Peter Mandelson. (Technically, both have been arrested but not yet formally charged, under a wrinkle in British legal procedure.) The putative defendants reportedly face potential charges of “misconduct in public office” for allegedly providing confidential government documents, including sensitive financial information about investment opportunities, to Epstein. (British authorities have accused neither man of participation in Epstein’s child sex-trafficking ring.)

    The British case is based in part on emails contained in the U.S. Justice Department’s own Epstein files, which were released less than a month ago. In a matter of weeks, British police investigated and arrested a former prince (Andrew) and a lord (Mandelson); have subjected both men, and others around them, to extensive questioning; and have conducted searches at properties associated with the subjects. Meanwhile, the most memorable step taken by our Justice Department since the release of the files was Deputy Attorney General Todd Blanche’s public-service announcement that “the American people need to understand that it isn’t a crime to party with Mr. Epstein.”

    The contrast extends to the tone at the top. King Charles — an actual monarch who wears a literal crown and carries a scepter to work — has told British investigators (in American parlance) to do what you gotta do. Or, in the proper King’s English: “What now follows is the full, fair and proper process by which this issue is investigated in the appropriate manner and by the appropriate authorities. In this, as I have said before, they have our full and wholehearted support and cooperation. Let me state clearly: The law must take its course.” Other heads of state should follow the king’s hands-off example — in a case against his own brother Andrew, no less.

    Our own president isn’t quite of the same mind. He has long dismissed the Epstein case as a hoax, though it’s unclear what exactly he claims is fake. And he recently urged the American public to just get over it already. “I think it’s time now for the country to maybe get onto something else, like health care,” Trump responded when asked about the Epstein matter.

    The DoJ has dutifully adopted Trump’s recommended approach: myopia blended with dissembling and a pinch of proactive excuse-making. As Blanche explained earlier this month, “There’s a lot of correspondence. There’s a lot of emails. There’s a lot of photographs. But that doesn’t allow us necessarily to prosecute somebody.” Not exactly the tenacious prosecutorial posture Blanche and I learned during our concurrent early days at the Southern District of New York. But hey, if our Justice Department isn’t going to make meaningful use of its own Epstein files, at least others will.

    And then there’s Congress, which has taken a flawed but aggressive approach to its Epstein investigation. While a bipartisan (but mostly Democratic) coalition of lawmakers forced passage of the Epstein Files Transparency Act, the Republican-led House Oversight Committee has pressed forward with a series of aggressive subpoenas for testimony. Yes, the subpoenas are largely for political show, and no, the House has not extracted any damning admissions — but it’s putting powerful people on the spot and making them face meaningful questioning under oath.

    Last week, billionaire Les Wexner — whose name the DoJ originally redacted from a document listing him as an unindicted “co-conspirator” but then unredacted after Representative Thomas Massie publicly called out the redaction — faced five hours of questioning from the Oversight Committee. Wexner, a close associate of Epstein’s, claimed no knowledge of his friend’s criminality. Wexner also denied allegations that he had sexually abused Virginia Giuffre, who testified in 2016 that, as a minor, she had been trafficked to have sex with Wexner multiple times. (She died by suicide in 2025.)

    The beauty of being a federal prosecutor is you don’t have to take a blanket denial as the final word, even from an arrogant billionaire. People disclaim wrongdoing all the time. Sometimes they’re telling the truth; other times they aren’t. So ordinarily, given the lead provided by Congress, DoJ prosecutors may take Wexner’s testimony and subject it to rigorous testing — talk to other witnesses, examine emails and texts, check out phone, financial, and travel records. Yet we’ve seen no indication of DoJ doing any such thing.

    This week, the Clintons take their turn at the Oversight Committee’s deposition table. After a prolonged back-and-forth during which they played themselves into a strategic corner, the former First Couple relented and agreed to testify under the looming threat of a contempt-of-Congress charge supported by some bipartisan votes.

    The Hillary Clinton subpoena was an obvious stretch by a congressional committee seeking to drag in a boldface name. She had nothing to do with Epstein; the best that Republican committee chair James Comer could do in defense of the subpoena was to note that — brace yourself — Clinton had hired Ghislaine Maxwell’s nephew to work on her 2008 presidential campaign and later at State. Yes, that’s the headliner. Clinton proceeded to tear the committee a new one with her opening statement on Thursday and, predictably, nothing of relevant substance came of her testimony.

    But Bill Clinton will have to squirm when he answers questions today. The committee surely will confront the former president — a frequent flier on Epstein’s private jet — with photographs that show him partying with Epstein (not a crime, remember, per the deputy AG); swimming in a pool with Maxwell and a female whose identity has been redacted, and reclining in a hot tub at night, hands behind his head, along with a female whose image has been blacked out.

    Meanwhile, we’ve seen no sign that the Justice Department has subpoenaed or otherwise sought to interview Wexner or Clinton or any other powerful Epstein associate — and certainly not the most powerful of all former Epstein pals, Trump himself. (Notably, even the aggressive House Oversight Committee hasn’t sought testimony from the current president.)

    The DoJ’s apparent inaction is particularly galling given that prosecutors hold far more potent investigative tools than Congress does. Prosecutors have the vast resources of the Justice Department and FBI at their disposal, while Congress must make do with minimal investigative staff. Prosecutors can obtain search warrants and wiretaps, while Congress can’t. And prosecutorial subpoenas generally can be broader in scope than congressional subpoenas and are enforced more rigorously by the courts.

    The Justice Department has been flailing for months now to justify its inactivity. Back in July 2025, top DoJ officials released a memo declaring that, after an exhaustive review of over 300 gigabytes of information, “We did not uncover evidence that could predicate an investigation against uncharged third parties.”

    Since then, the Justice Department has offered mixed messages (at best) about its ongoing investigative efforts. And while prosecutors could be moving stealthily behind the scenes, entirely undetectable to the public — I’m dubious, but it’s possible — we’ve seen zero public indication of actual in-the-field enforcement activity: no search warrants, no subpoenas, no interviews with key players, no arrests.

    Meanwhile, the British authorities and Congress forge ahead. It’s an embarrassing moment for our Justice Department’s leadership and a telling indictment of its own stubborn — and perhaps purposeful — indifference.


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    Elie Honig

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  • How Bill and Hillary Clinton Could Soon Become Criminal Defendants

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    Photo: Kenny Holston/Getty Images

    Republicans have thirsted for a criminal prosecution of a Clinton — Bill, Hillary, any Clinton will do — since the 1990s. Thirty years and several near-misses later, they may finally get their wish.

    The Clintons almost certainly aren’t going to prison, or even getting convicted. But with characteristic hubris, Bill and Hillary have walked themselves to the brink of federal charges by defying bipartisan congressional subpoenas on the Jeffrey Epstein investigation. And it’s a good bet that our current Justice Department — which apparently makes critical decisions by a sophisticated litmus test that asks, “Do we like you, or not?” — will pursue criminal contempt charges.

    The Clintons have, of course, had previous brushes with the law. We all remember the impeachment (and acquittal) of Bill Clinton over his false testimony about his relationship with Monica Lewinsky. But nearly lost to history is that Clinton barely avoided a federal indictment. On his final day in office in January 2001, Clinton agreed to a deal with prosecutors that spared him criminal charges for perjury and obstruction in exchange for a five-year suspension of his Arkansas law license, a $25,000 fine, and a public statement acknowledging that he had testified falsely. For my latest book, I asked Robert Ray, who replaced Ken Starr as Independent Prosecutor in late 1999, whether he would have indicted Clinton had he not agreed to the deal. Ray responded, “We were more than prepared to pull the trigger, if necessary.”

    A decade and a half later, Hillary Clinton narrowly dodged an indictment for her use of a private email server while secretary of state. Shortly before the 2016 election, FBI Director James Comey unilaterally announced that Clinton had been “extremely careless” but that the Justice Department would not pursue criminal charges; he then announced the case’s re-opening, eleven days before the election. Clinton was spared an indictment, but Comey’s public comments probably cost her the presidency.

    Yet for all the political drama and close prosecutorial calls, the Clintons could soon find themselves sitting at the defense table over a pair of comparatively mundane subpoenas.

    In August 2025, the House Oversight Committee — led by Republican James Comer, a serial over-promiser who habitually teases shocking revelations about prominent Democrats but never delivers — subpoenaed both Clintons for in-person testimony over their connections to Epstein and Ghislaine Maxwell. Both subpoenas were approved unanimously by all Republicans and Democrats on the Committee.

    Through their lawyers, the Clintons engaged in a monthslong pushback campaign. They argued to the Committee that the subpoenas were unrelated to any legitimate legislative purpose; were intended to harass and embarrass; and were overbroad and unduly burdensome. Indeed, it’s not clear Hillary would know anything of substance about the details of Epstein’s criminal enterprise. And while Bill Clinton would have a hellacious time explaining newly-revealed photographs of his nighttime frolic in a pool with Maxwell and an unidentified female, it’s difficult to articulate how testimony about his dealings with Epstein thirty years ago might somehow inform the drafting of anti-human-trafficking legislation now, as the Committee disingenuously claims.

    But the Committee holds broad subpoena power, and Comer was unswayed by these legal arguments. Comer declined the Clintons’ offer to provide written statements in lieu of live testimony and, ultimately, the parties reached no resolution.

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    Last week, the Clintons launched a self-important, last-ditch public relations campaign. In a letter signed personally by both Bill and Hillary (not their lawyers), the Clintons wrapped themselves in all manner of high-minded irrelevancy. They cited “[p]eople [who] have been seized from their homes by masked federal agents,” the mass pardons of January 6 rioters, Donald Trump’s targeting of universities and law firms, and the recent fatal shooting of Renee Good in Minneapolis. “Every person has to decide when they have seen or heard enough, and are ready to fight for this country, its principles, and its people, no matter the consequences,” the Clintons wrote with a self-important flourish. “For us, now is that time.” Yet the Clintons conspicuously failed to explain how their cited examples had anything to do with whether Bill Clinton should tell Congress what he knows about Jeffrey Epstein’s child sex trafficking network.

    Now the Clintons have worked themselves into a jam. They made a curious tactical decision not to file a lawsuit in advance to “quash” (invalidate, essentially) the subpoenas; while they still might formally challenge the subpoenas in court, it’s likely too late. When the designated days arrived last week for the Clintons to testify, they both failed to appear. At that point, the Committee had all it needed to pursue contempt: presumptively valid subpoenas (and no court order invalidating them); two dates for testimony; and no-shows by both Bill and Hillary.

    On Wednesday, the Oversight Committee voted to hold both Clintons in contempt of Congress. Notably, nine Democrats joined their Republican colleagues to vote for contempt for Bill Clinton, while three Democrats voted for contempt against Hillary. The matter will next move to the full House for a vote. If it passes — Republicans hold a slim majority, and several Democrats on the Committee voted for the subpoenas and contempt — then the matter will be formally referred to the Justice Department for potential prosecution.

    That’ll leave the final call to DOJ leadership. Both attorney general Pam Bondi and deputy attorney general Todd Blanche have made clear that political retribution is their highest aspiration. Witness, for example, the spectacularly failed payback prosecutions of James Comey and Letitia James, and the recent full-bore investigations of seemingly every prominent Democrat in Minnesota — but not the ICE officer who fatally shot Good.

    And consider that, during the Biden administration, lightning-rod Trump confidantes Peter Navarro and Steve Bannon were prosecuted, convicted, and imprisoned for four months each for contempt after they, too, defied Congressional subpoenas. Navarro and Bannon made less of an effort than the Clintons have to engage with the Committee, and were more defiant in general, but those are thin distinctions. At bottom, the Clintons did the same thing as the two Trump loyalists.

    If the Justice Department does indict the Clintons for contempt, don’t count on the cases getting anywhere. The cases would have to be charged in Washington D.C., which is overwhelmingly pro-Democratic and anti-Trump. Trump received less than 7 percent of the vote in D.C. in all three of his presidential runs; Bill Clinton topped 84 percent in both of his campaigns, and Hillary topped 90 percent in hers. A grand jury might well refuse to indict, even under the low “probable cause” standard, and it’s almost impossible to conceive of a D.C. trial jury unanimously voting to convict Bill or Hillary.

    But it’s not clear the Justice Department, or Comer, or Trump would care about the ultimate outcome. After more than three decades of futile yearning for a Clinton indictment, Republicans have never seen an opportunity quite like the one the Clintons have handed them now. The prospect of a Clinton criminal charge — even if unlikely to succeed — might just be too much to resist.


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    Elie Honig

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  • Fetty Wap Released From Prison Three Years Early

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    Photo: Manny Hernandez/Getty Images

    Rapper Fetty Wap, legal name Willie Junior Maxwell II, was released from prison on January 8, having served three of the six years of his sentence, reports Variety. He celebrated his return with a post on Instagram Stories, simply writing “Home” with no image attached. He later shared a longer statement with the outlet, outlining his goals for his life after incarceration. He states, “I want to thank my family, friends, and fans for the love, prayers, and continued support—it truly means everything to me. Right now, my focus is on giving back through my community initiatives and foundation, supporting at-risk young children by expanding access to education, early tech skills, and vision care for young kids and students so they can show up as their best selves. I’m committed to moving forward with purpose and making a meaningful impact where it matters most.”

    Fetty pleaded guilty in 2022 to one count of conspiracy to distribute and possess cocaine across state lines. He served his time in prison in Minnesota and was scheduled to be released later this year. Per his release, the rapper must follow strict guidelines for the next five years, such as no alcohol, drug testing, and federal supervision when opening bank accounts.

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    Alejandra Gularte

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  • Megan thee Stallion ‘Couldn’t Get Through’ Nicki Minaj’s Diss Track About Her

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    Photo: Savion Washington/FilmMagic

    Nicki Minaj’s diss track “Big Foot” did not get a full listen from Megan thee Stallion. During Megan’s testimony for her defamation trial against blogger Milagro Cooper, Cooper’s lawyer Jeremy McLymont asked the rapper about the song, to which Megan admitted that she had not listened to the entire thing, per court reporter Meghann Cuniff. “It was just so silly in the beginning. I couldn’t get through it,” Megan shared. “I just feel like it wasn’t something I wanted to keep listening to.” Minaj’s “Big Foot” diss track was a response to Megan’s song “Hiss,” in which she called out people who were talking about her shooting in their music and referenced Megan’s Law, seemingly to nod to Minaj’s husband’s legal issues. “So you have the ability to turn things off that you don’t want to listen to?” McLymont asked as a follow-up. “As it pertains to Nicki Minaj, yes,” Megan replied.

    It wasn’t the only song referenced in the testimony on November 24. Megan was then asked about Drake’s song, “Circo Loco,” more specifically about the line: “This bitch lie ‘bout gettin’ shots, but she still a stallion.” At the time, it was speculated that the line was about her as she seemingly replied to the track online, but in court, she refuted the reference. “If he was talking about me he could’ve been more direct, because I don’t have butt shots,” Megan stated.

    It is expected that there will be closing arguments for the trial on Tuesday, November 25. Megan thee Stallion, legal name Megan Pete, sued Milagro Cooper last year for defamation, accusing her of working with Tory Lanez on discrediting her during his own trial with Pete where he was convicted of shooting her in the foot.

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    Alejandra Gularte

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  • The Rise of the Anti-Trump Jury

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    Photo: Tom Brenner/The Washington Post via Getty Images

    When I was a brand new prosecutor at the Southern District of New York, the office’s elite mob prosecutors tried John Gotti Jr. three times within a year. All three times, the jury hung. Throughout the doomed prosecutorial trilogy, I’d go over to the courtroom and watch bits of the trial, enthralled at the cinematic spectacle: witnesses named Mikey Scars and Little Joey, bugged social clubs, beefs and sitdowns and hits gone good and bad.

    Prosecutors technically can re-try a case after a hung jury, but generally will stop after two tries, maybe three if there’s a compelling need. After the third Gotti trial resulted in a hung jury, the SNDY did the right thing and dismissed the indictment.

    Three years later, federal prosecutors in Florida decided to give it another go. They indicted Gotti again, a fourth time, on charges that incorporated much of the SDNY’s original case but added a few wrinkles. By that point, I had become a supervisor in the organized crime unit, and we wanted no part of it. Long story short: Gotti successfully moved the case back up to the SDNY, it landed in my lap, we tried him again, and the jury hung again. After the trial ended, we spoke with the jurors. About half of them wanted to convict, and the other half thought he was guilty but objected to the serial prosecutions of the Gambino Family boss. “You can’t try the same guy four times. That’s just not fair,” one juror said to me.

    This was my hard but vital lesson in jury nullification. Sometimes juries just tell prosecutors to screw off.

    Jury nullification has a potent but largely unspoken role in our criminal justice process. Judges do not instruct jurors that they can disregard the actual evidence and reject a case for political or emotional or other extraneous reasons. But who can stop a jury from doing just that, after all? They don’t attach a “Statement of Reasons” to a verdict form; they simply check “Guilty” or “Not Guilty,” no explanation sought or given. Defense lawyers at times try to give jurors a little wink-and-nod, but prosecutors and judges aggressively police any suggestion of nullification.

    Even though it’s not formally on the books, jury nullification has its role in our democracy. Just as the jury serves as a bulwark of liberty by determining whether a defendant’s guilt has been proved beyond a reasonable doubt, so too can a jury reject cases that might be technically valid but just too much bullshit, in the broader (non-technical) sense.

    This is what’s happening now to Justice Department prosecutors in Washington D.C. and elsewhere. The contagion will spread as the DOJ systematically abuses its discretion and power.

    Take, for example, Sean Dunn — the D.C. Subway sandwich thrower who was acquitted last week on charges of assaulting a federal officer. A grand jury had initially rejected felony charges, and prosecutors should’ve gotten the hint right there, given that grand juries apply a low burden of proof and typically will indict anything the prosecutor puts in front of them. (Not doing the ham sandwich joke — and it was salami, anyway.) Undeterred, prosecutors pressed on with a misdemeanor assault charge and took Dunn to trial. It didn’t go any better.

    This feels ridiculous to declare out loud but here goes: The sandwich thrower was obviously guilty. He intentionally and angrily threw an object at a uniformed federal officer, and hit him. The problem, of course, is that the charges don’t pass what we at the SDNY used to call the straight-face test: If you can’t make the case without cracking a smile, it’s not worth bringing.

    The D.C. jury apparently applied that test and came out with an acquittal, notwithstanding the prosecution’s valiant effort to paint the hurling of a footlong as a dangerous attack. The law enforcement agent testified that he “could feel it through his ballistic vest” and, in the tragic aftermath, he “could smell the onions and mustard” before finding an onion string hanging off his equipment, and a mustard stain on his shirt. Courtroom observers reportedly laughed, and the jury apparently did too with its verdict.

    This is a developing trend. In the weeks after President Donald Trump deployed the National Guard in Washington D.C., various grand juries rejected proposed federal cases involving silly or sympathetic conduct and petty (potential) charges. One case involved verbal threats made by an intellectually disabled man who had consumed seven alcoholic beverages and politely thanked the officers who arrested him. In California, grand jurors rejected proposed indictments of anti-ICE protesters, while trial juries have returned at least two acquittals. And in Virginia, a grand jury voted down one of the proposed charges against James Comey, and barely approved the other two. (If either the Comey or Letitia James cases reach trial, don’t be surprised if jurors engage in a bit of nullification, given the political tone of those prosecutions.)

    Part of the problem lies in the cases that the Justice Department has chosen to bring. But more fundamentally, this is about a loss of trust. Before the current Trump administration, it was exceedingly rare for federal judges to call out the truthfulness of DOJ prosecutors. Sure, judges routinely rebuke prosecutors and reject their arguments – I’ve been there – but typically impugn the prosecutor’s honesty only in the rarest circumstances.

    But in a string of federal cases, judges have openly chided the DOJ for its overreach, its failure to comply with at least the spirit of judicial orders, and its tendency to not quite fully tell the truth. One federal judge in Maryland lambasted prosecutors for their conduct on the Kilmar Abrego Garcia case: “You have taken the presumption of regularity and you’ve destroyed it in my view.” A judge in Washington D.C. flayed prosecutors for flouting his orders in an immigration case, characterizing the government’s position as, “We don’t care, we’ll do what we want.” Another D.C.-based judge noted pointedly, “Trust that has been earned over generations has been lost in weeks.” A federal judge in Illinois determined that the government’s portrayal of violence in Chicago was “simply untrue.”

    Trump presently faces little meaningful opposition to his agenda, and to his excesses. The Executive Branch has largely been purged of objectors (or even some who faithfully do their jobs). The Republican-controlled House and Senate provide no friction, while Democrats flail helplessly. And the Supreme Court generally (though not always) has gone Trump’s way on executive power.

    One of the few remaining checks comes from the most humble of sources – the everyday civilians who get that dreaded notice in the mail and wind up serving on grand juries and trial juries. Other than voting, it’s the most basic, populist exercise of American democracy. As long as the Justice Department continues to play politics and undermine its own credibility, don’t expect the nullification trend to stop. As I learned years ago on the Gotti case, sometimes the people have simply had enough.

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    Elie Honig

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  • The John Bolton Indictment Is Different

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    Photo: Jason Bergman/Bloomberg via Getty Images

    You ever get the sense Donald Trump and John Bolton might not like each other?

    Bolton, who served as National Security Advisor in the first Trump administration, has publicly called the President “a danger for the republic,” “stunningly uninformed,” and “unfit for office.” Trump, in turn, has branded Bolton “a sleazebag, actually,” “a very dumb person,” and the owner of a “stupid white moustache.” Upon publication of Bolton’s 2020 tell-all book, Trump responded, “I believe that he’s a criminal, and I believe, frankly, he should go to jail for that.”

    Trump might get his wish. While Bolton resides firmly on Trump’s enemies list, the indictment returned against him Thursday in federal district court in Maryland also bears substantial hallmarks of legitimacy. Trump surely takes retributive delight in Bolton’s prosecution, and has encouraged it in unsubtle ways. At the same time, the Bolton indictment appears to have genuine merit.

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    The indictment charges Bolton with eighteen federal crimes: eight related to transmitting sensitive national defense information and ten more for improperly retaining the same. The information at issue contained deadly serious government secrets. Bolton allegedly disclosed to outsiders information about “future attack” plans by foreign adversary groups; details of impending missile launches by foreign adversaries; information about sensitive intelligence sources; and assessments about leaders of foreign countries. Apparently, Bolton would type up notes based on information he learned as National Security Advisor. He’d then use his personal AOL account (which was eventually hacked by Iran) to email “diary-like entries” to two people – both relatives of his – who had no security clearances. Bolton also allegedly kept highly sensitive documents in his private home.

    There’s no doubt that Bolton, a onetime U.S. ambassador and National Security Advisor, was well aware of the rules governing handling of classified information. As the indictment notes, he said publicly in 2017, “If you’re conscious of the need to protect classified information you’ll remember what the rules are. If I had done at the State Department what Hillary Clinton did, I’d be wearing an orange jumpsuit now.” More recently, in 2025, Bolton railed against various public officials who committed the “original sin” (as Bolton then phrased it) of communicating about sensitive national security matters over the Signal app. The legal takeaway: A defense of ignorance or lack of intent won’t fly.

    Bolton, through his attorney, categorically denies wrongdoing.

    While we now have a clear sense of the prosecution’s theory of criminality, we don’t yet have a definitive read on the strength of the proof, or on Bolton’s defense. That’ll come in time, as the Justice Department turns over discovery to the defense, as the parties file motions in court, and eventually when the case goes to trial.

    But for now, we can look at a series of reliable collateral indicators that suggest this prosecution is legitimate. Consider, first, that the Justice Department’s instant investigation of Bolton reportedly escalated during the Biden administration. Trump surely was delighted to find it waiting for him when he took office, but – unlike the cases against James Comey and Letitia James – this one wasn’t originated by the President and his band of gleeful political enforcers.

    It also appears that the Bolton matter arose organically, and not because some official decided to root around for dirt buried in the mortgage files of a disfavored subject. According to public reporting and court documents filed in connection with search warrants conducted at Bolton’s home and office in August, the criminal inquiry began when U.S. intelligence officials learned that Bolton’s AOL email account had been hacked by a foreign government. The New York Times reported that those emails contained “sensitive information that Mr. Bolton, while still working in the first Trump administration, appeared to have sent to people close to him on an unclassified system.” (The indictment confirms this). The case arose, then, in the ordinary course of intelligence and law enforcement business, and not as a targeted inquiry aimed at Bolton.

    We also know that career, nonpolitical DOJ prosecutors at one point sought more time to review the evidence against Bolton, and now are on board with a prosecution. Again, note the contrast to the Comey and James indictments, which prompted a string of resignations by (and terminations of) dissenting prosecutorial professionals who saw no good faith basis to indict.

    Prosecutors are hardly alone in concluding that substantial evidence exists to establish that Bolton committed a crime. Before the Justice Department executed search warrants at Bolton’s Maryland home and Washington, D.C. office in August, prosecutors had to obtain authorization from two federal judges (one in each jurisdiction). We know, as a matter of law, that those judges concluded that prosecutors established at least probable cause that a crime had been committed and that the searches would likely uncover evidence of that crime. And we know that a grand jury heard the evidence and found probable cause to issue the indictment.

    The probable cause standard is, of course, lower than the “beyond a reasonable doubt” burden that prosecutors must ultimately satisfy at trial. But it’s not nothing, either. I can attest from experience that, while grand juries can be pushovers, judges do scrutinize search warrant applications fairly closely – particularly if the target is a high-profile former public official.

    Nor can Bolton claim differential treatment, given other semi-recent cases involving potential mishandling of classified information. After Hillary Clinton used a private email server as Secretary of State, she became the subject of a prolonged criminal investigation that culminated with a 2016 election-eve public announcement by the FBI director – the aforementioned Comey, as history remembers  – that she had been “extremely careless” but would not be indicted. When the public learned that Joe Biden kept classified documents at his private home and office, the Justice Department (under Biden himself) appointed a special counsel, Robert Hur, who investigated for over a year and concluded in early 2024 Biden had “willfully retained and disclosed classified materials” but, on balance, should not be charged. And when Trump took classified documents to Mar-A-Lago, he got indicted by DOJ special counsel Jack Smith. That case could’ve landed Trump in prison, had he not won the 2024 election. Bolton’s conduct, if proved, is more serious than all of those recent examples – especially given his systematic and intentional dissemination of the government’s most sensitive secrets to two outsiders.

    There’s no question Trump despises Bolton (and vice versa). And Trump plainly has been giddy at the prospect of Bolton’s indictment. But the Bolton case appears to differ in kind from the recent prosecutions of Comey and James. This one relates to far more serious conduct, and it arose under less dubious circumstances. Ultimately this is a problem Trump has created with his payback spree: It’s increasingly hard to tell the bogus cases against his political antagonists from the valid ones.

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    Elie Honig

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  • Horizon Sexual-Harassment Lawsuit Moves Forward

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    Photo: Warner Bros/Courtesy Everett Collection

    Kevin Costner denied claims of sexual harassment on the set of Horizon: An American Saga — Chapter 2 found in a lawsuit filed in May 27 by stunt performer Devyn LaBella against Costner. Now, several months later, Los Angeles judge Jon Takasugi denied Costner’s bid to have the case thrown out under California’s anti-SLAPP law on October 16. Only one of LaBella’s ten claims was removed, one that was related to the Bane Act; in the original filing, LaBella claimed that Costner “demanded” she was in the scene. “Plaintiff does not identify anything Costner, or any other individual, said to her that would constitute ‘threats, intimidation, or coercion’ of the kind contemplated by the Bane Act,” the judge explained in the published filing.

    Originally, in a declaration filed on August 19 in the Los Angeles Superior Court, Costner called the allegations “absolutely false” in response to LaBella’s claims that Costner directed an improvised rape scene without an intimacy coordinator or proper protocols. “Devyn’s description of this shot as a ‘violent simulated rape’ is absurd and sensationalistic. It is more than false. It is a bold-faced lie intended to create wide, publicly viewed shock value and damage the movies and me personally,” Costner says in the declaration. “Devyn’s claims against me are absolutely false, and it is deeply disappointing to me that a woman who worked on our production would claim that I or any other member of my production team would make one of our own feel uncomfortable, let alone suffer the ‘nightmare’ she has invented. My belief is that Devyn’s claims were designed, through the use of false statements and sensationalistic language, to damage my reputation.”

    Horizon intimacy coordinator Celeste Chaney has supported LaBella’s claims that the scene “was unexpectedly sprung on the actors and stunt professionals” in an amended complaint on June 18. Per Chaney, Ella Hunt was called in to film a more graphic scene than planned but Hunt did not want to participate without an intimacy coordinator. “Due to a lack of communication and the lack of an intimacy coordinator on set (a contractual obligation),” Chaney wrote, “Ella Hunt was not prepared to give this performance. Visibly upset, she left set. It was at this time that Devyn Labella, Juliette’s stunt double, who was also not briefed or prepared for the scene, was asked to stand in to ‘line up the shot.’”

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    Alejandra Gularte

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  • Trump Might Get to Send the National Guard Anywhere He Wants

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    Photo: Jamie Kelter Davis/The New York Times/Redux

    What happens if the president believes the streets are on fire and the National Guard must roll out – but a federal judge disagrees? What if reality itself disagrees with the commander-in-chief? Who wins out?

    These questions ultimately will determine the legality of Donald Trump’s deployment of National Guard (and potentially other military assets) in California, Oregon, Illinois, and likely beyond. It’s not so much about whether Trump is correct in his assessment of danger. It’s about who gets to decide.

    The law Trump has cited to activate National Guard troops is not the Insurrection Act – though he has openly contemplated it – but rather an emergency statute titled Section 12406. (Not every statute gets a memorably ominous moniker.) That law permits the president to deploy the Guard, even over the objection of a state governor, in cases of rebellion or foreign invasion, or when “the President is unable with the regular forces to execute the laws of the United States.”

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    If you’re wondering what exactly that third, catch-all category actually means, then you’ve already spotted the key issue. Can the president send in the troops if, for example, the feds could use a few more people to help make drug arrests – which would essentially always be the case? Or would the law require a cataclysmic emergency like a natural disaster or a city-consuming riot? The line probably falls somewhere between those two extremes – but where?

    Trump’s lawyers have identified this ambiguity and exploited it, to mixed success thus far in the courts. When the President deployed the National Guard in California during anti-ICE protests in June, he lost the first round when a federal district court decided Trump was simply wrong, and no such emergency conditions existed. But the (decidedly liberal) Ninth Circuit Court of Appeals reversed that ruling – not so much because Trump was right, but rather because, as president, his determination about the necessity of activating the National Guard was due “a highly deferential standard of review.” The court of appeals found some evidence – not a lot, but enough – that federal property and personnel had been attacked. The Ninth Circuit rejected Trump’s argument that his decision to deploy the National Guard was entirely unreviewable by the courts. But, the court of appeals found, it’s not up to us as judges to overrule the president merely if we disagree with him; we can do that only if he’s patently wrong.

    This week, a Trump-appointed federal judge, Karin Immergut, blocked Trump’s activation of the National Guard in Oregon – notwithstanding the President’s hyperbolic public assertion that “Portland is burning to the ground.” When Trump tried a sneaky end-run hours later by sending National Guard troops from another state to Oregon, the judge smacked that down too. (Predictably, Trump lashed out at his own nominee who, he proclaimed, “ought to be ashamed of herself.”) Judge Immergut adopted the Ninth Circuit’s “highly deferential” standard – giving the president plenty of leeway, but not complete autonomy – and concluded that his determination that National Guard troops were necessary to enforce federal law in Oregon was vastly overstated. But on Thursday, the Ninth Circuit heard the Trump administration’s appeal and reportedly appeared disinclined to block the President’s deployment.

    Late Thursday, a federal judge in Illinois temporarily blocked Trump’s move to activate National Guard troops in the Chicago area. That case surely is headed up to the federal appeals court in short order; expect Trump to argue that it’s his decision, not the court’s, whether emergency conditions necessitate National Guard deployment.

    Eventually one or more of these cases will reach the Supreme Court. That could happen within weeks, given the dizzying pace of the Court’s emergency docket, through which it issues temporary orders that often effectively decide the issue permanently.

    When a case gets there, there’s no way this Supreme Court adopts a rule that allows federal judges to overturn the president merely if they disagree; it’s a certainty the Court will give the president some level of deference. So we’re looking at two realistic outcomes. First, the Supreme Court might find that the “highly deferential” standard is the right one. In that instance, we’ll have an ongoing nationwide game of legal whack–a-mole: the President activates the National Guard in a given state; that state files a lawsuit challenging the deployment in the local federal district court; and then the case makes its way through the appeals courts, potentially right back to the Supreme Court itself. Now multiply that by however many states Trump singles out, and factor in the possibility of  different results in different states. Witness, for example, California, where Trump was allowed to send in the troops, versus Oregon and Illinois, where he has been blocked (for now). It’ll create chaos in the courts and on the ground.

    That brings us to the second potential outcome: the Supreme Court might rule that the federal courts have no role whatsoever in reviewing the President’s activation of the National Guard under Section 12406. Whatever the president says, goes. It sounds drastic, but it’s in play.

    Consider that in the context of the Insurrection Act, the Court ruled (in 1827) that “the authority to decide whether the exigency has arisen belongs exclusively to the President, and … his decision is conclusive upon all other persons.” More recent decisions have chipped away at the margins of this holding, but the fact remains, nearly two hundred years later, that the President has complete or near-complete authority to invoke the Insurrection Act – which is similar, though not identical, to Section 12406, the law at play here.

    Of course, this current Supreme Court has defined itself largely by its expansive view of executive power. The Court already has granted the president shockingly broad criminal immunity. The justices have allowed the President to fire federal officials notwithstanding Congressional statutes that purport to limit that power, and to disregard bureaucratic requirements imposed on the president by Executive Branch bureaucracy. And the current Court has empowered the president to unilaterally withhold billions of dollars in federal funding that had already been allocated by Congress.

    Consider, finally, the practicalities. If the Supreme Court gives judges any power to review the president’s deployment of the National Guard – even under some broadly deferential standard – then we’ll wind up with a cascading series of legal disputes playing out in federal courts across the country, with uncertain and potentially inconsistent outcomes. But if the Supreme Court rules that emergency deployments of the National Guard are entirely up to the president, and unreviewable by the courts, then its game over. No more lawsuits, no more confusion, no more emergency applications to the Court itself.

    I don’t buy that this Supreme Court is in the bag for Trump, or that the conservative justices are enamored with him as a president or as a human being. I do believe that this Court majority has been raised on expansive views of executive authority, and will seek out opportunities to make Federalist Society-inspired think pieces into actual law. You’ll never go broke betting on the justices to take a definitive off-ramp and put an end to a pesky, lingering litigation conundrum – especially if that outcome happens to bolster presidential power.

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    Elie Honig

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  • Trump Is Not Entitled to a National Police Force

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    Photo-Illustration: Intelligencer; Photos: Getty

    In constitutional law, animus is defined as ill will toward a group of people for discriminatory, illegitimate reasons — because they’re Black, women, born in another country, queer, or belong to an unpopular group. One through-line in Donald Trump’s style of governance over the years has been animus. His Muslim travel ban, his decision to expel transgender servicemembers from the military, and his administration’s crackdown on so-called gender ideology and diversity, equity, and inclusion initiatives, to name a few areas, are all expressions of animus toward people, groups, even ideas, which the law can and should protect but the president has seen fit to crush or banish.

    The animus in Trump’s decision to federalize the Illinois National Guard, like his decision to federalize the California National Guard and the Oregon National Guard, is different in kind. These decisions are driven by his hostility toward major U.S. cities led by Democrats, where his policies and politics aren’t welcome. Under the pretext of desiring to maintain law and order, the president is targeting states that are separate sovereigns because their governors, elected leaders, and residents simply reject the idea that federal agents should be allowed to roam the streets like an occupying force, snatching and disappearing their own — workers, bystanders, and others simply going about their lives or looking a certain way. Might a judge find this type of animus violates the Constitution?

    “The federalization and deployment of the National Guard in the Chicago area is the direct result of President Trump’s longstanding and well-documented animus toward Illinois and Chicago,” reads a legal memorandum in support of the Illinois lawsuit now pending before a federal judge challenging the legality of this latest gambit. As the state’s federal complaint documents, Trump’s personal animus and his administration’s actions against Illinois and Chicago run deep. In a number of cases in recent months, judges have begun to take notice, dismissing or striking down federal attempts to single out, defund, or invalidate programs and policies Illinois has adopted to advance its own vision of public safety and the general welfare of its residents.

    Things took a darker turn last week, when the president made his animus plain in front of an audience of U.S. military leaders, telling them that Chicago and other cities must serve as “training grounds for our military” in what he called a “war from within.” In all these bellicose actions and musings, including Trump’s suggestion on Wednesday that Illinois governor J.B. Pritzker and Chicago mayor Brandon Johnson should be imprisoned, the Trump administration is waging a war with the very idea of Democratic, and democratic, governance of any kind. Troops or no troops on the ground, if you live anywhere that didn’t vote for Trump or where voters proactively support politicians and policies that oppose him, your comeuppance is near. “We’re going to straighten them out one by one,” said the commander in chief at his gathering of generals.

    At the heart of this open clash between the federal government and a state government is the Tenth Amendment, which gives states their own police power over local law enforcement — to the exclusion of the president’s own, which remains confined to federal agencies with limited law-enforcement authority, such as Immigration and Customs Enforcement. Federalizing other states’ National Guards is, in effect, a constitutional end run to establishing, as a judge in California put it last month, “a national police force with the President as its chief” — not a thing in the United States.

    U.S. District Judge Karin Immergut, the Trump appointee in Oregon who quickly blocked his attempt to federalize the guard there and later blocked Texas’s and California’s troops from setting foot in the state, echoed these principles when she explained that the legal issues implicated in these unlawful deployments are foundational to our constitutional democracy. Among these issues is the allocation of power between the federal government and Oregon’s “right,” under the Tenth Amendment, to control its own National Guard. Doing away with this arrangement, she suggested, would be akin to doing away with these United States as we know them. “This encroachment on Oregon’s police power leaves an indelible mark on Oregon’s ‘sovereignty under the Constitution’ … which cannot be remedied by a ‘legal remedy, such as an award of damages,’” she wrote.

    Judge Immergut’s ruling, which the Justice Department is appealing and the U.S. Court of Appeals for the Ninth Circuit will review on Thursday, should be mandatory reading for its clear-eyed assessment of how a judge, closest to the facts in her own backyard, should be ready and willing to see right through Trump’s animus and second-guess his pretext. Under recent case law from the Ninth Circuit created during Trump’s deployment of the California National Guard in Los Angeles, a judge must afford “a great level of deference” to a president calling forth the guard under federal law, such as when he determines he “is unable with the regular forces to execute the laws of the United States.” Yet great deference under the law doesn’t mean being blind to the reality in Portland, which is a “war zone” only in Trump’s imagination. As Immergut observed, “The President’s determination was simply untethered to the facts.” (The Ninth Circuit briefly paused part of her ruling while the judges there consider it; the Oregon guard remains federalized but not deployed.)

    With the benefit of Immergut’s reasoning and the president’s own show of bad faith, Illinois will make its case to a federal judge on Thursday that the federalization of the Illinois guard, and what Pritzker has called an “invasion” from the Texas National Guard, violates federal law and the Tenth Amendment. Key to the state’s case is the president’s trail of animus and the absence of any evidence to support a determination that he cannot enforce the law. Lawyers for the state wrote in a legal filing that even if the court considers other reasons given by Trump, such as Chicago being a “hotbed of crime,” they do not satisfy the law that grants Trump the authority to nationalize the guard only if he finds there’s a rebellion or an invasion or he is disempowered from enforcing the law “with the regular forces.”

    Indeed, the pair of orders Defense secretary Pete Hegseth sent to Illinois and Texas calling their guards to federal service make only passing reference to the need to provide support for ICE functions and protect federal property, referring to “the credible threat of continued violence” but not much else. Illinois contends that’s not enough to trigger the statute: “Protests, civil disobedience, or sporadic unlawful acts by a handful of individuals within an otherwise peaceful crowd do not come remotely close to that threshold.” (In a telling aside in the Portland case, Immergut suggested that mobilizing the guard in Los Angeles “inflamed protests, spawned unrest at new locations, and required additional resources from the California Highway Patrol.” As in, the president compounded the crisis that was of his own making.)

    But perhaps there’s an even simpler way to keep a national police force out of the president’s reach. Mark Graber, a legal historian at the University of Maryland who has written extensively about the relationship between the president and state militias, filed amicus briefs in the Portland and Los Angeles cases explaining that the law allowing for the federalization of the National Guard may be invoked “only in response to a war or warlike conditions” and that judges are perfectly capable of assessing these “objective” criteria. As Graber sees it, Congress wrote the law to “curtail presidential discretion” and thus judges should give zero deference to a president wishing to deploy the military domestically. And as I read Graber’s survey of the law and the history, things have to get quite dire, down to the point of anarchy, for a state deployment to be lawful. “The upshot is this: history, judicial precedent, and our founding principles teach that a president cannot demonstrate an inability to execute the laws,” Graber writes, “unless federal courts and the civil power are inoperative.”

    Should the judge in Illinois embrace that analysis, which goes beyond what the Ninth Circuit concluded for Los Angeles and Immergut did for Portland, then our federalist system may yet survive the president’s naked desire to upend it. And his animus toward Democratic and democratic governance in cities and states that don’t fall in line, in support of a national police force that the Constitution and laws don’t allow, may yet be reduced to Truth Social rants with no force of law.

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    Cristian Farias

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  • An Epic Courtroom Mismatch Is Looming in the Comey Case

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    Photo: Al Drago/Getty Images

    There’s plenty we still don’t know about the Justice Department’s case against James Comey, but this much is certain: The showdown between Lindsay Halligan (for the United States) and Patrick Fitzgerald (for the defense) presents an epic mismatch of courtroom talent.

    If the case reaches trial — and it might not, given how President Trump has teed up Comey’s selective prosecution motion with his serial public rants — watch for Fitzgerald to mop the floor with Trump’s unqualified loyalist turned prosecutor. Fitzgerald is as good as it gets, a legendary trial tactician who has repeatedly won jury verdicts in the highest-stakes courtroom showdowns of the past 30 years. And Halligan — I’ll try to be nice here — is a charlatan. (I tried.)

    If the Comey case reaches trial, Fitzgerald likely will find himself squaring off against Halligan — who, as you read this, is working her tenth day as a prosecutor. (She started last Monday.) The New York Times reported that Halligan made her first-ever court appearance on the Comey matter. She originally went to the wrong courtroom and, when she did find the right place, stood on the wrong side of the judge. Halligan appeared baffled by basic paperwork relating to the indictment, eventually confusing the magistrate judge by presenting two different indictments. I don’t fault Halligan at all; I was just as clueless at the end of my second week on the job.

    How, then, did Halligan — who was primarily an insurance lawyer — get the prestigious post as U.S. attorney for the Eastern District of Virginia? Two ways. First, the original prosecutor, Erik Siebert — an experienced DoJ professional who leans conservative and had been put in place by Trump himself — resigned under pressure because he didn’t firmly believe the evidence supported charges against Comey and others on Trump’s enemies list. And, second, Halligan is an unflinching Trump loyalist. She joined the president’s private legal team in 2022 and later oversaw the Trump White House’s review of Smithsonian Museum exhibits to eradicate “corrosive ideology.” Federal prosecutors come to the job with a range of prior experience, but I’m not sure I’ve ever seen a U.S. attorney who has done so little of substance before landing the top job.

    Fitzgerald was a prosecutorial prodigy, beginning his career at age 27 in the U.S. Attorney’s Office for the Southern District of New York in 1988. He spent the next 13 years taking down mobsters and international terrorists, including the “Blind Sheikh” Omar Abdel Rahman and others who bombed the World Trade Center in 1993, and associates of Osama bin Laden who bombed two U.S. embassies in Africa in 1998. In 2001, when a U.S. senator from Illinois needed a new U.S. attorney for the Chicago area and asked FBI director Louis Freeh to identify the best prosecutor in the country, Freeh responded, “Patrick Fitzgerald.” President George W. Bush then nominated Fitzgerald as the U.S. attorney for the Northern District of Illinois, and the Senate confirmed him unanimously.

    Fitzgerald became a national presence in December 2003, when he was named special counsel to investigate the Bush administration’s leak of the identity of CIA operative Valerie Plame. That appointment was made by the deputy attorney general of the United States — Jim Comey, who had grown up as an SDNY prosecutor alongside Fitzgerald. Upon the appointment, NBC News ran a piece titled “Pat Fitzgerald: The Steely-Eyed Sleuth,” which cast him as “a prosecutor with no discernible political bent” who “blended toughness and flexibility,” worked exhausting hours, remembered every detail, and was “enormously fair.” Even as Fitzgerald probed the Bush administration, the president publicly praised him as “a very thorough person” who had “conducted his investigation in a dignified way.”

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    I know dozens of people who have worked with Fitzgerald — I started at the SDNY three years after he left — and have heard nothing but raves. In an interview for my new book, Peter Zeidenberg, who worked on the prosecution team in the Plame case, told me Fitzgerald first met with the staff (which had already been investigating the case for about a month) on a Friday; by Monday, Zeidenberg recalled, “he knew as much about the case as anyone else.” Zeidenberg summed up: “All the accolades about Pat are accurate and deserved.” (Except, perhaps, one: In 2005, Fitzgerald was named to People magazine’s “Sexiest Men Alive” list, losing out on the top slot to Matthew McConaughey. Fitzgerald was ribbed by colleagues for years over his inclusion on the list, and he publicly groaned with embarrassment about the so-called honor.)

    Fitzgerald has inspired awe with his courtroom work. During closing arguments in the blockbuster 2007 false-statements trial of Lewis “Scooter” Libby (which arose from the Plame case), the gifted defense lawyer Ted Wells ended his closing argument with a dramatic flourish: “Don’t sacrifice Scooter Libby … I give him to you. Give him back to me. Just give him back,” Wells implored the jury, choking back a sob. Fitzgerald hopped to his feet and delivered a pointed rebuttal that ended with his own variation on Wells’s dramatic conclusion: “He stole the truth from the judicial system. Give truth back.” Zeidenberg told me Fitzgerald improvised the line, which mirrored and rebutted Wells’s final plea to the jury. Despite the convoluted nature of the false-statements charges and the opposition of one of the nation’s finest defense lawyers in Wells, Fitzgerald won a conviction. (Libby’s sentence was later commuted by Bush, and Trump issued a full pardon in 2018.)

    I can attest from my own experience that the quality of courtroom lawyering absolutely can swing the outcome of criminal trials. At times, I won convictions where I thought that better defense lawyering might have given the jury pause. And I lost a couple cases in part because of remarkable performances by defense counsel. In some cases, the evidence is so strong that any semi-competent federal prosecutor can obtain a conviction (though it’s not yet clear whether Halligan qualifies on that measure). In others, where the evidence is short of overwhelming, a verdict can go either way, and courtroom presentation can make all the difference.

    And the Comey prosecution looks shaky at best. Halligan reportedly convinced only 14 of 23 grand jurors to find probable cause for the two counts that comprise the Comey indictment. (The grand jury rejected a third count altogether.) If Halligan could barely win a majority of grand jurors’ votes with a low burden of proof (probable cause) and no defense counsel present — good luck proving the case to a unanimous jury, beyond a reasonable doubt, with Fitzgerald bringing his decades of courtroom experience to bear on the defense side.

    Fitzgerald retired from the active practice of law when he left a large national law firm in 2023. He has spent the past few years living quietly out of the spotlight. But now he returns dramatically to defend his close friend in a case with unimaginably high stakes — for Comey, the Justice Department, and the president alike. And the prosecutor across the courtroom is nowhere near up to the task.

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    Elie Honig

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  • John Roberts Wrote Trump a Permission Slip to Indict Comey

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    Photo: Haiyun Jiang/The New York Times/Redux

    The criminal indictment against former FBI director James Comey will be parsed on the law, the facts, and the question of whether the Trump administration’s decision to indict a person on Donald Trump’s enemies’ list in the first place amounted to a vindictive and selective prosecution. All of those analyses have their place, and Comey has already indicated that he has “great confidence in the federal judicial system” such that he is willing to proceed with a public trial to clear his name.

    Yet the reason he finds himself in the president’s crosshairs, apart from the subservience of a newly appointed U.S. attorney in Virginia with no experience in criminal law, and an attorney general who can’t even bring herself to refer to Comey by name on the day of his indictment, can be traced to the federal judicial system itself. It is the Supreme Court of the United States, led by a chief justice who has done more than most to empower a presidency unbound by law, that is responsible for giving Trump the unlimited freedom to lean on the Justice Department to prosecute anyone he wants, even when the only evidence to predicate those investigations and prosecutions is the president’s feelings and not much else.

    Yesterday was James Comey’s turn. Tomorrow may be Letitia James. Kilmar Ábrego García, though not formally a public enemy of the president, is now the subject of a political prosecution where the White House, the Justice Department, and the Department of Homeland Security are all acting in concert to demonize, criminalize, and ultimately deport him to a country not his own.

    In all of these cases, sooner or later, the Trump administration can be expected to seek refuge in the work of Chief Justice John Roberts, whose maximalist language in Trump v. United States not only granted Trump a shield from criminal investigation and prosecution, but also handed him a sword to order criminal investigations and prosecutions—even sham ones. The so-called immunity decision, in which Roberts led his conservative supermajority to endow Trump with broad immunity over his official acts leading up to the insurrection at the Capitol, is about far more than presidential impunity over a failed plot to remain in power. The ruling, in ways that are irrelevant to its bottom line, contains breathtaking language that categorically places the president in direct control of the attorney general, her Justice Department, and any other federal prosecutor down the chain of command.

    Re-reading the decision, which was supposed to be fashioned as “a rule for the ages,” shows how ill-considered the rule was to start. In the part of the decree where Roberts analyzes special counsel Jack Smith’s indictment accusing Trump of subverting “the Justice Department’s power and authority to convince certain States” to engage in a fake electors scheme—by all accounts, an illegitimate use of the department’s functions—the chief justice spends little time in the scheme itself. (As a result, Smith was forced to drop these allegations from his case.) Instead, he offers a rose-colored view of a president’s authority over the Executive branch, how he “may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials,” and how even threatening to fire an acting attorney general for disobeying unlawful orders falls within the “conclusive and preclusive” authority of the nation’s chief executive. That is, neither courts nor Congress may second guess any of these actions with proceedings or laws authorizing a criminal prosecution.

    Not even investigations that are considered a “sham,” Roberts writes, “divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” As a result, he adds, “the President cannot be prosecuted for conduct within his exclusive constitutional authority.”

    Absolute immunity over that course of conduct is bad enough. Yet the Trump administration, at this very moment, is running with this and related language in Roberts’ opinion to justify other presidential overreach in the lower courts and before the Supreme Court itself. The highest-profile example is ripe for a decision: Any moment now, the justices are expected to rule on an emergency request from the Justice Department to green-light the president’s chaotic and pretextual attempt to fire Lisa Cook from the board of governors of the Federal Reserve—the first such attempt to fire a sitting governor in the board’s 111-year history. A who’s who of former Federal Reserve members, Treasury secretaries, economic advisers, and other high-ranking Republican appointees have warned the Supreme Court not to play ball—unless the justices want to invite chaos and destabilize the nation’s economy and people’s retirement portfolios.

    Solicitor General D. John Sauer—as it happens, the former personal lawyer who argued and won the immunity case last year—leans hard on the ruling he helped generate, and he does so in a way that would shut the door to any judge ever scrutinizing a president’s firing decision. According to Trump v. United States, he writes, Article II of the Constitution “creates ‘an energetic, independent Executive’”—not a president who is “subservient” or who “must follow judicially invented procedures even when exercising core executive power.” Again quoting from the Roberts opinion, Sauer adds that a “president’s removal power is ‘conclusive and preclusive,’ meaning that exercises of that power ‘may not be regulated by Congress or reviewed by the courts.’”

    Then comes this kicker, entirely lifted from the immunity decision: “Any inquiry ‘into the President’s motives’ ‘would risk exposing’ the President’s actions ‘to judicial examination on the mere allegation of improper purpose’—an outcome that would ‘seriously cripple the proper and effective administration of public affairs.’”

    Which is Sauer’s lawyerly way of saying: Thank you, John Roberts. Your own lofty vision of presidential authority prevents the judicial branch from even second-guessing a president ordering the Justice Department to prosecute a former FBI director, simply because he can. Under this vision, judges cannot assess the legality of firing a high-ranking official whom the law insulates from being dismissed on a whim, or as a result of a questionable criminal referral from a loyalist. And there’s no judicial recourse against the president if the Justice Department decides, as reported on Thursday, to deputize more than a half dozen U.S. attorney’s offices to investigate and possibly charge the George Soros-funded Open Society Foundations. And other than fighting the charges in court, the same goes for the as-yet-uncharged Letitia James.

    The list of culprits for destroying the Justice Department and the politically driven prosecutions of the second Trump administration must include John Roberts, their chief enabler. And unless and until the Supreme Court reverses the damage done, the judiciary that Comey believes in will have to work hard to abide by the law as it stands—going through the motions of an arraignment, a trial, appeals, and other proceedings that should’ve never been set in motion. Worse still, judges will have to pretend this abuse of official power, which we’re told the Constitution doesn’t allow them to question, is nothing more than a president taking care that the laws are being faithfully executed.


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    Cristian Farias

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  • The Meaning of the Comey Indictment

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    The Trump administration has crossed a line. The wall of independence between the Justice Department and the White House, which has long stood to protect DoJ’s fearsome power to deprive individuals of their liberty, has been reduced to rubble. Politics have invaded and infected prosecution. And the resulting indictment is confounding, at best.

    I’m no fan of James Comey. I’ve publicly criticized his habitual abuse of power and process, his relentless self-aggrandizement, and his breathtaking hubris. But he does not deserve this. Nobody does.

    Let’s start with the indictment itself, and whatever little can be discerned from it. We’ve got two counts — the grand jury reportedly rejected a third — both based on Comey’s testimony to the Senate in September 2020. Count one alleges that Comey testified falsely and count two charges that, by giving that false testimony, he obstructed a congressional proceeding. According to the indictment, Comey testified that he had not authorized anyone else at the FBI to leak information to the media, when in fact he had done so.

    And that … is it. The whole charging document runs less than two full pages, and the core allegations take up just a couple dozen words. The very purpose of an indictment is to notify a defendant of the charges against him, with reasonable specificity. So much for that quaint notion.

    While there’s much we still don’t know, the symptoms of this case’s infirmity have long been apparent. Prosecutors and investigators have long scrutinized Comey’s conduct around the 2016 election. The Justice Department’s nonpartisan inspector general did an exhaustive report, the out-for-blood “investigate the investigators” special counsel, John Durham, wasted four years digging for dirt on Trump’s inquisitors. Yet nobody has sought to charge Comey until now, just days before expiration of the five-year statute of limitations. The DoJ inspector general was remarkably thorough, and Durham — Trump’s ersatz, erstwhile tool of political vengeance — certainly didn’t lack motivation. Did they all miss it? Did something new emerge just now, at the very last moment before expiration of the statute of limitations, nearly a decade after the underlying events about which Comey testified?

    It’s telling that various experienced, conservative, pro-Trump prosecutors reportedly expressed doubts about the case. A team of career prosecutors on the case reportedly wrote a memo concluding that charges were unwarranted. Trump’s own U.S. Attorney nominee for the Eastern District of Virginia, the veteran federal prosecutor Erik Siebert, refused to charge and resigned under pressure from Trump. The president replaced him with Lindsay Halligan, an unqualified loyalist who has never previously worked as a prosecutor; she pulled the trigger on a precipitous indictment of Comey during her fourth day on the job. Even if she were politically neutral, Halligan would have nowhere near the prosecutorial expertise necessary to make a decision on what looks to be a fringy, complicated charge. That’s not a knock on Halligan’s ability or intellect — I’d have said the same of myself during my own first week on the job many years ago.

    Even Deputy Attorney General Todd Blanche reportedly voiced reservations about the case with the Justice Department. Blanche is a deeply experienced federal prosecutor who has now shown himself to be an aggressive pro-Trump partisan beyond the point of embarrassment. He angrily proclaimed just last week that a group of women who heckled Trump at a seafood restaurant could and should be charged with federal racketeering crimes. (“Racketeering,” by the way, does not mean “making a racket while dining.”)

    Watch for Comey’s team to move quickly to dismiss the indictment based on a claim of selective prosecution. They’ll argue, in essence, that he was singled out for prosecution for political or other improper purposes. Defendants often raise this claim but rarely win. The problem is that it’s typically difficult or impossible to prove that the government had some impermissible motive; conversations about targeting tend to happen in hushed tones behind closed doors, if at all.

    But that’s not how Donald Trump operates. For this president, everything is broadcast to the world, live and unfiltered, over social media. Accordingly, Trump already has given Comey exhibit A in his forthcoming motion to dismiss: a September 20 Truth Social post in which the president openly exhorted his attorney general (“Pam;,” the missive opens) to indict Comey and other favorite targets for political retribution. “What about Comey, Adam ‘Shifty’ Schiff, Leticia???” the president wrote. “They’re all guilty as hell, but nothing is going to be done.” After some stream-of-consciousness rambling, Trump ended his diatribe with an instruction to his Justice Department: “JUSTICE MUST BE SERVED, NOW!!! President DJT.” It’s difficult to imagine a more straightforward case of selective prosecution. Don’t be surprised if a judge throws this mess out before it ever reaches a jury.

    This prosecution marks a dark turn. During his first term, Trump was full of public bluster, openly pining for criminal prosecutions of Hillary Clinton, Barack Obama, Joe Biden, John Kerry, and, yes, Jim Comey. But it was all chatter, back then; DoJ and other leaders mostly ignored the president’s rants and waited for the tempest to pass.

    But now the fanciful talk has become action, and Comey — once a revered federal prosecutor who took down international terrorists and New York gangsters — will find himself sitting at a defendant’s table and facing the prospect of his own imprisonment. Unlikely as it seems that Comey gets convicted and sentenced to prison, nobody can afford to be nonchalant about a federal indictment filed by prosecutors representing the United States of America.

    It’s plain that this is just the start. Comey’s indictment bodes poorly for Letitia James and potentially Senator Adam Schiff and Federal Reserve governor Lisa Cook, and anyone else who might have crossed the president and incurred his wrath. If charged, they might all beat their cases eventually. But there’s little cost to Trump or his administration beyond mildly bruised egos, if that.

    Trump immediately took to social media to crow about the indictment of Comey. The endorphin rush won’t last, but Trump might not care. Ultimately, this is not about achieving just results. It’s about payback.

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    Elie Honig

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  • Trump and His Many, Many Emergencies

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    Trump invoked a national emergency to enact tariffs.
    Photo: Brendan Smialowski/AFP/Getty Images

    There’s little that President Donald Trump loves more than an emergency — or, more precisely, declaring an emergency. A formal pronouncement that we are under attack — by immigrants, by protesters, by economic conditions, by whatever a paranoid mind might conjure — can carry political benefits. Fear rarely fails, and Trump has a knack for taking the winning side of those 80/20 issues. And, legally, an emergency declaration can unlock fringe-extreme executive powers. But over the past few weeks, the federal courts have drawn a line. Not everything bad is an emergency, it turns out.

    When Trump went on a tariff bender this past spring, his advisers plumbed the law books and came up with the International Emergency Economic Powers Act of 1977. Trump declared that “large and persistent annual U.S. goods trade deficits” pose an existential threat to our “economic sovereignty” — notwithstanding the fact that a trade deficit isn’t necessarily a bad thing (it just means we import more than we export from a given country) and that we’ve run deficits for at least five decades continuously yet somehow managed to survive.

    The trial-level Court of International Trade rejected Trump’s use of the economic emergency law in May, and the Federal Circuit Court of Appeals reached the same conclusion in a seven-to-four decision last week (though the court allowed the tariffs to remain in effect for now, pending final resolution of the case by the Supreme Court). In its opinion, the appeals court cast a bit of side-eye at Trump’s histrionic tendencies. “Since taking office, President Donald J. Trump has declared several national emergencies,” the court deadpanned. Indeed: several. The Supreme Court announced this week that it will take and expedite the tariff case; expect a ruling by the end of the calendar year.

    Also last week, the Fifth Circuit Court of Appeals — one of the nation’s more conservative courts, covering Mississippi, Louisiana, and Texas — denied Trump’s facially preposterous effort to invoke the Alien Enemies Act to deport alleged members of Tren de Aragua, a Venezuelan street gang. In a two-to-one ruling featuring a George W. Bush nominee and a Biden nominee in the majority (against a dissenting Trump nominee), the court rejected Trump’s claim that the street gang’s presence in the United States constituted an “invasion or predatory incursion … by any foreign nation or government.”

    Trump lost on every prong. The court found that a street gang, though dangerous, is simply not the same thing as an occupying force dispatched by a foreign government. Indeed, history best illustrates the silliness of Trump’s position. Since its adoption in 1798, the Alien Enemies Act has been invoked four times: during the War of 1812, World War I, World War II, and now. To quote Sesame Street: One of these things is not like the others.

    And in June, Trump invoked a rarely used emergency law to mobilize the National Guard in California to address ongoing anti-ICE protests. He claimed (preposterously) that the protests constituted “a form of rebellion” and (more plausibly) that the National Guard was needed to enforce federal laws. District court Judge Charles Breyer initially ruled against Trump and blocked the deployment, but the Ninth Circuit Court of Appeals reversed that decision, citing the need to protect federal personnel and property. But last week, Judge Breyer scaled back the scope of the deployment, ruling that Guard personnel had been used illegally to perform civilian law-enforcement functions. The case is now back before the Ninth Circuit, which has temporarily paused Judge Breyer’s order.

    However that particular dispute plays out, Trump’s emergency declaration in California faces an even more formidable obstacle. California has renewed its challenge now that the purported source of the emergency — the anti-ICE protests — has essentially ended. It’s unclear how the Trump administration will respond; it’s tough to justify an emergency measure to deal with a situation that no longer exists.

    Of course, all the aforementioned rulings came from federal district courts and mid-level courts of appeals. Does any of this really matter, one might reasonably wonder, with the Supreme Court and its six-to-three conservative majority lurking above?

    The answer is definitively yes. First, the Supreme Court takes a minuscule fraction of all cases presented to it, typically 2 or 3 percent. Even if we bump up those numbers tenfold, given the unusual constitutional issues presented by these emergency cases, a substantial chance remains that the Court declines to hear any of the cases beyond the tariff matter. If that happens, then the court of appeals ruling becomes the final word. And, while the Supreme Court does whatever it darn well pleases, a well-reasoned, strongly supported lower-court ruling certainly can be influential and can provide the Court with a road map to reach a similar conclusion.

    There’s very little that’s realistically going to derail Trump’s ongoing quest to expand and flex his executive power. Trolling with all-caps social-media posts and TikToks featuring bad-boy cusswords are cute but won’t make a dent. The only meaningful speed bump on the horizon is the midterms, which bring the possibility (the probability, perhaps) that Democrats flip the House. But even a hypothetical Democratic House majority won’t take office until January 2027. Until then, it’s up to the judiciary to limit Trump’s emergency-fueled power grab. And, so far, the courts have done that job fairly and effectively.

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    Elie Honig

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  • Young Thug’s Leaked Calls Might’ve Ended His Relationship

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    Photo: Prince Williams/WireImage

    Young Thug’s leaked phone calls from jail might have ended his relationship with girlfriend Mariah the Scientist. He reportedly confessed to cheating on the singer just a few days before he was arrested in 2022. Another alleged call also leaked over the weekend, in which he was talking to an unknown woman about having children. A few of his phone calls have been leaking since last year, but it must’ve been the last straw for the couple. Young Thug issued an apology to Mariah on September 6 once the cheating allegations got out: “My baby I was wrong and I’m sorry for what I put u through. U deserved better from me.” He then asked his fans to “please give her peace.” However, based on Young Thug’s more recent posts, he suggests that he and Mariah might no longer be together. “Chapter ended,” he wrote with a heart in one post, before he asked for forgiveness. “To everyone involved in this situation I’m sorry this is happening and I hope u guys can forgive me, I’m moving forward with my life -THANK U GOD.”

    While Mariah hasn’t directly responded to Young Thug’s apology, she did repost the lyrics to her song “Rainy Days” on Instagram Stories, hinting that another apology wasn’t enough. “I was naive, not ignorant/So much my innocence now/Love me, leave me, let me down/Just let me break these habits somehow,” some of the lyrics read.

    While Young Thug did not address his relationship with Mariah in a three-hour episode on the Perspektives with Big Bank podcast, he did share how he felt betrayed by Gunna when he took a plea deal during the YSL trial. “How can you just do what you did to me and then just go live your life? Like ain’t nothing happened?” Young Thug expressed. “I love you bruh… I poured so much into him, I can’t even hate him. In jail I thought I hated him… But I don’t wish no ill will on him — no ill feelings at all.”

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    Alejandra Gularte

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  • Kamala Harris Has Finally Embraced Being a Cop

    Kamala Harris Has Finally Embraced Being a Cop

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    Photo: Erin Schaff/AFP/Getty Images

    One of the primary knocks on Kamala Harris from the far left during her failed run for the 2020 Democratic presidential nomination was that she was a “cop.” The accusation was, in essence, that the former San Francisco district attorney and California attorney general was not a “progressive prosecutor,” or at least not progressive enough. She locked up too many people, for too long, without embracing the popular criminal-justice-reform proposals of that particular moment.

    At the time, the New York Times ran an op-ed by a law professor entitled “Kamala Harris Was Not a Progressive Prosecutor,” which accused her of landing “often on the wrong side of history.” The accompanying photograph showed an unflattering image of Harris, mouth pursed and wagging her finger. An online activist accused Harris of “rampant anti-Blackness” and generated tens of thousands of likes. USA Today published a piece titled, “Public defender: I worked with Kamala Harris. She was the most progressive DA in California.” At the time, the piece was intended as a defense of Harris. Today, the same headline could fuel an opposition attack ad.

    Indeed, the criticism that Harris was not sufficiently progressive as a prosecutor sounds anachronistic now — bizarre, even — but at the time, Harris was on her heels. She struggled to parry the “Kamala is a cop” narrative and, at times, even downplayed her own law-enforcement credentials.

    But now Harris has taken a strikingly different, and far more effective, position on her prosecutorial past. It has become a cornerstone of her campaign as she shifts to the center, eager to dispel any suggestion that she was some bleeding-heart liberal, San Francisco flower-child DA who wept for her downtrodden defendants. In one of her first speeches after becoming the presumptive Democratic nominee for president in July, she jumped right in: “I took on perpetrators of all kinds — predators who abused women, fraudsters who ripped off consumers, cheaters who broke the rules for their own gain. So hear me when I say, I know Donald Trump’s type.”

    Of course, it doesn’t hurt her rhetorical cause that the guy she’s running against happens to be a convicted felon — for the moment, at least. The Manhattan hush-money case stands on dubious legal footing and will soon face appellate scrutiny. But for now it’s on the books, and it’ll stay there through the election. (The other criminal cases against Trump are sputtering, and nothing’s going to be resolved anytime soon, certainly not before November.) Still, what a gift: The DA gets to run against the defendant.

    Listen to the Counsel podcast

    Join a team of experts — from former prosecutors to legal scholars — as it breaks down the complex legal issues shaping our country today. Twice a week, Elie Honig and other CAFE contributors examine the intersecting worlds of law, politics, and current events.

    Harris’s turnabout seems to be equal parts strategy and serendipity. Clearly, she has chosen to lean in and celebrate her prosecutorial background rather than apologize for it. But the times also have changed so drastically, so quickly, that the megawoke days of 2019 and 2020 feel like another historical epoch. Not long ago, politicians openly argued in favor of defunding the police, Lego halted marketing of police sets, and television networks canceled highly rated shows that followed cops on the beat. Now, candidates strain to avoid any perception that they might not fully support law enforcement.

    The Trump campaign, for its part, has mostly whiffed on this issue. It’s cast about for a 2024 version of Willie Horton to throw at Harris. But thus far the effort hasn’t stuck in any meaningful way, in part because Trump’s messaging has been sporadic and scattershot. Some of the Trump campaign’s focus (fleeting as it has been) has landed on a man named Edwin Ramos — a multiple-murderer who was prosecuted by Harris’s office, convicted, and sentenced to life in prison in 2014. The rap is that Harris wouldn’t seek the death penalty in the Ramos case, or in another involving the murder of a San Francisco police officer. That criticism just hasn’t landed forcefully enough with the electorate. The fact that Harris’s office put both defendants behind bars, for life, seems to have blunted the negative impact.

    While Trump’s team flounders on her prosecutorial past, Harris is boasting on the campaign trail about the countless hardened criminals she put away, as any former prosecutor would do. (Kids, trust me, if you want to go into electoral politics someday, start off at the prosecutor’s office.) She reminds voters that she stood up for crime victims. During the presidential debate, she said that she would never ask victims about their political party — a strange point, given that no prosecutor would ever do so — but that she always would ask them “How are you?” She even has made a point recently to tout her gun ownership and to tie it to her prosecutorial past: “I have a Glock. And I’ve had it for quite some time. And look, Bill, my background is in law enforcement. So there you go,” she proudly declared during her recent 60 Minutes interview. And in her interview with Fox News this week, Harris effectively brandished her prosecutorial credentials to parry questions that implied she was soft on border crime, reminding Bret Baier that she had prosecuted transnational cartels.

    I suspect the Trump campaign will try again to paint her as a permissive, soft-on-crime DA — but the cement has already largely dried on the issue. Those “Kamala the Cop” memes certainly hurt Harris the last time she ran. But now she wears the label like a badge.

    This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.

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    Elie Honig

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  • Jack Smith’s October Surprise

    Jack Smith’s October Surprise

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    Photo-Illustration: Intelligencer; Photos: Getty Images/Department of Justice

    Jack Smith has failed in his quest to try Donald Trump before the 2024 election. So instead, the special counsel has bent ordinary procedure to get in one last shot, just weeks before voters go to the polls.

    Smith has now dropped a 165-page doorstop of a filing in federal court, on the issue of Trump’s immunity from prosecution. Judge Tanya Chutkan — who suddenly claims not to care about the impending election despite her earlier efforts to expedite the case to get it in before the very same election, which got her reversed and chastised by the Supreme Court — duly complied with Smith’s wishes, redacted out a few obvious names (who ever might “Arizona Governor [Redacted P-16]” be?), and made the rest public.

    There are two headlines here. The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.

    The larger, if less obvious, headline is that Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects. At this point, there’s simply no defending Smith’s conduct on any sort of principled or institutional basis. “But we need to know this stuff before we vote!” is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s unprincipled, norm-breaking practice. (It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place.)

    Let’s go through the problems with what Smith has done here.

    First, this is backward. The way motions work — under the federal rules, and consistent with common sense — is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions. Makes sense, right? It’s worked for hundreds of years in our courts.

    Not here. Not when there’s an election right around the corner and dwindling opportunity to make a dent. So Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first — even with no actual defense motion pending. Trump’s team objected, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” — moments before she ruled in Smith’s favor, as she’s done at virtually every consequential turn.

    Which brings us to the second point: Smith’s proactive filing is prejudicial to Trump, legally and politically. It’s ironic. Smith has complained throughout the case that Trump’s words might taint the jury pool. Accordingly, the special counsel requested a gag order that was so preposterously broad that even Judge Chutkan slimmed it down considerably (and the Court of Appeals narrowed it further after that).

    Yet Smith now uses grand-jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure — and also members of the jury pool.

    And that brings us to our final point: Smith’s conduct here violates core DOJ principle and policy. The Justice Manual — DOJ’s internal bible, essentially — contains a section titled “Actions That May Have an Impact on the Election.” Now: Does Smith’s filing qualify? May it have an impact on the election? Of course. So what does the rule tell us? “Federal prosecutors … may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

    Remember, Smith begged the judge to flip the rules on their head so he could file this document first, and quickly — “any action,” by any reasonable definition — with the election right around the corner. Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s conduct now. What’s the distinction? Both violated ordinary procedure to take public steps, shortly before an election, that plainly would have an impact on that election.

    I’m going to hand this one over to one of DOJ’s most esteemed alums, who explained it this way to the Justice Department’s internal watchdog: “To me if it [an election] were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now, you don’t do it.”

    Those words were spoken by Sally Yates — former deputy attorney general, venerated career prosecutor, no fan of Trump (who unceremoniously fired her in 2017), and liberal folk hero. As usual, Yates is spot on. And her explanation conveys this indelible truth: If prosecutors bend their principles depending on the identity of their prey, then they’ve got no principles at all.

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    Elie Honig

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  • Pras Michél Is Taking His Lauryn Hill Beef to Court

    Pras Michél Is Taking His Lauryn Hill Beef to Court

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    Photo: Walik Goshorn/Media Punch/Alamy Live News

    Pras Michél has a score to settle with Lauryn Hill. The Fugees member is suing his bandmate for fraud and breach of contract over their 2023 reunion tour, according a new lawsuit. The lawsuit comes just months after he blamed her for the tour’s chaos in a song he said was “not a diss track.” As Variety first reported, Michél claims Hill set the reunion up to fail while taking money for herself. He alleges Hill only proposed the reunion to recoup from an unsuccessful solo tour, but says it “was actually a veiled and devious attempt to make a big score for herself.” Hill said Michél’s lawsuit “is full of false claims and unwarranted attacks” in a statement to Vulture. “I am not in the business of kicking anyone, especially when they’re down, which is why I haven’t responded to date,” Hill said. “It is absolutely disheartening to see Pras in this position, my band mate and someone I considered a friend.”

    Per Michél’s lawsuit, Hill controlled a “bloated” tour budget that “seemed designed to lose money,” while also taking 40 percent of the tour’s guarantees for herself before splitting the remaining 60 percent with bandmates Michél and Wyclef Jean. Michél even claims Hill “unilaterally” turned down a $5 million opportunity for the Fugees to play Coachella, angry that they would be billed beneath the reunited No Doubt.

    Hill eventually canceled the second half of the band’s reunion tour at the last minute over “serious vocal strain.” Michél claims he owed nearly $1 million after the canceled tour dates, after hoping the reunion would help him pay back some of his legal fees for his separate money-laundering trial. (Michél will be sentenced later this year after being found guilty of an international conspiracy.) After Hill canceled the remaining tour dates, Michél released the song “Bar Mitzfa,” where he rapped, “Don’t blame me, blame her, she made the mess.” He later told Vulture the song is “not a diss track,” and said he “was both surprised and not surprised” about the tour cancellation. In the lawsuit, Michél also claims Hill has “tarnished the Fugees brand” with her reputation of showing up late for shows.

    In her statement, Hill said she invited the Fugees on the tour as a favor to Michél amid his legal struggles and that he received a $3 million advance to help with his legal fees. She claimed he has not paid back the money “and is currently in breach of this agreement.” Hill also alleged she fronted much of the expenses for the tour, while “Pras basically just had to show up and perform.” Hill further claimed Michél’s trial “was perhaps affecting his judgment, state of mind and character” and causing him to file the lawsuit. “I was not in Pras’ life when he decided to make the unfortunate decision that led to his current legal troubles,” she said. “I did not advise that he make that decision and therefore am in no way responsible for his decision and its consequences though I have taken it upon myself to help. Despite his attacks, I am still compassionate and hope things work out for him.”

    Lauryn Hill and the Fugees announced a new co-headlining tour this past June, set to begin less than two months later in August. Michél’s lawsuit claims the tour sold poorly due to the last-minute scheduling and lack of marketing and that Hill never shared the tour agreement with Michél. Hill and the Fugees canceled the North American dates just days before they were set to begin. In a statement at the time, Hill blamed bad sales on “sensationalism and clickbait headlines” that created a media narrative that worked against the tour. The band is still set to play shows in the U.K., France, and the Netherlands beginning October 12.

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    Justin Curto

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  • Sabrina Carpenter Owns Her Connection to Eric Adams’s Indictment

    Sabrina Carpenter Owns Her Connection to Eric Adams’s Indictment

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    Photo: James Devaney/GC Images

    Truly the “Feather” music video is the gift that keeps on giving. First it got a priest in trouble, now it’s somehow connected to the indictment of New York City Mayor Eric Adams. According to the NY Post, Monsignor Jamie J. Gigantiello of Our Lady of Mount Carmel-Annunciation Parish in Williamsburg (the same priest who let Carpenter get into some nonsense) may have been up to some shady business with Adams’ ex-chief of staff Frank Carone. Diocese officials said “It would be inappropriate to comment further on that review, which is still ongoing,” when asked about the investigation. Now, the Post implies that Carpenter’s MV helped twig officials to Giantiello’s potentially criminal doings, but let’s be clear: she’s not named in any subpoenas. Still, Carpenter is cool with the mythmaking taking place. At her latest show at Madison Square Garden, she asked the audience “Should we talk about how I got the mayor indicted?” If only she was still doing “Nonsense” outros, this one would be killer.

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    Bethy Squires

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  • Everything Leading Up to Sean ‘Diddy’ Combs’s Manhattan Arrest

    Everything Leading Up to Sean ‘Diddy’ Combs’s Manhattan Arrest

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    Photo: Shareif Ziyadat/Getty Images

    After being arrested in the lobby of a hotel in Manhattan on Monday, September 16, in the wake of numerous allegations of sexual abuse and trafficking, the charges against Sean ‘Diddy’ Combs have been unsealed. He is charged on three counts, including racketeering conspiracy, sex trafficking by force, fraud or coercion, and transportation to engage in prostitution. Combs had been accused of abusive behavior in at least nine lawsuits as of August 2024.

    In response to the arrest, Combs’s lawyer Marc Agnifilo shared a statement to Vulture: “We are disappointed with the decision to pursue what we believe is an unjust prosecution of Mr. Combs by the U.S. Attorney’s Office. Sean ‘Diddy’ Combs is a music icon, self-made entrepreneur, loving family man, and proven philanthropist who has spent the last 30 years building an empire, adoring his children, and working to uplift the Black community. He is an imperfect person but he is not a criminal. To his credit, Mr. Combs has been nothing but cooperative with this investigation and he voluntarily relocated to New York last week in anticipation of these charges. Please reserve your judgment until you have all the facts. These are the acts of an innocent man with nothing to hide, and he looks forward to clearing his name in court.”

    Homeland Security Investigations — which routinely probes sex-trafficking allegations — raided Combs’s homes in Los Angeles and Miami in March 2024 as claims against the hip-hop mogul continued to grow. During the searches, Combs was at the Miami–Opa Locka Executive Airport in South Florida, where federal officers questioned him. During this encounter, Brendan Paul, a former college basketball player, was arrested by local police for suspected cocaine and marijuana possession, USA Today reported. Paul has been accused of acting as Combs’s drug mule in civil filings.

    Scrutiny of Diddy started to unfold on November 16, 2023. Casandra “Cassie” Ventura, Diddy’s ex-girlfriend, filed a bombshell federal lawsuit on that day, accusing him of rape and a decade of abuse beginning when she was just 19. The singer, who was signed to Diddy’s label, said that he wielded complete control over her life, such as her apartment, clothing, medical records, and car. Diddy also went after rapper Kid Cudi — who went out with Cassie during a rough patch in her and Diddy’s relationship — the lawsuit claims. One day after Cassie sued Diddy, they settled out of court. But Cassie’s claims didn’t just go away. On May 17, disturbing surveillance video obtained by CNN showed Diddy physically attacking Cassie at a hotel in 2016. He apologized two days later on Instagram, claiming he was “truly sorry” for attacking her.

    Federal authorities, understandably, pay particular attention to allegations involving minors — and there are two allegations that could particularly imperil him as proceedings progress. Liza Gardner sued Diddy on November 23, 2023, alleging that Diddy and Aaron Hall forced the 16-year-old to have sex with them without consent. Gardner’s suit states that she met the duo at a record-release event. Following a post-event dinner, Diddy invited her and her friend to Hall’s apartment for an after-party. There, Diddy “coerced” her into sex. While she was dressing, Hall then burst into the room and forced her into sex. One day after the abuse, Gardner claims that Diddy came to her house and then assaulted her until she was unconscious. After “being violently and statutorily raped by Combs and Aaron Hall, Ms. Gardner’s life has been overwhelmed by depression, post-traumatic stress disorder, and strained relationship with men,” the suit claims.

    A December 2, 2023, lawsuit, filed by a Jane Doe, claims that Diddy and a former Bad Boys Records president Harve Pierre raped her when she was just 17 and enrolled in the 11th grade. Doe claims that she met Pierre at a Detroit lounge and that the music honcho told her that he was “best friends” with Diddy. She alleges that Diddy convinced her to ride on a private jet — with him, Pierre, and another accused abuser — to go to his New York City studio. When she arrived, Combs, Pierre, and his associates got the teen girl high and drunk and then “gang-raped” her, per the lawsuit. She claims that Diddy looked on as a third perpetrator raped her and that Pierre then attacked her, the suit says. Combs and Pierre deny her allegations.

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    Victoria Bekiempis

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  • The Venu Sports Streaming Bundle Will Be Benched for a Bit

    The Venu Sports Streaming Bundle Will Be Benched for a Bit

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    Is this how ESPN, Fox, and Warner Bros. Discovery feel?
    Photo: GeorgePeters/Getty Images

    Huddle up, y’all. There’s been a hiccup in the launch of Venu, the planned sports streaming bundle from three heavy hitters in the media landscape. Per CNN, a judge has delayed Venu’s launch by granting FuboTV’s request for a preliminary injunction against the joint venture by Fox, Warner Bros. Discovery, and the Walt Disney Company (you might see some reports swap ESPN into that last slot; ESPN is majority-owned by Disney). Fubo filed a lawsuit two weeks after Venu was announced back in February, arguing that the bundle would violate antitrust laws and cause consumers to “face irreparable harm in the absence of an injunction.” On Friday, a New York district judge ruled that Fubo would likely succeed in proving those claims in trial. Unsurprisingly, Fox, Disney, and Warner Bros. Discovery said they plan to appeal, claiming that “Venu Sports is a pro-competitive option that aims to enhance consumer choice by reaching a segment of viewers who currently are not served by existing subscription options.” As we previously reported, Venu promised to offer its subscribers a dizzying amount of sports coverage through access to all ESPN channels, ESPN+, ABC, FOX, TNT, TBS, and TruTV … plus programs like 30 for 30 via the ESPN library. Venu was originally set to debut this fall with a locked-in “launch price” of $42.99 per month for one year, but the Associated Press now reports that the launch will likely be pushed until at least 2025.

    According to Courthouse News, Fubo said in its filing that it has long wanted to launch a sports-only streaming service, but that it faced difficulties because networks allegedly charged unfairly high licensing costs and forced bundles with entertainment channels that sports fans don’t want. “Today’s ruling is a victory not only for Fubo but also for consumers,” David Gandler, Fubo co-founder and chief executive, said in a statement. “This decision will help ensure that consumers have access to a more competitive marketplace with multiple sports streaming options.” Keep in mind, though, that a preliminary injunction is basically just a timeout. In other words, Friday’s decision is a temporary delay, not a permanent block. A trial date for the antitrust lawsuit has yet to be set. So you’ve got some time to decide, sports fans — are you Team Fubo or not?

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    Jennifer Zhan

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