• October 9 grand jury
• October 16 grand jury
• October 25 grand jury

For example, the clearly prohibited vouching that Judge April Perry described took place almost immediately in the grand jury presentation — the word “vouch” was the 90th word Sheri Mecklenburg uttered.

MS. MECKLENBURG: I’m happy to be back. Sheri Mecklenburg. We’re here — I’ll introduce my co-counsel in a minute. We’re here on 25 GJ 994. 8 With me today is Matthew Skiba.

Matt is my partner on this case, and he hasn’t been in the office very long. He has been a great partner. I’m very lucky to have him. So this is an interesting case.

THE COURT REPORTER: Can you go to the mic?

MS. MECKLENBURG: Yes. This is a very interesting case. It’s a little different.

I purposely asked if I could wait for the Thursday grand jury. I did. Matt. will vouch for me. [my emphasis]

The ejection of a grand jury member(s) was more dramatic than described, coming close to the beginning of the second presentment, after the grand juror described the case to be a “crock of shit.”

GRAND JUROR: Do you have unlimited tries?

MS. MECKLENBURG: Do we have — what did you ask?

GRAND JUROR: Unlimited tries. Like you keep coming back as many times as you want?

MS. MECKLENBURG: Well, I don’t think we have to worry about that. I think we’re going to be just fine.

MR. SKIBA: I think the saying is the second time is the charm.

MS. MECKLENBURG: I hope you don’t have your mind made up already that I’m going to need more tries.

MR. SKIBA: Yeah, I think that —

MS. MECKLENBURG: Wait, wait, wait. You just responded like, well, maybe I do. Do you?

GRAND JUROR: I mean I’ll listen.

MS. MECKLENBURG: Do you have an open mind for deliberation and returning a verdict if the facts meet the law?

GRAND JUROR: Yes.

[snip]

GRAND JUROR: Are you actually presenting any new actual facts or just a different viewpoint on your side?

MS. MECKLENBURG: Okay. I’m feeling the skepticism already. Are you going to be able to listen with an open mind? Tell me the truth.

GRAND JUROR: I — no.

MS. MECKLENBURG: Okay. Then you have to go —

GRAND JUROR: I heard this case like last week and I thought it was a crock of shit then and I still think it is.

MS. MECKLENBURG: Okay. Thank you for your opinion for everybody.

GRAND JUROR: Uh-huh.

MS. MECKLENBURG: I kind of had that impression from last week, but thank you.

GRAND JUROR: Do you have any evidence other than the (inaudible) —

MS. MECKLENBURG: Have a good evening.

Pardon me?

GRAND JUROR: I’m (inaudible) — no new evidence?

MS. MECKLENBURG: I didn’t say there is no new evidence.

(Inaudible.)

If you feel that you can’t be — then excuse yourself. That’s fine. There is still 16?

After that happened — and Mecklenburg had improper contact with two grand jurors — US Attorney Andrew Boutros repeated Mecklenburg’s admonitions about personal viewpoints before the third grand jury appearance (after which Mecklenburg began that presentment by claiming she was not going to issue such admonitions — I mean, her boss already had — then putting on the record her ex parte conversations about precisely that topic).

But the grand jury transcripts also back something that had been the subject of litigation throughout this case: how DOJ came to charge just the 6 people they did, who were in no way the most threatening people involved in blocking a car entering Broadview on September 26 of last year, but who were, instead, political figures who had condemned Broadview specifically and Trump’s immigration policies more generally.

Here’s how Kat Abughazaleh described the selectivity with which DOJ charged the case in a motion for a Bill of Particulars:

Even though dozens of demonstrators participated in “Jericho Walk” when the SUV turned into them on Harvard Street, the six individuals chosen for the indictment all were publicly outspoken against what they descried as the administration’s draconian, cruel, and unconstitutional immigration enforcement policies. This includes public statements and social media posts describing both experiencing and witnessing the violence and aggression of ICE and CBP. Most of these six individuals are also deeply involved in progressive politics. These commonalities are the only ties that bind them.

And here’s how all defendants noted that, with the dismissal of the charges against Catherine Sharp and Joselyn Walsh in March, the only defendants left were political figures or a campaign manager.

Perhaps most salient, all four defendants who remain charged in this case are Democrats who either hold public office (Messrs. Rabbit and Straw), is a candidate for public office (congressional candidate, Ms. Abughazaleh), or works for the Democratic Congressional campaign (Mr. Martin). Notably, of the two defendants the government has dismissed from the indictment, one did not hold and did not seek public office (Ms. Walsh) and other withdrew her candidacy for public office as a direct result of her being charged in this case (Ms. Sharp).

In the first grand jury appearance, Mecklenburg admitted that she selected the defendants based not on the video evidence itself — on what happened with the ICE vehicle purportedly blocked — but on the defendants’ social media traffic.

I’m going to present to you an agent who is going to walk us through the videos and then we’re going to show you how we identified — we have an interview of Agent A we’re going to tell you about who is the driver and then we’re going to talk about how we identified people in the video and it’s kind of an interesting thing because what you do is you find a social media account — you’ll hear this evidence.

And then you see that they posted a video of the incident and then you see that somebody — they liked someone else’s post of the video so you go to their post of the video and you see that they tagged someone else and you go to theirs and if you pull all of their faces, you 4 recognize them in the video.

And, of course, some people were posting “I was there, and I was one of the people.” So that was helpful. And then in the end, I will tell you about the law, and we’ll ask you for an indictment. We’re asking you for an indictment on a conspiracy that they all together 11 did this and on a 110 [sic] — it’s — the second count is a misdemeanor assault on an officer.

This may have been an attempt to replicate the January 6 investigation (as so much of Trump’s grievance abuse does). Except there’s a problem with that approach in this case. As Abughazaleh’s reply on her motion for a Bill of Particulars laid out, the actual video evidence showed that the charged defendants were not the key participants and for most, they took actions that made it clear their interaction with the car was about something other than an attempt to prevent the ICE agent from getting to work. Several, including Abughazaleh, stepped away from the vehicle.

With megaphone in hand, and acting contrary to the purported goals of the alleged conspiracy, Ms. Abughazaleh’s first words toward the crowd were, “that’s private property back there, come back[.]” Then, speaking directly to the Broadview police officer standing next to her, Ms. Abughazaleh exclaimed, “you just let him run us over! …. He literally just ran over my foot!” The image below captures these moments in the immediate aftermath of the SUV turning into the crowd, and also shows Agent A’s SUV (within the red circle), some distance from the intersection where Ms. Abughazaleh had retreated, which is also where she and other protestors had been marching for hours that morning:

Similarly, additional video footage shows that, like Ms. Abughazaleh, Defendants Joselyn Walsh, Andre Martin, Michael Rabbitt, and Catherine Sharp all independently moved away from the SUV within seconds after they found themselves in its path. As shown below, Ms. Walsh (in the red circle) can be seen with her guitar under her right arm, standing next to a Broadview police officer while the SUV was already driving away from her toward the Broadview Facility:

The image below shows Mr. Martin (in the red circle and standing next to Ms. Abughazaleh with her back turned) back at the intersection and at a distance far behind the vehicle as it proceeded toward the facility:

The next image shows Mr. Rabbitt (in the red circle) turning away from the vehicle and crowd of protestors, while additional footage produced in discovery establishes that Mr. Rabbitt is no longer present as the vehicle proceeded toward the detention facility:

Finally, in the immediate aftermath of the vehicle turning into the crowd, Catherine Sharp (in the red circle) can be seen observing the vehicle with a phone in hand, as it moved towards the facility.2

2 The first and second images are from the recently produced Broadview police BWC footage, while the third and fourth images are from a video that was previously produced in discovery and that was also linkedto in the DOJ’s press release announcing the indictment. See https://tinyurl.com/yftt6nus (last visited Feb. 22, 2026). The fifth image is from a different video which was also previously produced.

Note: The import of BWC footage is curious, because both Matthew Skiba and Mecklenburg claimed on October 16 that there were no cops present, and so there was no video from them.

MS. MECKLENBURG: This video is from Ms. Abagazala’s social media.

MR. SKIBA: Yeah. So some were like a Twitter, an Instagram. Some were, I believe, YouTube. This was all civilians taking photos.

MS. MECKLENBURG: Yeah. No law enforcement was out there, so they didn’t take any video.

When asked whether they would hear from cops in the first grand jury presentment, Mecklenburg answered by raising politics as a non sequitur, as if testimony from cops would be inherently political.

Abughazaleh’s reply motion may have been somewhat persuasive. Shortly thereafter (and after Judge Perry ordered DOJ to provide more specifics about their theory of the conspiracy), DOJ moved to dismiss the case against Sharp and Walsh with prejudice, the same day it limited its application of the conspiracy.

It turns out, four months before Abughazaleh laid this out publicly, grand jurors were making some of the same arguments to prosecutors.

One grand juror noted that the video showed Abughazaleh and Rabbitt disengaging (Mecklenburg struggled throughout to keep Rabbitt and Brian Straw straight; at one point a grand juror had to correct her).

GRAND JUROR: — Michael Rabbitt no longer appears in the frame. And neither Kat or either Kat appears to be anywhere near the front of the truck again. I’m just wondering about that. So I don’t — I’m struggling to locate them.

MS. MECKLENBURG: You — they don’t have — they can step away. You can do it that — you can impede for some time, and then you  can decide that you’re going to stop. That doesn’t change the fact that you have impeded for some time. And they could be going — and 24 we don’t know where they are here. They could 25 be going and doing something else to the car or something else. We just don’t know.

GRAND JUROR: Okay.

MS. MECKLENBURG: So I — what’s — the probable cause comes from when you do see them on the video, not from when you don’t.

Shortly after, Mecklenburg claimed that moving away from the car was part of the conspiracy.

MS. MECKLENBURG: The first side is the driver’s side, and the second side is the passenger’s side.

MADAM FOREPERSON: Passenger’s side.

MS. MECKLENBURG: So it’s happening at the same time. But keep in mind, people are moving in and out —

MADAM FOREPERSON: Yeah.

MS. MECKLENBURG: — which is part of the conspiracy.

Later in the same hearing, in response to a grand juror challenging her claims about Cat Sharp, Mecklenburg gave conflicting instructions about what put someone in the conspiracy, first claiming they only charged people “who were actually doing things,” then claiming that could include someone not engaging with the SUV.

GRAND JUROR: So are — is it basically arguing that pretty much anybody who walked in front of that car could be charged with a conspiracy even if they weren’t actually touching the car and somehow impeding it, even if they were just walking along with it? MS.

MECKLENBURG: That is not what we charged. And I don’t want to answer hypotheticals. We charged only people who were actually doing things.

GRAND JUROR: I —

MS. MECKLENBURG: So if you are going to talk about could we charge this person or that person, it’s not relevant to the probable cause against these people.

GRAND JUROR: Right. Except that what I’m getting to is I watched that video again. And specifically with regards to Cat Sharp —

MS. MECKLENBURG: Mm-hmm.

GRAND JUROR: — maybe I completely missed it, but at no point did I ever see her touching the car. Or she looked in that video to me to be more walking behind two people in close proximity but not actually touching it.

And so I — that’s where I’m kind of — that’s how I feel. If somebody is there walking in — in front but not actually engaging the car, are they somehow still part of this conspiracy?

Because —

MS. MECKLENBURG: Well, okay. I’m not going to — I’m going to let you figure out your facts as to what you saw on the video, and in deliberation you can talk about that. Whether you saw her reaching forward as well or pushing on other people to hold off the car, you  decide what you saw. I — I showed you the video, gave you the testimony, and you draw your conclusions.

I will tell you that if somebody is also in front of the vehicle in the crowd preventing the car from — standing in front of the car from it going, then they can be part of the conspiracy.

In January, Cat Sharp dropped her election bid, running on a pro-immigrant platform, because of this prosecution, which makes Mecklenburg’s blowoff of the grand juror’s observations all the more infuriating.

And then there’s the more general view from some grand jurors that DOJ was charged some protestors, these protestors, for being in front of the ICE vehicle when it drove into them. The first time it happened, the grand juror withdrew the question after Mecklenburg pushed back.

MS. MECKLENBURG: So you want to 8talk about the right thing. What if he had stopped?

GRAND JURY: But it’s the flip of the thing is can’t you say he was trying to run over the people?

MS. MECKLENBURG: Did you really 14 think when you saw that video

GRAND JURY: No. It’s a bad question —

Much later in the same hearing, when discussing the assault charge, a grand juror (it could be the same one, and it could be one of the grand jurors who was ejected) raised a similar question.

GRAND JURY: So if the person comes and stands in front of my car, do I have the right to drive against him?

MS. MECKLENBURG: We are not going — we don’t need to address that today because it didn’t happen.

GRAND JURY: It happened. He moved.

MS. MECKLENBURG: It did not happen that he drove into any of them such that any of them were actually knocked over, hit.

GRAND JURY: It’s just luck.

MS. MECKLENBURG: No, it wasn’t luck. Oh, no, it wasn’t — sir, it was not luck.

It was his calmness and his judgment to drive as slowly as possible as he could and not hit anybody. It wasn’t just luck.

GRAND JURY: Let me go back to my question.

MS. MECKLENBURG: Yes.

GRAND JURY: So can I drive slowly without intent of harm to that person who is standing in front of the vehicle?

MS. MECKLENBURG: It would depend on the circumstances. I don’t want to give you people advice if you go do it and say, oh, no,

Sheri said. I don’t want to be the one to tell you. It would depend on the circumstance.

GRAND JURY: The argument is they are pushing back so they won’t get hurt. He was driving toward them.

MS. MECKLENBURG: And my argument to that would be you saw in the video space all around where they could have walked away. They didn’t actually have to stay there.

Of course, this argument, made in the first grand jury session, deviates from Mecklenburg’s later argument, from the third, that it didn’t matter that Abughazaleh and Rabbitt disengaged, because the fact that they touched the car was sufficient.

The argument that the ICE goon drove into protestors rather than protestors trying to obstruct him from getting to work matters, because it is what Abughazaleh said in the post that started the entire focus on her and other political figures — a post which led people like Mike Davis (who is reportedly buddies with Todd Blanche’s hitman, Aakash Singh), Will Chamberlain, Mike Lee, and Ted Cruz to demand her prosecution. I think, but am not positive, that prosecutors shared this tweet (just the Abughazaleh one, not the Mike Davis RT) with grand jurors.

Indeed, this tweet was part of competing arguments as to whether this entire prosecution was vindictive, targeting Abughazaleh especially.

Here’s how defendants described that post in their motion for selective prosecution, noting that it came after the White House had already called for Abughazaleh’s prosecution.

Prior to their indictment in this case all Defendants were involved in various degrees in progressive politics and were outspoken public critics of the Trump administration. Many were at Broadview on a consistent basis before September 26. In particular, on September 19, 2025, Ms. Abughazaleh was present for a peaceful protest at Broadview and was violently thrown to the ground in an incident that was recorded and went viral on social media, was reported in the press, and is even included in the government’s discovery production. Ms. Abughazaleh’s experience on September 19 and presence on other occasions was particularly amplified due in large part because she is a candidate in the race for the seat in Illinois’ 9th Congressional District, a fact which drew much attention from White House officials and several closely aligned conservative figures and public personalities. Indeed, as noted above, after the September 19th incident, a White House Deputy Press Secretary accused Ms. Abughazaleh of committing a “crime” by “obstructing law enforcement” based on her protest activity at Broadview.9 Fox News host Laura Ingraham said “Good Work” to the agent who thew Ms. Abughazaleh down, and Laura Loomer, a close Trump ally and influential voice in the White house, similarly praised the agent for body slamming Ms. Abughazaleh directly.10 And when Ms. Abughazaleh posted a video of “Agent A” driving his SUV into the crowd on September 26, 2025, with the commentary, “At the Broadview ICE facility, an ICE agent tried to run dozens of protesters over with an SUV as we walked on a public crosswalk,”11 United States Senator Ted Cruz of Texas along with other right-wing social media figures called again for her arrest and prosecution for her protest activity at Broadview. 12 Then, as noted above, on October 3, 2025, Ms. Abughazaleh spoke out against the Trump Administration, ICE, and Noem at Broadview and on MSNBC, only to draw the further ire of DHS officials accusing her of crimes. These publicly expressed wishes were soon fulfilled.13

11 See Kat Abughazaleh (@KatAbughazaleh), available at: https://x.com/KatAbughazaleh/status/1971567602003820796 (last visited March 9, 2026).

12 See Ted Cruz (@tedcruz), available at: https://x.com/tedcruz/status/1971689170243670375 (last visited March 9, 2026).

13 Defendant Andre Martin was and is a senior member of Ms. Abughazaleh campaign and was publicly identified as such in online media. Also Mr. Martin, in that capacity, was routinely at Ms. Abughazaleh’s side at campaign and protest events. [my emphasis]

The government, in its response on selective prosecution, described Abughazaleh’s post this way in support of an argument that the only reason these defendants were charged is because they made it easy to identify themselves (again, an argument that owes a nod to the January 6 prosecution):

Similarly, defendant Abughazaleh posted about the incident on several social media platforms and included video clips that clearly depicted her and defendant Martin obstructing Agent A’s vehicle, including the post below on X:

On October 9, when Mecklenburg first tried to indict this, the ICE invasion was in full swing, DOJ had just charged Marimar Martinez for being shot and accused Juan Espinoza Martinez — who was acquitted at trial — of soliciting a hit on Greg Bovino. Amid that outrage, Abughazelah had directly confronted Kristi Noem at Broadview.

And purportedly without doing basic things like getting the BWC that provided the exculpatory evidence cited above, Sheri Mecklenberg rushed to get an indictment targeting a bunch of outspoken Democrats, and when she tried the second time, she stated that doing so was her job.

We’re here again on 25 GJ 994. It’s the same case we were here last week on.

I am back because if you did not — between the questions and not getting an indictment, I did not do my job. I did not explain it to you well enough.

When she tried to address the questions that had bogged down her first attempt to get an indictment, she lumped those other more obviously obstructive protestors in with the cops who witnessed the exchange that shouldn’t hold up her rush to get an indictment.

The next question is:

What about some of the other witnesses?

There was a truck driver in the area.

There was police.

We believe that the video and the testimony is plain as day. We only need to establish probable cause, which does not require us and the Grand Jury to present every conceivable witness to this event.

Next question: What about the other individuals who were surrounding the car?

At this stage it’s irrelevant. We have named six individuals responsible in the indictment and that’s all — the only question is, is there probable cause to believe that they committed these offenses.

And eventually she did her job: she got an indictment of Kat Abughazelah and five others for complaining that an ICE goon drove into them as they protested in a crosswalk.

Mecklenburg’s own description of what she was up to adds considerable weight to the argument that Trump’s DOJ had it in for Abughazelah and so used a conflict ICE created to prosecute her.

The post How DOJ Threw a Crock of Shit because Kat Abughazaleh Complained about Being Run Over appeared first on emptywheel.

Actually, those allies are getting *more* nervous.

When Trump took office in January 2017, he immediately failed his first intelligence test. He revealed specific intelligence to Russia about an Israeli mole inside ISIS, compromising their assets. Over in Russia, the US had a highly placed source within the Kremlin, and both the source and the source’s handler had to have seen this and gotten very nervous. The handler went up the chain and said in essence “We have to get to get our source out of here, before Trump says something to put *him* in danger.” So they did.

When Biden took office after Trump 1.0, he proclaimed to our allies “America is back!” They nodded sagely, and said “Yes, but for how long?” Biden selected the longtime career diplomat William Burns to be the Director of the CIA. Burns had decades work in sensitive posts, which includes the handling of intelligence products, and all kinds of connections abroad. His task, in part, was to repair the damaged caused with foreign allies. It was a very large task.

The day after Trump returned to the White House, I noted that the allies would be rethinking a lot when it comes to foreign policy and intelligence work, especially after Trump put forward some very stunning executive orders:

. . . imagine you are the head of the German Bundesnachrichtendienst, the Australian Secret Intelligence Service, the Israeli Mossad, or any of the intelligence agencies with whom we regularly share intelligence. This EO says that Trump is giving a six-month waiver to the background check requirement. What could possibly go wrong?

Now imagine you are the head of the intelligence service of an unfriendly country. How large is your smile?

Just as they watched Biden’s new team in 2021, all the foreign intelligence services are watching Trump today. Yes, they are taking note of Trump indicating the US is withdrawing from the Paris Climate Agreement, and also the World Health Organization. But screwing with security clearances in the White House is on another level.

By early February 2025, shortly after Trump took office once more, it became clear what Trump thinks of intelligence sharing and relationships with allies: not much. By late February, the answer to the question “how long?” posed to Biden became clear: four years and five weeks.

Over the past year, it has only gotten worse, as one example makes clear:

Britain has suspended the sharing of intelligence with the US on suspected drug trafficking vessels in the Caribbean amid concerns information supplied may be used to engage in lethal military strikes by American forces.

Such a decision – a rare rupture between the normally close military allies – would indicate that the UK does not believe the Trump administration’s controversial practice of sinking boats allegedly used by drug traffickers is legal.

The UK, which retains oversight on several island territories in the Caribbean, has long shared intelligence with the US about the movements of suspect vessels travelling from Latin America, so they can be seized by the US Coast Guard.

Why do this? Because the British were worried about being accomplices in war crimes and crimes against humanity.

When Trump and Netanyahu started their war against Iran and its proxies, I summed up the reaction of the world to the attacks in particular and Trump’s entire first year in general in a single word.

Untrustworthy.

In one word, that sums up the Trump presidency. And more and more, it’s the one word coming to sum up the United States of America in the eyes of the world.

Everything Marcy wrote earlier remains true. But putting a political hack with a record of breaking rules in pursuit of private and petty battles for vengeance (waving to Bill Pulte) in even temporary charge of the US Intelligence community is absolutely frightening to our allies. Putting an ass-kissing suck-up (waving to Todd Blanche) in charge of the US intelligence community’s most delicate internal spying efforts multiplies their fears.

At the same time, our enemies have to be looking at how they can manipulate the situation and make it work even more to their advantage. I can hear the questions bouncing around the FSB headquarters, as well as their counterparts in China, Saudi Arabia, and elsewhere . . .

“Are there things we want to do while the rookie is distracted getting his feet wet?”
“Is there bait we can dangle that would send him chasing his tail while we do other stuff behind his back?”
“Are there traps we can lay to get the rookie to do stupid stuff, like inadvertently revealing important information?”
“Is there poison we can inject into the US, to further destroy the US relationships with the EU and the Five Eyes nations?”

Turning over FISA to an unconstrained Todd Blanche is not just bad for our own constitutionally-protected freedoms against warrantless searches and seizures – it’s yet another sign to the world that “untrustworthy” is not just a moral failure. It’s damned dangerous, and foreign governments around the world are taking that into account. “What intelligence will we share with the US, seeing how they treat their own intelligence products? Will ours get exposed to the detriment of our ongoing intelligence operations? Will ours get used in ways that get us in trouble – or even get used *against* us?”

Secretary of State Marco Rubio ought to be worried about these things, as his job in getting other nations to cooperate with the US becomes more difficult if they don’t trust him. Secretary of Excursions Pete Hegseth ought to be worried about these things, as fighting a war becomes exponentially more difficult if you potential and actual allies quit talking to him.

Before any votes to reauthorize FISA, before any votes to seat a permanent DNI, and especially before any votes to confirm Todd Blanche as attorney general, Republicans in the Senate need to think long and hard about about the foreign consequences of their votes. Because I guarantee you this: voting to approve these Trump priorities will come back to bite not just these senators, but the entire nation.

The post The World Knows Trump’s Team is Not Qualified to Use FISA, Too appeared first on emptywheel.

There is absolutely no reason any Democrat should reauthorize Section 702 so long as the guy in charge of reauthorizing it is someone like Pulte, someone who has already proven willing to weaponize his access to sensitive data to target Trump’s adversaries.

[snip]

But given the timing, it should be simple to refuse to provide any votes for 702 so long as Pulte is anywhere near ODNI.

That is, remarkably, what has happened. Shortly after I called for Democrats to take a stand, Mark Warner (who would otherwise have whipped Dems to cast those votes) did. For a test vote last week, only John Fetterman voted to reauthorize the program. And Hakeem Jeffries has joined in the effort, stating that Democrats will not consider supporting FISA until Pulte is removed from DNI.

And now the fight has snowballed. Trump is contemplating using the FISA impasse to gut ODNI.

Trump administration officials have been using the stalemate to push their long-held desire to significantly scale back, if not eliminate outright, the ODNI. That would mean not naming a permanent DNI to succeed Tulsi Gabbard when she departs from the post at the end of the month.

“There is clearly an interest in downsizing and reevaluating the value that ODNI brings to the entire intelligence community and national security apparatus in the country — and so yes, I think that’s a part of the conversation,” Thune told us. Thune added that resolving the immediate situation would still likely require the White House to name a permanent nominee.

Yet most senators don’t see the need to resolve ODNI’s future while addressing Friday’s Section 702 deadline. The House and Senate intelligence panels have been debating this issue for several years now, and they’re far from a consensus. Which means the issue won’t get resolved this week.

“It’s a bureaucratic mess, it’s been downsized by Tulsi Gabbard significantly already,” Lankford said. “It is not a significant place that everybody makes it out to be… It’s an experiment that hasn’t worked.”

There are problems with this plan, which I’ll get to. Though admittedly many on both sides of the aisle believe ODNI (and DHS) should be rethought — just not in this context, where someone even stupider than Elon Musk takes over and makes stupider cuts than DOGE did (remember that Musk tried, several times, to cut nuclear safety, on orders from DOGE, IRS unlawfully shared the information of upwards of 2,000 people with ICE (each of whom should now demand $10 billion, like Trump did), and DOGE cuts to screwworm mitigation are leading to multi-billion dollar losses.

The further we go, the expensive, snowballing problems DOGE caused are becoming visible.

And Trump wants to repeat that with Pulte, only with national security.

There’s something few are addressing, though (and Trump appears not to have considered with his bid to do away with ODNI entirely). The reason tying Pulte’s nomination to FISA reauthorization works is because, to an extent not present in many other programs, FISA requires credible declarations: from the Directory of National Intelligence, from the Attorney General, and (to a lesser extent) the FBI Director.

Such declarations are the cornerstone of FISA 702, for example.

(a)Authorization
Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (j)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

[snip]

(d)Targeting procedures
(1)Requirement to adopt
The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—
(A)ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
(B)prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
(2)Judicial review
The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (j).

And those declarations require judicial review.

At the Agent level, once you’ve been caught in a lie, your word is no longer considered good before judges.

There’s no reason the same rule should not apply with men like Pulte, Todd Blanche, and Kash Patel, given their clearcut records of false statements and abuse.

I first raised this issue when Kash Patel lied to the Senate about Kilmar Abrego, precisely the kind of target for surveillance on which FISA declarations pivot (the FBI Director certifies the methods to be used with individual FISA targets and must provide transparency for US Person queries of FISA 702).

But the issue is even more stark with Pulte and Blanche, on whose declarations the entire 702 program would rest.

Pulte appears to have rooted through privacy-protected agency data to find baseless claims against several of Trump’s enemies. NYT yesterday made it clear that Todd Blanche recognized his case against Tish James, at least, was bogus.

In July, Mr. Blanche summoned F.B.I. agents, Virginia prosecutors and senior F.H.F.A. officials to a meeting at the Justice Department to talk about the James investigation. The meeting began with a detailed presentation from F.B.I. agents, emphasizing the lack of evidence of criminality surrounding Ms. James’s mortgages.

Then Mr. Blanche declared that the evidence simply did not support a criminal case against Ms. James for either property. When Mr. Pulte’s aides tried to argue or interject, Mr. Blanche shot them down.

And Blanche has done still worse. Judge Waverly Crenshaw found that Blanche personally intervened to gin up a criminal case against Abrego, then had his fixer, Aakash Singh, directly oversee the investigation.

Blanche’s words directly confirm that the Executive Branch reopened the criminal investigation because the Judicial Branch required the Executive Branch to facilitate Abrego’s return from El Salvador. That evidence confirms what the timing of Agent VanWie’s reopening suggests. From the time Agent VanWie reopened the case, the investigation was marked by retaliatory taint. The evidence recovered from that tainted investigation was, in McGuire’s words, “significant” and “important corroboration” to support the charges against Abrego. (Evid. Hr’g Tr. at 65–66).

Blanche’s statements address the investigation directly, not the indictment. The evidence that ties the tainted investigation to the indictment comes from Singh’s ongoing close involvement to the indictment. As a direct report to Blanche, Singh ties the indictment to Blanche’s vindictive motive. This further suggests direct evidence of vindictive prosecution.

[snip]

Whatever McGuire thought about his own authority, Singh’s instruction to await “clearance” is evidence that Main Justice exercised control over the charging decision down to the finish line. Indeed, Singh did so to the end. On May 20, Singh asked McGuire and Warren for “a draft memo.” (Gov’t Evid. Hr’g Ex. 1 at 23). Only three days later, the Government indicted Abrego. (Doc. No. 3).

Singh thoroughly engaged himself in the preindictment process. His oversight touched on everything from the timing of the indictment to the substance of the potential charges. His sustained oversight is objective evidence that connects Main Justice to the indictment.

In the SPLC case, DOJ did not rebut the NGO’s contention that Todd Blanche lied about the case.

The NYT also revealed that Blanche pushed the 8647 investigation into Jim Comey after the Secret Service declined to participate, without disclosing that in his public press spectacle.

The morning after Mr. Comey’s post, Mr. Blanche’s deputies told prosecutors in Mr. Siebert’s office to investigate the seashells. Secret Service agents tracked Mr. Comey and his wife as they traveled from the North Carolina seashore to their home in Virginia — a level of surveillance that some agents said they felt was overkill.

Mr. Comey quickly agreed to sit down with Secret Service agents for an interview, and he insisted again that he had no intention whatsoever of threatening Mr. Trump. Given Mr. Comey’s cooperation and statements, Secret Service investigators concluded there was no point in opening a full investigation.

Mr. Blanche’s deputies disagreed and pressed both the Secret Service and the F.B.I. to pursue the case. The Secret Service is part of the Department of Homeland Security and therefore did not report to Mr. Blanche. Their agents refused to pursue the case, a decision that made it easier for the F.B.I. and prosecutors in Virginia also to say no.

[snip]

In April, prosecutors in North Carolina indicted Mr. Comey over the “86 47” photo. Mr. Blanche, by then the acting attorney general, declared the seashell charges were the product of work by career agents and prosecutors. He never mentioned that other career prosecutors and agents had previously rejected the case.

And perhaps most seriously, Blanche — as well as Stan Woodward, one of the other attorneys at DOJ sufficiently senior to sign certain kinds of FISA documents — are credibly accused of committing fraud on Judge Kathleen Williams, so much so that she has ordered more briefing on the deception involved in the Terrorist Slush Fund.

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs shall file a response to the Motion (DE 63) on or before June 12, 2026, detailing their position on the matters set forth in the Motion, including (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the “victim of a fraud.” (DE 63 at 13, citing 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2870 (3d ed.)).

Everywhere you look, Todd Blanche is lying to target Trump’s enemies. More and more, judges are ruling that Blanche has engaged in misconduct to target Trump’s enemies.

And you think that guy is credible to sign FISA declarations?

I don’t know whether the current FISC presiding judge (former Clarence Thomas clerk and Trump appointee Carl Nichols) would reject declarations from such miscreants.

But the extent to which Blanche has absolutely shredded presumption of regularity should be at the forefront of discussions about his promotion and FISA.

Magistrate judges and juries, all over the country, will reject the statements of Agents who’ve been caught lying in the past. And yet we’re supposed to authorize programmatic spying based on the word of two Trump flunkies who seem to think their primary job is to weaponize the government against Trump’s imagined enemies?

The post Trump’s Team Is Not Qualified to Use FISA appeared first on emptywheel.

What this story adds are a number of details that will make everything more difficult for DOJ: sustaining the 8647 case against Comey, bringing a grand conspiracy case against John Brennan and Comey in Florida, getting Bill Pulte into the Acting Director of National Intelligence role, or confirming Todd Blanche as Attorney General (whose nomination Trump sent to the Senate today).

For example, the story reveals that Blanche was convinced the mortgage case against Tish James sent over by Pulte had no merit.

DOJ charged it anyway.

In July, Mr. Blanche summoned F.B.I. agents, Virginia prosecutors and senior F.H.F.A. officials to a meeting at the Justice Department to talk about the James investigation. The meeting began with a detailed presentation from F.B.I. agents, emphasizing the lack of evidence of criminality surrounding Ms. James’s mortgages.

Then Mr. Blanche declared that the evidence simply did not support a criminal case against Ms. James for either property. When Mr. Pulte’s aides tried to argue or interject, Mr. Blanche shot them down.

The agents and prosecutors on the case were encouraged to see the deputy attorney general back them up. Their optimism, however, was short-lived. Within days of the meeting, law enforcement officials were told that the White House still wanted to see Ms. James charged.

This adds to the evidence that Pulte is framing Trump’s political adversaries with garbage.

It reveals that Blanche’s office pushed the Secret Service to investigate the 8647 post in VA.

The Secret Service refused.

The morning after Mr. Comey’s post, Mr. Blanche’s deputies told prosecutors in Mr. Siebert’s office to investigate the seashells. Secret Service agents tracked Mr. Comey and his wife as they traveled from the North Carolina seashore to their home in Virginia — a level of surveillance that some agents said they felt was overkill.

Mr. Comey quickly agreed to sit down with Secret Service agents for an interview, and he insisted again that he had no intention whatsoever of threatening Mr. Trump. Given Mr. Comey’s cooperation and statements, Secret Service investigators concluded there was no point in opening a full investigation.

Mr. Blanche’s deputies disagreed and pressed both the Secret Service and the F.B.I. to pursue the case. The Secret Service is part of the Department of Homeland Security and therefore did not report to Mr. Blanche. Their agents refused to pursue the case, a decision that made it easier for the F.B.I. and prosecutors in Virginia also to say no.

It identifies exculpatory information that Comey can now insist he gets in discovery.

The last paragraph describes EDNC charging the 8647 case Secret Service had declined to pursue in VA.

In April, prosecutors in North Carolina indicted Mr. Comey over the “86 47” photo. Mr. Blanche, by then the acting attorney general, declared the seashell charges were the product of work by career agents and prosecutors. He never mentioned that other career prosecutors and agents had previously rejected the case.

Blanche’s personal involvement in both the EDVA and EDNC attempt to criminalize sea shells will presumably be a topic of Blanche’s confirmation process, potentially leavened by disclosures in Comey’s case.

The sources for this story must be all lawyer or lawyer-adjacent people (two people whose names are conspicuously absent are the WDNC AUSAs who presided over the collapse of the EDVA case and reportedly were part of the EDNC sea shell case but then left for private practice, Tyler Lemons and Gabriel Diaz). They have to know that the disclosures in this story will broaden the scope of Comey’s inevitable vindictive prosecution claim.

Comey’s deadline for pretrial motions is July 28, leaving plenty of time for Comey to work these disclosures into those filings. And if that motion is successful, then we may learn far more about the all out effort to do Trump’s bidding.

The post NYT Details Todd Blanche’s Personal Involvement in 8647ing Jim Comey appeared first on emptywheel.

It’s true Blanche came up almost a hundred times. It’s true that Bondi’s invocation of Blanche (and Stan Woodward) gives Democrats reason to demand they sit for interviews. It’s true that Blanche’s centrality in the process could make any confirmation hearing awkward.

Several invocations of Blanche are particularly interesting.

For example, Bondi told James Comer’s counsel, Jack Emmer, that Blanche was the one who made privilege determinations.

Q And who made the determination whether a document was considered to be privileged?

A Todd Blanche, while following the law.

In an Appropriations hearing that took place after Bondi’s interview but before its release, Madeleine Dean read the content of her hand transcription of an October 2009 email from Jeffrey Epstein’s lawyer to the sex predator regarding what Trump Organization attorney Alan Garten had proffered Trump would say in lieu of a deposition (this is the same document Dan Goldman raised with Bondi in a hearing and then taunted Blanche about in February). In the publicly released version, the passage was entirely redacted as privileged.

The contents differ from Trump’s public claims in three ways:

• It conceded he may have been on Epstein’s plane
• It conceded he may have been at Epstein’s house
• It twice said that Epstein was never asked to leave Mar-a-Lago

Lisa Rubin laid out how absurd redacting this passage by invoking privilege was. All the more so that it was Trump’s defense attorney Blanche (who in an earlier exchange with Dean refused to say he owed a greater duty to the victims than Trump) who decided to redact the passage.

Equally important, again in response to a question from Emmer, was Bondi’s attribution of the unsigned July 7 letter claiming there was no there there to Blanche and Kash Patel.

Q What role did you have in issuing this statement?

A This was — I did not have a role in issuing this statement. I believe this was done by Deputy Attorney General Blanche in conjunction with the FBI, I believe.

Q And, for the record, this is the July 7, 2025, DOJ and FBI joint statement.

While still deferring to Blanche, Bondi got a lot squirrelier when responding to questions from the Democratic staffer (whose name was redacted) about the same letter:

Q Thank you. With respect to that memo’s assertion that no further disclosure of files would be appropriate or warranted, do you recall who made the decision at the time that no further Epstein files should be released?

A Can you —

Q Yeah, it was just a sentence —

A — point out where you’re reading that?

Q Sure. Down at the bottom of the first page, there’s just one sentence. It says, “It’s the determination of the DOJ and the FBI that no further disclosure would be appropriate or warranted.”

A I can’t answer that, other than that was in July, and we had sought, meaning the Department of Justice, to unseal in July documents from courts in the Southern District of Florida and Southern District of New York, and that was denied, I believe, by both judges, the release of those documents.

Q If you know, would the Department have been aware of the content of the 3 million or so pages that we now have seen at the time that this memo was written in July?

A I don’t believe so.

Q Okay. Okay. So that judgment about no further disclosure of files would be warranted was made on a lesser understanding of what the files were than as we sit here today?

A Well, clearly, they did not know there were 3 million-plus — approximately 3 million pages of documents at that time.

Q As far as you know, was that July memo written and formed exclusively within DOJ and FBI, or did the White House have any role in crafting that memo?

A I don’t recall. [my emphasis]

This exchange came shortly after Bondi (unsurprisingly) refused to give details about Trump’s response when she told him he was in the files, a refusal she repeated when Robert Garcia asked her those questions.

Q The Wall Street Journal has reported that you told President Trump last May that he was in the Epstein files and that the Department did not plan to release anymore Epstein files.

Deputy Attorney General Blanche was also reportedly in that meeting. What did President Trump say when you told him he was in the files?

A I won’t discuss any conversations that I had or did not have with the President of the United States.

Q I’ll note, just for the transcript’s purposes, that I think the Department of Justice publicly confirmed the nature and scope of that meeting. So that would seem to us like something that is reasonable to discuss in this forum. But I understand your position, and I’ll move forward.

Having just been asked about telling Trump, in May, that he appeared in the files, Bondi then claimed,

• That the request to unseal grand jury materials, which happened weeks after the July 7 letter, is what preceded it
• Not to know about 3 million files held at SDNY
• Not to recall whether the White House was involved in the July 7 letter

Yeah, that’s bullshit.

Bondi also implied that Blanche approached Ghislaine Maxwell, not the other way around, offering the insanely stupid excuse that Ghislaine was a live witness, as if all the victims whom DOJ has blown off are not.

A I believe — I don’t believe who initiated it. If she reached out to us, I believe — I don’t want to speculate, but I believe Deputy Attorney General Blanche, at the time, reached out to them because there was someone, still living, in prison, who had potential information about other co-conspirators and crimes.

There’s one more reference I find important. As part of his initial questions, presumably meant to establish the least incriminating story, Emmer cued Bondi to specify that Blanche was in charge of collecting everything.

Q In relation to EFTA and the Department’s obligations thereunder, what concerns was — or, did Todd Blanche express concerns as far as releasing documents? What was he saying?

Ms. Dhillon. I’m just going to point out that you can answer that to the extent that it doesn’t reveal protected communications.

Ms. Bondi. I can say I believe everyone was concerned about protecting victims’ identities, given the 6 million pages of documents that was received and a 30-day timeline to comply with that process.

BY MR. EMMER:

Q And we’re going to talk in more detail about what was produced.

But, to start, how did the Department of Justice initially gather or collect the necessary documents or materials that complied with the Epstein Files Transparency Act?

A Can you repeat that?

Q How did the Department of Justice initially gather or collect the necessary documents or materials that complied with the Epstein Files Transparency Act?

A Well, as I stated earlier, we — the Department made motions to unseal things that were previously withheld from us by the courts and requested everything we possibly could, which is why there was an over-collection in documents, as well, from all the jurisdictions. And, again, that included the death of Epstein, Ghislaine Maxwell’s case, both of — all of Epstein’s cases in the multiple jurisdictions.

Q To the best of your knowledge, what was the process to determine which documents or materials fell under the Epstein Files Transparency Act?

A I believe we collected everything possibly out there related to Epstein, which is why there was such an over-collection as well.

Q And, again, then-Deputy Attorney General Todd Blanche was overseeing these efforts. Is that right?

A Yes. Todd Blanche oversaw the entire investigation, and he has made multiple statements and done multiple interviews regarding that. [my emphasis]

The interruption by Harmeet Dhillion, purportedly there to represent the interests of DOJ (though there was someone from the Civil Division there, as well as two people who would represent Blanche’s interests), was the first she made, reminding Bondi not to invoke “protected” communications, whatever those would be in this context. This leads into a description of the purportedly heroic efforts to get 500 attorneys to review materials that — Emmer does not mention — were purportedly reviewed already in March, before Bondi told Trump he appeared in there.

One thing Bondi did take credit for, again in response to a question from Comer’s staffer, was the letter she sent Kash on February 27, 2025 about unreviewed documents at SDNY — the one that likely led to the March review which Blanche replicated with lawyers in December and January. But then she played dumb about what happened next.

Q And pursuant to your letter, did Director Patel initiate an investigation into that [NY] field office?

A I believe he did.

Q Do you know what the results of that investigation were?

A I don’t recall.

Q Given this letter, what other steps did you take to ensure the FBI turned over any and all of the remaining withheld documents?

A I relied on Director Patel and Deputy Attorney General Blanche.

Q So you, yourself, did you ever confirm that the FBI turned over all relevant documents following this incident?

A You would have to ask Director Patel.

Given this very carefully crafted narrative, one cued up by the Majority’s staffer, I find the treatment of “duplicative” files just as important as the effort to make Blanche own this process.

Jack Emmer teed up the discussion of duplicative material in one of his most highly staged questions, where he asked Bondi why people still claim there were materials that haven’t been released.

Q And there has been public statements, I believe, that then-Deputy Attorney General Blanche had said that, at one point, there were 6 million total potentially responsive materials. Is that right?

A He did. And he has clarified that multiple times, I believe, publicly, indicating that a lot of — much of it was duplicative because it was coming from two districts and some was privileged.

And, also, he stated that some of the material had absolutely nothing to do with Epstein, Jeffrey Epstein. It was over-collection, in an effort to ensure radical transparency for the country.

Q So, to be clear, there has been a lot said and accusations that the Department didn’t produce everything. Attorney General Bondi, are there any documents remaining in possession of the Department of Justice that are required to be released pursuant to the Epstein Files Transparency Act?

A To my knowledge, they’ve all been released. To my knowledge.

Q Why do people keep asking for the files to be released then?

A The unredacted versions are also available to Members of Congress, including the duplicative material, so — and I believe that’s still available — so people can — so Congress can go in and see for themselves the 6 million pages versus why 3 million was released, and much of it was duplicative or privileged or completely unrelated to Jeffrey Epstein. [my emphasis]

Much of this discussion relies on Blanche’s repeated public claims that there were duplicative materials.

When Emmer has Bondi define what duplicative materials are, she gets one main source of the duplication wrong, and then says she does not know how many duplicative files there were; when first Dem staffers and then Dave Min asked later, she (and Harmeet) were very aggressive that this question had already been asked and answered.

Q And, again, you — I believe one class was duplicative documents. And for the record — I know you’ve been an attorney for many years, but can you just explain again what 20 qualifies as a duplicative document?

A Sure. The same document being released twice.

And that occurred, I believe, because there were documents in multiple districts within the country — specifically, I believe, the Southern District of Florida and the Southern District of New York.

Q And understanding that then-Deputy Attorney General Todd Blanche was overseeing hese efforts, did he ever brief you on how many documents were considered to be duplicative?

A Not specifically, but I believe it was approximately 3 million, I believe — oh, duplicative. No, I don’t — I’m sorry — I don’t recall how many were duplicative.

The source that Bondi gets wrong — unforgivably so, given her false claim that DOJ tried to get grand jury material released before, not after, the July 7 letter — is discovery provided to Ghislaine, the material that was unavailable in July but became available because of the Epstein Transparency Act.

A Democratic staffer addressed the significance of this as their final questions: The interviews with the woman who claimed she was raped by Trump had been improperly labeled as duplicative (just as investigative files from a woman who described Epstein boasting to Trump, “This is a good one, huh?” were improperly withheld as duplicative).

Q I’d like to ask about a woman who was interviewed by the FBI four times and who accused Mr. Epstein and President Trump of sexual misconduct.

The January 30th production contained one of her interview summaries but not the other three interview summaries. And, in those other interviews, the woman had accused President Trump of sexual assault.

The Department subsequently released those other interview notes on March 5th and said that they had been incorrectly coded as duplicative.

Do you have any understanding of how those interview summaries came to be incorrectly coded as duplicative?

A Other than Deputy Attorney General Blanche’s statements that it was, I believe he said, incorrectly labeled because they were already mentioned in a summary. So it popped up as duplicative. And then they were, in fact, put back online.

And that’s the best of my recollection from his statements.

Q Thank you. And is it your perception that, if we wanted to get more granular and try to understand what exactly happened with these documents, that Mr. Blanche would be a logical starting point?

A Well, I believe he came to this committee, and I think he answered that question. I believe he addressed that in front of this committee already.

I addressed this here and here how important this is: What happened is that all of the original copies of these documents were withheld (or, potentially, worse), but references to them were disclosed in discovery provided to Ghislaine, which is how Roger Sollenberger and others discovered the files.

Sollenberger and others first discovered this woman’s existence via several summary documents (of a report by a friend of hers of the allegation, called into FBI’s tip center; of her complaint; of allegations against famous people).

That led them to find the one 302 that got published, which matched her known lawsuit (which in turn provided details of her representation). And that, in turn, allowed Sollenberger to identify the interview reports in the discovery inventory provided to Ghislaine Maxwell in 2021, and through that, the omission of these reports (marked with pink rectangles) from the public release.

And when DOJ did release the files making explicit allegations about Trump (and, just as importantly, about threats that she attributed to Epstein), they were clearly marked not as the originals, but as the files turned over to Ghislaine in discovery.

As NPR focused in their original story on the withholding, what got released was the discovery shared with Ghislaine. Both the original release and these includes three Bates stamps, including the series — 3501.045-003, here — tied to discovery to Ghislaine, along with stamps from that production.

The Ghislaine material is the definition of duplicate material, because everything that went to her should have an original copy in the FBI’s case file.

But we didn’t get any of those originals. We still haven’t gotten those originals. We can’t be sure if the originals still exist. DOJ certainly hasn’t given us the originals, they gave us duplicates after saying these were duplicates.

I laid out a hypothesis of what went down here, and Bondi’s interview — and DOJ’s squeamishness — certainly accords with it.

Bondi did her stunt release in February 2025, thinking she was helping Trump. When it became clear everything had been released, she sent the letter to Kash about documents FBI was sitting on in NY. That led to the March FBI review — one which barely got addressed in this interview. Bondi at first denied, then (once Republicans had the floor) made a clarification confessing, then played dumb about whether that review specifically searched for mentions of Trump.

I understand the witness would like to make a clarification.

Ms. Bondi. Yes. I was asked by one of the Members of Congress —

Ms. Dhillon. Congressman Frost, I believe.

Ms. Bondi. — I believe Congressman Frost, whether I directed the President’s name to be reviewed in — to see if his name was in the documents.

I don’t believe — I know I didn’t dir- — I did not direct anyone’s name to be reviewed to see if it was in there, but it was done. Because I remember now — I don’t know the timeframe, though — but I remember being aware, of course, that his name was in it, along with hundreds — or countless — countless other individuals. And I think that list ultimately came out, as well, involving high-profile individuals.

So I am aware that his name was searched, but that was among many names that the department searched. I said “hundreds”; I’m not sure if it’s hundreds, but many, many high-profile names. And, in fact, that list was ultimately released.

But the FBI review appears to have been an attempt to both assess the exposure of Trump (and Melania, probably, but she was not mentioned once in this interview), and also to test the political value of exposing Democratic ties. Pam Bondi told Trump damning references to him were in the file in May. That led Blanche and Kash to issue the July 7 letter saying there would be no further release and, importantly, that no one was being blackmailed; remember, the woman who implicated Trump believed she was being threatened. But then, on July 17, WSJ published the birthday book story, which may be what led Blanche to (per Bondi’s testimony) reach out to Ghislaine — to prevent any more really damning stories in the WSJ. That led to three actions, all in close succession:

• On July 18, Blanche made the frivolous requests in both SDNY and SDFL to unseal the grand jury materials, eliciting court orders that had the effect of burying (temporarily) the damning testimony that ultimately would be released.
• On July 22, someone emailed a list of famous names based off the March review which — I have argued — served as the script for Blanche’s questioning of Ghislaine.
• On July 23 and 24, Blanche seemingly worked off that list, asking Ghislaine what she knew of allegations against them. Ghislaine declined to say anything damning about most anyone, including Trump, and also claimed (in response to repeated questions) to remember nothing damning from her discovery, even while making a slew of claims that conflicted with known record. Her testimony probably is not true, but the interview locked her into that testimony. As a reward for it, she was sent to Club Fed.

At this point, Blanche probably thought he had locked up the damning allegations about Trump (as well as whatever there is about Melania that remains buried under a policy redacting all women’s names as potential victims).

Then the Epstein Transparency Act not only mandated release of everything Blanche thought he had locked up for his client, but it also provided cause to release grand jury materials — the Ghislaine discovery where copies of those allegations remained.

It is still not remotely clear whether the allegations implicating Trump bearing the Bates stamps of Ghislaine’s discovery really are duplicative or not. I think it just as likely that Blanche tried to lock up the original files bearing those allegations (and, probably, a great many other 302s that victims say have not been released) via some other means, and then attempted to bury everything turned over in discovery to Ghislaine with both his interview and the frivolous grand jury request. Then, when the ETA came along and ruined that plan, someone — possibly Blanche — withheld the Ghislaine stuff based on a claim that should be true but was not in practice, that there were other copies, the originals, of those materials.

I’ve seen nothing that confirms those originals still exist.

No wonder DOJ remains so squirmy about duplicative files.

The post DOJ Remains Panicked about So-Called “Duplicative” Jeffrey Epstein Files appeared first on emptywheel.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

The post Fridays with Nicole Sandler appeared first on emptywheel.

After I posted it, several revelations made it clear the US Attorney involved, Kevin Davidson, had rushed his work, and in the process fucked up the indictment in several ways.

• An April 17 letter disclosed as part of an effort to get Todd Blanche to correct his lies revealed that SPLC had reminded DOJ that the bank at the center of false statements claims was “aware that the SPLC was the owner of those accounts”: “As the government acknowledged during our February 26 meeting, the local bank representatives—at least—were aware that the SPLC was the owner of those accounts.”
• Various lawyers had pointed out material flaws in the indictment. This April 25 Andrew Weissmann post, for example, described:
  • The Wire Fraud charges presumed that SPLC was promoting, rather than combatting, far right extremist groups.
  • The vagueness of the Bank Fraud charges suggests DOJ is covering something else, and that charge does not reflect a year-old SCOTUS precedent limiting such crimes to false, rather than just misleading, statements.
• An April 28 declaration revealed that, after SPLC corrected false information DOJ had been fed by a source (claiming SPLC had deleted its informant files), DOJ belatedly subpoenaed and SPLC complied with that subpoena on April 17, just days before the indictment was returned on April 21. SPLC turned over 14,856 records to DOJ. Presumably DOJ initially charged SPLC without reviewing this closely, if at all.
• On April 30, Jamie Raskin wrote Davidson describing that a whistleblower had told HJC that Todd Blanche flunky Aakash Singh had ordered Davidson to rush the indictment.

According to whistleblower information provided to this Committee, Associate Deputy Attorney General Aakash Singh ordered your office, the U.S. Attorney’s Office for the Middle District of Alabama, to rush through the indictment of the SPLC, despite serious concerns about the strength of the case.

So when, on May 22, SPLC asked to extend their pretrial motion deadline because DOJ was considering superseding the indictment, I thought such a superseding indictment might fix some of these substantive problems.

Before I revisit that earlier post, showing how the indictment works, I want to share the — by far — most interesting new detail in the superseding indictment.

Buried in a description about informants F-31 and 32 — KKK members who tried to leave with SPLC’s help, whom SPLC convinced to stay and inform on the Klan — there’s a discussion of motive. (Unless one of these informants is the person IDed as F-uknown in the original indictment, they are two of the only entirely new characters in it; though the vagueness of the timing and total money spent would be consistent with that earlier reference.)

iv. An SPLC employee told F-31 and F-32 that if anyone asked where the money [from SPLC] came from, they were to say they worked for Rare Books and that their job was to help college students research and write essays. The SPLC employee told them that this was for their own safety. Neither F-31 nor F-32 ever researched or wrote any essays for any students, college or otherwise.

v. Although the SPLC employee claimed F-31 and F-32 needed to be paid as Rare Books employees for their safety, donors’ money paid to them from the SPLC operating account, through the CIA account, through the Rare Books account, and onto the pay car resulted in F-31 and F-32 being put in the type of dangerous situations that F-32 sought SPLC’s help to get away from in the first place.

This language, which could have been in the information SPLC turned over on April 17, is highly exculpatory. It makes it clear that evidence shows that all the secrecy was not an attempt to protect F-31 and F-32 from SPLC donors. On the contrary, this secrecy served to protect people who agreed to help SPLC learn more about the Klan.

DOJ offers a dumb excuse — that F-31 and F-32 wouldn’t be in danger if SPLC had just helped them remove their tattoos. Except just talking to SPLC put them in danger!

The superseding indictment, then, confirms that SPLC had a different motive than the one DOJ claims. SPLC used this secrecy to keep informants safe from the extremists they were informing on. DOJ nevertheless superseded anyway, still claiming that SPLC was trying to deceive its donors.

Now, to be clear, there are new inclusions that have right wingers frothing with glee: a claim that SPLC reimbursed F-31 and F-32 for cross burning materials; language claiming SPLC softened the language describing one of their informants so he could continue to recruit; for six years, the head of SPLC intelligence and one of the informants — the same one that SPLC warned DOJ had reason to be extremely biased before they relied on his testimony — lived together in a romantic relationship, with the informant seemingly making more than the SPLC employee.

I’m not sure any of those change the basic problem: DOJ has proof that SPLC’s motive was to protect informants, not to defraud donors.

And in spite of DOJ’s attempts to clean up the problems that Weissmann identified, all it did was change the language in the indictment (perhaps in a bid to stave off one kind of motion to dismiss), without changing the underlying lack of evidence. The superseding indictment takes out the words “and misleading” to reflect the SCOTUS precedent identified by Weissmann, but these charges appear far weaker given SPLC’s representation that, in February, prosecutors admitted the bank knew these accounts belonged to the SPLC. The superseding indictment weakens their fraud claim, now accusing SPLC of omitting material facts, in addition to making materially false claims.

But it does so in an indictment that describes SPLC trying to protect informants from the far right extremists informants were informing on, rather than misleading donors.

And all that comes on top of another problem with the superseding indictment. As I laid out in this post, there are three crimes charged: the wire fraud tied to six payments made in 2023, the false statements to a bank made in 2020, and a concealment money laundering charge trying to tie the alleged lies to the bank together to the payments to informants; Weissmann describes that the latter charge, “piggybacks on, and requires the validity of, the first bucket of fraud charges.” So you gotta have SPLC lying to confuse donors, not far right extremists, and you gotta have the bank being fooled before that charge works.

This table updates the table in my earlier post, comparing which informants the indictment chooses to talk about with those actually implicated in alleged crimes. As noted, pink F-numbers are people for whom DOJ added new details, green are people who’ve disappeared, and blue are potentially new characters. Italics mark new financial or temporal data.

As with the first indictment, DOJ jumbles the descriptions of the informants (and jumbles the order used in the first indictment), making it hard to track which payments DOJ actually says amounted to wire code.

But the treatment of the six money laundering payments in the superseding indictment further undermines that SPLC was duping donors by paying actual far right extremists, because several more of them are revealed to be informants. The six recipients are:

• F-9: The original indictment claimed that F-9 “was affiliated” with a bunch of Neo-Nazi organizations. The superseding indictment not only reveals that F-9 was romantically involved with another SPLC staffer, but it makes clear that “At the direction of the SPLC, F-9 infiltrated” those Neo-Nazi organizations. [my emphasis]
• F-11: While the F-11 payment is still among the six wire fraud charges, the superseding indictment takes out language — “the SPLC funnl[ed] more than $160,,000.00 from a fictitious entity to F-11 who then sent funds to various violent extremist group leaders” — describing F-11 as a kind of cut-out, possibly paying for information from extremists who didn’t know they were tied to SPLC.
• F-35: As with the original indictment, there’s no description of what F-35 was doing, or whether they were paying for information or infiltrating a right wing group.
• F-40: As with F-35, there’s no description of who or what F-40 was, just that they got an ACH payment in 2023.
• F-42: Both indictments describe that F-42 was “the former chairman” of the National Alliance. What they don’t say is whether he was still personally participating in right wing extremism during the years he was informing for SPLC (or whether SPLC was paying someone who had left the movement as a kind of expert insider). But what they do reveal is that one of the ways he got paid was via checks (in addition to the ACH payments that cannot possibly defraud the bank).
• F-37: Unite the Right infiltrator

F-37 deserves particular attention, because it really demonstrates the fraud DOJ is engaged in. F-37 was the first person introduced in the original indictment, described unequivocally as “a member of the online leadership chat group that planned the 2017 “Unite the Right” event in Charlottesville, Virginia and attended the event at the direction of the SPLC. DOJ used F-37’s role in Unite the Right to get right wingers riled up about fedsurrection, disclaiming the very real organizing right wing extremists did to set up the Charlottesville rally.

In the superseding indictment, though, DOJ buries F-37, making him the sixth informant described. Perhaps that’s because the description now begins by admitting, “F-37 was not involved in an extremist organization before F-37 reached out the SPLC seeking employment.”

That is, F-37 — the cornerstone of the first indictment — turns out to be precisely what everyone knows SPLC always used, informants, people who got a job with SPLC working as an informant.

This is critically important because one point of this exercise has always been to claim that SPLC fraudulently juiced their fundraising with their very important Unite the Right reporting. And indeed, the superseding indictment adds language to that effect:

The “Unite the Right” rally led to massive fundraising windfall for the SPLC with open-source media reporting that the SPLC more than doubled their previous year’s reported revenue from private and corporate donations following the “Unite the Right” rally.

In reality, however, this superseding indictment confirms things worked exactly like they were supposed to. SPLC cultivated an infiltrator for three years before Unite the Right (and kept paying him for six years afterwards), and because they did that, SPLC gave donors precisely what they wanted: insight into the far right surge that coincided with Trump’s installation.

And donors paid for that.

This indictment doesn’t help DOJ save this case. What it does is corroborate the whistleblower who told Raskin that Todd Blanche’s office forced prosecutors to charge this before checking on basic things … like whether SPLC explained they were engaged in all this secrecy to protect informants, as everyone believes.

The post In Superseding SPLC Indictment, DOJ Confesses They Made a Big Mistake appeared first on emptywheel.

In spite of Blanche’s outright refusal to do what he would have to, legally, to shut down the Terrorist Slush Fund, mobs of journalists credulously wrote down his transparent disavowal as if it were true.

Do these people just ignore that paperwork governs when taking out home loans, too?

It took a day for these rocket scientists to ask why Blanche refused to put his disavowal into writing.

If only some journalists asked that question before giving Blanche the headline he craved!

But Blanche did more than bullshit Congress in hopes of staving off a prohibitions on the fund in today’s vote-a-rama on DHS funding (both Thom Tillis and Bill Cassidy are attempting to prohibit any spending on the Terrorist Slush Fund).

Towards the end of the hearing, in a second round of questioning, Glenn Ivey asked Blanche if he would appoint a special prosecutor to investigate the apparent quid pro quo pay-for-pardon Trump engaged in with Binance Founder Changpeng Zhao, citing WSJ reporting (see this article, with follow-ups here and here) describing aspects of a quid pro quo.

In response to the question, why haven’t you appointed a Special Counsel, Blanche responded,

I very much reject the idea that this looks like something. … Who he chooses to pardon is just not a problem period. And you’re saying all these things that are just not true.

Joe Morelle then followed up on Ivey’s question.

MORELLE: Is it your testimony that if somebody paid the president $1m for a pardon, that would not violate Federal law?

BLANCHE: That is not my testimony.

M: What is your testimony?

B: My testimony is that the power to pardon in our Constitution is not limited. So what I mean by that is the President doesn’t have to say why he’s pardoning

M: That’s not what I’m asking you. So if someone wrote in the memo of a check for a million dollars to the President of the United States, any President, said, “for the issuance of a pardon,” would that be a violation of Federal law?

B: Yes.

M: Potentially. Under what section of facts?

B: I think it would be a violation of the bribery law, yes.

M: Bribery law, even though the Constitution gives you unlimited power as President?

B: The person that paid the bribe. For the President himself who accepted the money, I think you would have to impeach him in that case. At least under my reading of the Constitution.

One problem with Blanche’s response is that it directly conflicts with the broad new expansion of presidential immunity that he was party to. For all the bullshit that Trump v. US invented, it specifically said you do not first have to impeach a President to investigate him.

Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. Brief for Petitioner 16. The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ibid. (emphasis added).

The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted.

[snip]

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during histerm in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.

To be sure, there are other protections for Presidential bribery that John Roberts gifted to Trump: His majority opinion ruled that you could not use the private communications of the President to prove the bribery.

Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Cf. Nixon, 418 U. S., at 706. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.3

3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020).

Anna Bower wrote an entire post on this footnote.

Nevertheless, Blanche — of all people — should be expected to adhere to the general holding of Trump v. US that Blanche’s client can be prosecuted for crimes without being impeached first.

And yet here he was saying Trump could only be impeached for selling bribes to people who help our adversaries launder funds.

The day after Blanche claimed helplessness in the face of Trump accepting bribes, Trump announced he’d nominate Blanche for the full Attorney General position.

Because everything’s a transaction for Trump.

Everything.

The post Todd Blanche Excused Bribery … and Then Trump Gave Him a Promotion appeared first on emptywheel.

Which is why I find this passage from a motion to show cause — asking Judge Emily Coody Marks to order the government to explain how DOJ’s spox came to send out a pre-return draft of the superseding indictment to journalists without the knowledge of prosecutors, and why they did so just days after Magistrate Judge Kelly Pate admonished the government to abide by rules and ethical guidelines on prejudicial statements — so interesting.

A comparison between the Word document distributed to the media by the Director of Public Affairs last night (June 2), and the ECF-stamped superseding indictment received by the SPLC’s counsel this morning (June 3), confirms that the Word document is, in fact, a draft. For example, in the Word document, ¶ 21 reads:

However, ¶ 21 of the file-stamped copy reads:

This facial difference shows that the draft Word document circulated to the media contained pre-return text that was seemingly later revised and never entered the public record. The fact that the draft superseding indictment was purposely and intentionally given to the media by DOJ’s own Director of Public Affairs herself and not the result of an unintentional mistake makes this all the more concerning.

On its face, Abbe Lowell simply offers up this passage as proof that DOJ’s Director of Public Affairs, Emily Covington, sent out a draft of the superseding indictment that subsequently got changed, which he argues may be a violation of grand jury secrecy rules and surely is prejudicial.

But this apparently very last minute change is more than cosmetic. This passage is from the section of the indictment laying out the Wire Fraud charges, which basically accuse SPLC of misleading donors about how their money will be spent. I was going to (and probably still will) comment on the change in the language, because it addresses a weakness of the original indictment that numerous people had called out: DOJ presented no evidence in the original indictment (nor did it add any in the superseding) that SPLC promised donors they would not use informants. Instead, the indictment repeats over and over that SPLC raised money promising to dismantle far right extremist groups, without telling donors that it worked to dismantle hate groups, in part, by using informants to infiltrate the groups.

Joyce White Vance compared this claimed fraud — doing stuff donors weren’t explicitly informed of — with the actual fraud that Steve Bannon engaged in with the Build the Wall Foundation, where Bannon promised not to use the money for himself but then lived large off of it.

Instead, the indictment leans heavily on fraud theories—specifically, that donors were deceived because the SPLC did not publicly explain the operational mechanics of its informant network. DOJ may find itself with egg on its face when it comes to donors’ views of how SPLC used their money. They weren’t obligated to publish a roadmap explaining exactly how they infiltrate dangerous organizations. Journalists do not disclose confidential sources. Civil rights groups tracking violent extremists aren’t obligated to expose their work, which would compromise it. This isn’t a case like the “We Build The Wall” fraud Steve Bannon and others were charged in, after they promised not to take donor money for personal use and then did.

So DOJ was on notice that this was a glaring problem in their indictment, they took the trouble to supersede the indictment — ostensibly to fix how they fucked it up the first time; indeed, they did make the indictment accord with the law in at least one other place, as CBS highlighted when first exposing this indictment (though there, as here, they don’t fix the underlying evidentiary inadequacies).

But rather than finding evidence that SPLC had set the expectation with donors that they would not fund informants (the equivalent of DOJ showing that Bannon and his flunkies made promises not to personally profit off donors’ money) prosecutors instead simply weakened what they were charging. DOJ is no longer claiming they’ll prove that SPLC made material misrepresentations, or lied. They’ll instead argue that SPLC should have told donors about all the informants but did not, an omission of fact rather than an outright misrepresentation.

And by sending out the draft indictment and bragging about it, Covington has made clear that this last minute change was really last minute. Possibly even a response to something grand jurors said.

Lowell is asking for expansive discovery on how this fuck-up happened, which he is unlikely to get.

[T]he Court should order DOJ (specifically, Acting Attorney General Blanche and, if necessary, his Public Affairs Officer) and the USAO (specifically, First Assistant U.S. Attorney Kevin Davidson and Assistant U.S. Attorney Russell Duraski, both of whom appeared on the signature block of this indictment) to show cause to explain their conduct here, and hold a hearing to conduct targeted fact-finding to determine whether to impose appropriate sanctions against those involved.

An order to show cause is necessary to identify the source and scope of the breach, to determine who had access to the draft/sealed indictment, what court and security measures were possibly breached, to whom in the media or otherwise the draft was sent, and why any of this happened.

The SPLC also respectfully requests that the Court direct DOJ and the USAO to immediately preserve all potentially relevant communications and records, including emails, messaging applications, phone logs, cloud storage, document management metadata, and media contacts, to prevent loss or destruction to aid in any fact-finding efforts by the Court.

Additionally, the SPLC asks that the Court require under seal declarations from both DOJ and the USAO setting forth: (a) the list of all persons (including nongovernment contractors) with access to the draft/sealed indictment; (b) the dates and means of access; (c) any internal communications regarding the decision to release the draft superseding indictment, including whether any consideration was given to the federal rules, the Justice Manual, and/or the Court’s Order; (d) any communications with media or third parties concerning the draft, unsigned superseding indictment before unsealing, including names of all recipients who were copied or blind copied; and (e) the safeguards employed to protect Rule 6(e) material in this case. These issues, and others, can also be explored during a show cause hearing at the Court’s discretion, at which point the Court can consider whether appropriate sanctions, or other relief, are necessary pursuant to its inherent supervisory powers as a result of this unprecedented breach.

But even before he gets there, Covington’s fuck-up calls attention to the degree to which the superseding indictment she was crowing about instead is nothing more than a cosmetic fix, cosmetics that call attention to more obvious underlying problems.

Update: In a letter in April to Aakash Singh, one of Blanche’s henchmen, Jamie Raskin mocked the premise that donors were fooled about the informants.

Even more absurdly, the indictment alleges that the SPLC made some form of misrepresentation to SPLC’s donors because it used their donations to pay these informants. But not only is it well known that the SPLC has used paid informants to infiltrate and expose these white nationalist groups, and not only is there no evidence presented in the indictment that any actual donors were misled, there is no legal requirement that the SPLC explain down to the penny how it will use donors’ money.13 Even putting aside that decisive flaw, donors could easily have found out about this program. The SPLC’s historic use of paid informants to infiltrate and weaken violent white nationalist groups is so well known that a 1996 New York Times article—a full three decades ago—noted that the SPLC had “undercover operatives” and “spies” at a white nationalist convention in the wake of the Oklahoma City bombing.14 DOJ’s legal argument seems to be that SPLC’s donors were defrauded because they could not have possibly had access to important facts … that were printed in the paper of record in this country. Even more fatal to your case, some of these allegedly defrauded donors just stated publicly that not only did they not feel misled by SPLC, but they knew of these actions, telling the press unequivocally: “We knew they were paying informants.”15 That perfectly lawful tactic was a calling card, and may have even been an attraction, to SPLC’s donors.

The post Emily Covington Breaks the Rules to Brag that DOJ Doesn’t Have the Goods against SPLC appeared first on emptywheel.

MacIntyre argues that the dominant moral discourse in contemporary America is disordered, because it is has been separated from its originating social and cultural structure. We rely on a moral discourse that we inherited from much earlier times but both we and our society are very different from the societies in which that discourse developed. Enlightenment thinkers recognized the need to justify their inherited moral structures, and strove mightily, but failed.

MacIntyre says that failure was inevitable. He explains that they were following a logical form based on the teachings of Aristotle. Aristotle taught that everything has four causes, the material, the formal, the efficient, and the final cause. The final cause is the telos, which is the goal, the end, or purpose of the thing. For example, the telos of an acorn is to become an oak tree.

Following this line of thinking, humans, as part of nature, have a telos. The argument is that morality and ethics are the structures that enable humans to move from their initial state towards their telos, that which they are formed to be. That sets up a three part sequence, the human as it happens to be, morality, and the human as it can/should be.

MacIntyre points out that this structure is the basis of theistic traditions as formalized by medieval thinkers like St. Thomas Aquinas, Aquinas used the teachings of the Catholic Church as the moral and ethical structure, and saw the salvation of the individual as the telos. He laid out a structure in which the individual a) is born in the disordered state of original sin, b) then is transformed by the moral and ethical teachings of the Church, c) into a human deserving of salvation.

The Enlightenment uprooted this thought structure, rejecting religion and thus the existence of original sin and salvation. But the thinkers still used that three part structure, inventing a human nature, and a telos, and then showing how the moral structures they’d inherited moved us from the new human nature to the new telos. But in the end this failed, because there is no single human nature, and there is no purpose other than that which we recognize for ourselves.

Many people see humans as Aquinas did: born into original sin, saved from that by the Grace of the Almighty, reformed by the moral teachings of religion, with a purpose of achieving an eternal reward. That’s not just Christians, of course, all other religions (as far as I know) begin with a theory of human nature, and offer a moral system and a telos. For those who recognize that purpose, the logic of the three part structure works. Of course, that doesn’t guarantee that a single moral structures will exist in all, but there are a lot of similarities.

Even within Christianity there are vastly different forms of morality, especially around ideas about harm to others and sexuality. For example, many Evangelical Christians say that the war on Iran is justified, and that the killing of people in the open oceans is justified. Traditional Catholics would try to apply the teachings of St. Augustine and his successors on Just War Theory, and would condemn those killings as Pope Leo XIV does.

For those who reject religion, justification of morality will require some other approach than that invented by Enlightenment thinkers. As I see it, one part of that is to devise a different structure for thinking about morality than that proposed by Aristotle and Aquinas.

The nature of our understanding

Before I take up MacIntyre’s theory of morality, let’s look at the way we think today. In this post, I discussed Jonathan Rauch’s The Constitution Of Knowledge. I’ve written several posts trying to apply the ideas in Thomas Kuhn’s The Structure Of Scientific Revolutions, here, for example. I discussed the views of the American Pragmatist Charles Sanders Peirce on the nature of truth. I also read but did not write about Daniel Kahneman’s Thinking Fast and Slow, summarized here.

Aristotle’s three part structure is an example of formal thinking. We start setting out assumptions, we reason forward, reach a conclusion, then look for evidence to see if we can verify our conclusion. We certainly do not think our starting point is absolutely true. We are always open to the possibility that our assumptions might be wrong. In fact, lack of evidence to verify the results of our reasoning is a sign that our assumptions might be wrong.

For example, we might start with the idea of natural selection, and look to see if we can find counter-examples. We don’t, which increases our confidence that we have a useful assumption. Then we reason forward and make and test predictions based on that idea, and use the results to sharpen our theory of the nature of evolution.

But that’s not what happens in our day to day lives. We work from intuitions, or unstated assumptions or just feelings, and we do things. Later we might think about the outcomes to see how our actions worked out. It’s only by trying that we can learn how to cope in our daily lives. There isn’t any reason involved, at least not formal reasoning. Life isn’t a logic puzzle.

Our moral sense works like the latter. We might try the Trolley Problem as a thought exercise, but how would that affect our behavior in a real-life getting? It might prepare us a bit, but if we were confronted by a similar problem we’d just act, and only later think. We do the same thing in thinking about aesthetics. We have standards of beauty, but we know that over time they change. We like Van Gogh’s Café Terrace at Night in Arles as the height of art at one time, but later we might prefer something more abstract, or a portrait or a still life. Our aesthetic sensibility might move from pretty to something more complex. We may never think it beautiful, but we might well learn to see that it is aesthetically pleasing.

We recognize our aesthetic sense by consciously examining our reaction to a thing. We recognize our moral sense by examining our reaction to the results of our actions. We know we have violated our morality if we feel guilty about the outcome of our actions.

No matter the subject area we use judgment, assumptions, and reasoning from assumptions for our own purposes. We do not have a telos in mind, only a goal for our action. Of course, we do share our assumptions with others, hopefully many others; and some of our goals are also shared. As I see it, this is fundamentally different from the process of Aristotle and Aquinas, as well as Kant and Kierkegaard.

I hope this distinction between formal and informal thinking will help us understand MacIntyre’s argument for his theory. He doesn’t offer formal proof. He looks for an explanation that satisfies a sense of rightness, as if he’s talking about the way we experience ourselves in the real world.

Conclusion

I do not think we can make progress without incorporating all we currently know about ourselves, including psychology, evolution, and anthropology. In his book Regime Change Patrick Deneen valorizes the wisdom of the subservient class (which is the great mass of people, not the elites). Sadly, he did not include Alaisdair MacIntyre or Michael Tomasello as contributors to human wisdom. Or Kahneman. If MacIntyre is right that the non-expert discussion is disordered, what does that say about the common wisdom?

The post We Can’t Reason Our Way to Morality appeared first on emptywheel.