The heavy-handed arrests themselves have gotten a lot of attention. Good luck to Jeanine Pirro attempting to prosecute these cases, not least because doing so would require calculating the value of a painted cover that degraded before the defendants came along. Prosecuting these cases would necessitate addressing whether Trump’s repairs did what they were supposed to, an inquiry Pirro will be loathe to do.

Sure enough, Pirro is clinging to her job after a motion to dismiss — blaming Department of Interior for DOJ’s own failures — also revealed that DOI knew the reflecting pool renovation was falling apart before Davey Hearn showed up.

I made a similar prediction about the SPLC indictment: that they would ask for proof of the way SPLC helped the FBI prevent terrorism, which had a likelihood of backfiring.

I suspect they’ll also do something that had a key role in the collapse of the case against Michael Sussmann: they can request the FBI’s own records of tips SPLC shared with the Bureau. When Sussmann got his own FBI and DOJ records, he was able to show:

• The DNS data that Durham had claimed was invented was, instead, data that the FBI itself relied on.
• Some of the things about which Durham invented conspiratorial explanations were clearly explained by Sussmann’s cooperation on the DNC investigation.
• Sussmann had provided similar tips to DOJ based on DNS traffic that Rodney Joffe had discovered.
• Joffe had a long and useful history of sharing valuable information with the FBI.

SPLC is similarly situated as Sussmann was: a long-term valued partner to the FBI, which had provided important tips that helped FBI prevent crimes, just as ADL’s tip, had it been prioritized, could have prevented the Evergreen shooting.

At the very least, such discovery will show that the FBI used SPLC tips, knowing how they were gathered, and found them important tools to prevent political violence. But given the slovenly nature of this DOJ and the rush with which Kash and Todd Blanche rolled out a gift for Stephen Miller, it is exceedingly likely there will be bigger surprises about how FBI used or misused SPLC tips in such discovery, including failing to use them to prevent serious crime, just like Kash failed to prevent the Holly shooting.

On Friday, Judge Emily Marks denied SPLC’s motion to dismiss for selective and vindictive prosecution. In spite of some commentary on the opinion, it applies precedent as it has traditionally been applied, before the President turned the entire DOJ into his weaponization machine. As such it reminds me of the opinions by two Trump appointees ruling against Hunter Biden’s twice claims of selective and vindictive prosecution. The politicization was crystal clear. But it was also exercised through prosecutors who could claim they’re not biased against the defendant.

Just a few hours after Marks released her opinion, SPLC filed a motion to compel demanding that DOJ cough up records of FBI’s past reliance on information from the organization.

The SPLC’s repeated efforts to provide federal law enforcement agencies with evidence generated by the informant program and used by those agencies used to investigate, prosecute, and, on repeated occasions, convict individual members of racist groups engaged in criminal activity are fundamentally inconsistent with the government’s core theory: that the SPLC was “engaged in the active promotion of racist groups.” Such evidence is plainly favorable to the defense and must be produced. See, e.g., Kyles v. Whitley, 514 U.S. 419, 441-43 (1995) (evidence that another individual gave inconsistent accounts of the crime in a possible effort to frame the defendant was favorable to the defense and should have been disclosed); Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (prosecution’s failure to disclose that another individual admitted to killing victim constituted suppression of evidence favorable to the accused); United States v. Severdija, 790 F.2d 1556, 1560 (11th Cir. 1986) (written recording of defendant’s statement at time of event “constitute[d] favorable and material evidence wholly consistent with appellee’s defense” and thus satisfied the Brady standard).

Despite the fact that evidence showing that the SPLC cooperated with law enforcement by providing information about the members of these groups is material and exculpatory, the government has apparently taken no steps over the past three months to search for or obtain this exculpatory information from its files or disclose it to the defense.1

1 Shortly after arraignment on the original indictment on May 7, 2026, the government produced three categories of information it deemed exculpatory: 1) a letter from SPLC donors stating that they believed the use of their funds to support the informant program was proper and consistent with their expectations; 2) a recorded interview of a bank employee which included her statement that she was fully aware that the bank accounts the SPLC opened in the names of “fictitious entities” (ECF 51, Introduction) were in fact utilized by the SPLC to protect the safety of those individuals; and 3) Bank-1’s records and email communications confirming the SPLC’s connection to the alias bank account names that were associated with the SPLC, the bank’s knowledge of that association, and its knowledge of the purpose of having the alias names on the accounts. In total, the government produced just 20 pages of supposed Brady material and none of it is responsive to the three requests at issue here.

As it describes, even before the indictment SPLC reminded DOJ of three instances where DOJ relied on information from SPLC to investigate or disrupt terrorists: An Atomwaffen extremist who was charged in Nevada, a Vanguard America member was prevented from getting security clearance and detained, and the extensive information shared in advance of Unite the Right.

An exhibit to the motion lists 10 more examples — including at least one SPLC informant that the FBI made their own informant — they’ve learned about during the investigation. These are heavily redacted, but (in addition to the three prior examples) the motion describes:

1. A presumed SPLC informant interviewed on February 23 described handing over a “rifle” from someone he was informing on and “immediately turned it over to the feds.”
2. A presumed SPLC informant met with the Feds both before and after attending a Volksfront meeting. This witness met with the Feds on May 5.
3. A presumed SPLC informant “received information from the FBI and worked undercover with Aryan Nations.” This witness met with the Feds on March 23.
4. A presumed SPLC informant tipped an FBI Agent in the Asheville office to someone stockpiling weapons. This witness met with the Feds on December 8.
5. A presumed SPLC informant, who was interviewed by the Feds on December 8 (and so is likely the same informant as appears in item 4), had contact with the Knoxville FBI office.
6. A presumed SPLC informant worked as an informant for the FBI in 2011-2012. An FBI Agent confirmed this in December 2020.
7. A presumed SPLC informant alerted the FBI to a murder-for-hire scenario (this may be the same informant as appears in item 1). This is sourced to a February 23 interview.
8. A presumed SPLC informant (or perhaps employee) engaged with two FBI agents. This person was interviewed by the Feds on March 31.
9. A presumed SPLC informant shared information with a Montana FBI Agent about the Malheur occupation. This person was interviewed by the Feds on March 31 (and so may be the same person as item 8).
10. A presumed SPLC informant served as an FBI informant. This person was interviewed by the Feds on April 17.

Remember: Back in April, SPLC had to ask Judge Marks to get Todd Blanche to stop lying about SPLC’s usefulness to the Feds, when he claimed,

There’s no information that we have that suggests that the money they were paying to these informants and these members of these organizations, they then turned around and shared what they learned with law enforcement.

Blanche mostly equivocated, but he hasn’t repeated the claim.

The FBI learned most of this information before Blanche’s April 21 comments. In one case, it is information (again, apparently about an SPLC informant the FBI itself recruited) going back to 2020.

And DOJ won’t turn the information over.

Indeed, the prosecutor on this case suggested that if Judge Marks orders DOJ to turn over this information, they’ll just declare at least some of it is classified.

In fact, after the Court issued its pre-trial scheduling Order in this case (ECF 107), Assistant U.S. Attorney Kevin Davidson emailed defense counsel and advised that, as it concerns any motion to compel, if the prosecution “[is] ordered to turn over FBI documents related to F’s that haven’t already been turned over . . . some documents will almost certainly be classified” “at a certain level.” This is the first time the government has raised the specter of classified documents possibly existing as it relates to law enforcement material involving any F’s, and would be encompassed in and by the SPLC’s document requests described in this motion.

At this point, it’s hard to tell whether DOJ is refusing to share this information because they:

• Fucked up by charging this and they’re trying to preserve the case
• Don’t want to admit to MAGAts that far right extremists are dangerous
• Consider these right wing terrorists — like the adjudicated January 6 terrorists Trump freed on his first day on the job — their allies and so really just want to make SPLC useless

And while Judge Marks’ decision on the selective and vindictive prosecution claim is solidly within precedent if not reality, withholding all the materials that SPLC would need to mount a defense would not be.

The Michael Sussmann case is not the only high profile precedent for that. As SPLC cites by referring to just one of the many Proud Boy informants who were referenced or testified in the Proud Boys’ case, “Aaron,” the Proud Boys got such information, even in a prosecution that they insist was unfair.

And yet Blanche’s DOJ insists on treating the SPLC worse than they treated the now — pardoned or dismissed — far right extremists who led the attack on the Capitol on January 6.

The post Todd Blanche Is Hiding How SPLC Warned FBI about a Murder-for-Hire Scenario appeared first on emptywheel.

Donald Trump has a pathological need to avoid being seen as he sees Jimmy Carter, a loser, someone who keeps leeching power over the course of an extended crisis.

And yet, as he keeps doing things that make that far more likely, just making shit up, everyone makes the obvious comparison with Carter’s failures.

I think a lot of the commentary has not considered that Trump has caused himself a resounding blow to his own self-image, and every time they make the comparison with 1979, that wound is renewed. At a very personal level, he will be seeking ways to not look like a loser. Which could make his decisions still more irrational.

Over and over, Trump described how, as the Venezuela operation was ongoing, he kept worrying about ending up like Jimmy Carter.

David E. Sanger

Did you watch either by video —

President Trump

I did. I was, I saw it.

David E. Sanger

What — what did that feel like? You were down at Mar-a-Lago?

President Trump

It’s like watching a movie, except you’re — it’s a little bit, you know — look, you don’t know if —

Katie Rogers

Are you worried when this is happening, while you’re watching? Or what is going through your mind?

President Trump

Yeah, I’m worried that it ends up being Jimmy Carter disaster that destroyed his entire administration.

When Sanger asked Trump if he had “studied” prior occupations, he instead wanted to talk again about Jimmy Carter — and Karoline Leavitt immediately tried to distract from with the Bunker-Ballroom.

David E. Sanger

Did you study some other occupations? Japan, Iraq, others?

President Trump

Yes, yes. I studied, I studied —

David E. Sanger

And what — what lesson did you draw from that, that we should know —

President Trump

That it’s highly risky.

David E. Sanger

— for Venezuela?

President Trump

That’s what I do.

David E. Sanger

OK, so —

President Trump

I looked at — I looked at some of the attacks. I studied the Carter attack. It was a disaster. I would have never done it that way.

David E. Sanger

You were talking about the attack. I was asking about the occupations that followed —

President Trump

You know, they had — they had a — they had a sandstorm. Did you know that? And they decided to go forward. We would go back, and let’s hit it three days later. They wanted to go forward, and they said, keep going. Helicopters don’t work well in the sand.

Karoline Leavitt

Sir, do you want to show them the renovations?

Trump didn’t take the right lessons from his study.

President Donald Trump is staring down two stark liabilities that threaten to damage his Republican Party in the midterms and to ruin his second term-legacy.

Somehow he’s maneuvered himself into a more vulnerable spot regarding Iran than any president since Jimmy Carter. As in the 1979-80 hostage crisis, the Islamic Republic is exerting political pressure that it can dial up on the US leader ahead of a national election. A week ago, Trump’s team predicted a deal to reopen the Strait of Hormuz was imminent. But Tehran, now dictating terms to the US global superpower, has imposed tough new conditions.

At the same time, Trump faces a separate but related problem at home. The war’s impact on energy prices is further souring voter perceptions of the economy. He’s entered the doom loop in which presidents and officials scan data for silver linings but voters see only indifference to their plights. Twists like Friday’s bad jobs report are untimely for the GOP with November fast approaching.

Trump has served up his own greatest fear.

The post The Jimmy Carter Talk Has Started appeared first on emptywheel.

The legal argument in this filing (inapt invocation of Trump v. US notwithstanding) might be sound. But it’ll only work if Judge April Perry buys his explanation for why his AUSAs handed her grand jury transcripts that kept the misconduct Sheri Mecklenburg engaged in hidden behind redactions. The excuse is that William Hogan, a guy with past ethical accusations that Boutros chose not to mention in his filing, was just following orders — April Perry’s orders — to provide the grand jury transcripts pertaining to how they charged a conspiracy.

Boutros claims Judge Perry can only hold prosecutors in contempt if they disobeyed her order to turn over instructions on conspiracy

Boutros explains it this way:

The only potentially applicable order in this case [for which prosecutors could be held in contempt] is this Court’s order regarding the grand jury transcripts. Yet former Defendants made a very “narrow” request for only those portions of the grand jury transcripts “pertaining to how the 18 U.S.C. § 372 conspiracy charge was explained to the Grand Jury” and any “related exchanges.” R. 118 at 1. This Court ordered the Government to provide in camera “the relevant portions of the transcripts as outlined in the motion.” R. 119. The Government undisputedly provided all those portions in the redacted transcripts. Whether the Government should have provided additional portions not requested, former Defendants have never argued the Government failed to comply with this Court’s order. United States v. Streett, 437 F. Supp. 3d 940, 952 (D.N.M. 2020) (defendant’s attempts to convince someone else to get picture of his child abuse victims and cover it up was not contemptuous because it did not violate Court’s order prohibiting him from contacting or attempting to contact victims); see also, e.g., Denver-Greeley Valley Water Users Assoc. v. McNeil, 131 F.2d 67, 70 (10th Cir. 1942) (“literal compliance” is not contempt).

Nor did the Government violate the Court’s order to turn over “any related exchanges” to the § 372 legal explanation. R. 118 at 1. “Related exchanges” do not “clearly” (Joyce, 498 F.2d at 596) include: Experienced AUSA 1’s preamble containing “vouching” (Oct. 9), statements suggesting jurors who could not deliberate without bias should leave (Oct. 16), or references to ex parte communications unrelated to the law (Oct. 23). At a minimum, the order is “ambiguous” as to those discussions, and any failure to turn those portions over was not contemptuous. In re Betts, 927 F.2d at 987.

Boutros argues that Judge Perry has no authority to punish the prosecutors, because she did not issue any order that prosecutors defied. He says the only possible contempt was the order she gave to provide the portions of grand jury transcripts outlined in defendants’ motion to compel them.*

He claims to be sure, however, that prosecutors had “undisputedly” provided all those portions; he cites nothing defendants or Perry have said where they agree.

In any case, his claim is false. Prosecutors did not fully comply with Judge Perry’s order to turn over all the legal instructions on conspiracy.

Prosecutors withheld critical instruction on leaving a conspiracy

Most importantly, prosecutors omitted a fairly critical exchange from the October 23 transcript, the session where the grand jury ultimately indicted the Broadview 6, from what they initially shared with Judge Perry; I first noted this omission this post.

As a grand juror tried to track each of the (at that point) six defendants on the two videos prosecutors were showing, they mentioned that some of the defendants seemed to walk away from the Expedition that had driven into their protest. Mecklenberg responded to that observation by claiming that walking away from a spontaneous conspiracy would not affect whether they had joined the conspiracy or not.

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 we don’t know where they are here. They could 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 thereafter, in response to the foreperson also attempting to track each of the defendants, Mecklenburg claimed it was part of the conspiracy that people moved in and out (of the frame? the crowd? I have no idea).

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.

You can argue whether Mecklenburg’s claim about conspiracy law was correct or not; I think it is (as a grand juror said of the case as a whole) a crock of shit.

But she was undisputedly responding to questions about how conspiracy law applied in this case.

These exchanges should have been included in what got shared with Perry.

Prosecutors included similar instructions

Such exchanges are precisely the kind of thing that Boutros pointed to as proof of the robust back and forth in the October 9 and 23 grand jury discussions.

The grand jurors asked the AUSAs about, among other things, whether conspiracy required forethought (id. at 22), if actions alone could show a conspiratorial agreement (id. at 23), “how far does” the scope of the conspiracy “go” (id.), and whether it was against the law to touch a law enforcement car (id. at 24-25, 30-31).

[snip]

The grand jurors also asked questions about the law, including: the necessity of them weighing in on a misdemeanor (id. at 51-52, 25-31), and if “basically . . . 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.” Id. at 55; see also id. at 9, 16, 52-54 (other questions). [links added]

All of these, which include multiple questions about whether it was illegal to touch a cop’s car (and — in one case — challenging whether defendant Cat Sharp had done so), were included, unredacted, among the materials that Hogan deemed responsive Judge Perry’s order.

Questions about whether touching the car were included unredacted.

Questions about whether people who stepped away could be charged were not.

Given the standard for inclusion Boutros is describing in his filing — and given what was actually included in the transcripts originally shared with Perry — the exchanges about leaving a conspiracy should have been included. They were not.

It could be a mistake! Indeed, but for all the other damning evidence, that should be the default assumption here.

But there’s a lot of reason to believe it was intentional.

Boutros gets touchy about the standard for entering this conspiracy

Remember what happened here: People were protesting on a public street, and the ICE goon drove his black Expedition into them. There were definitely people who responded by surrounding and pounding on the car; there was damage (including the word “pig” scratched into the car) that prosecutors not only never tied to the defendants, but never isolated as having been done by anyone in the crowd.

Prosecutors argued that the act of impeding a car that drove into protestors was a spontaneous conspiracy to obstruct the ICE goon’s work, or at least his attempt to get to work. Spontaneous conspiracies are already pushing the edge of conspiracy law (though the argument worked in the Spokane protestors’ case on the same conspiracy charge), but in this case, the “conspiracy” involved a “victim” who initiated contact with lawful protestors in public space, protestors he called “trash in the street” in a text he sent.

What constituted entering into and remaining in this spontaneous conspiracy would always have been a heated contest. In his filing, Boutros uses merely touching the ICE goon’s car — the car that drove into protestors — as the baseline for entering into the conspiracy.

There was a crowd protesting at the facility, some of whom ended up in front of and touching and/or banging on his car. Id. at 78-80. The parties disagreed about the legal significance and constitutional implications of their actions, but former Defendants have never contested that each of them at least touched the Agent’s car, and the Court has confirmed as much. R. 142 at 7-9

[snip]

Former Defendants have never disputed their presence on the scene—which was captured on publicly available video—and even agreed they touched Agent A’s car (also captured on video).

And he seems to assert, without pointing to proof, that defendants did not contest whether they did touch the car that drove into them (as noted above, in the grand jury, there was heated debate about whether Cat Sharp ever did touch the car).

In other words, Boutros tries to dodge the problematic structure of this imagined conspiracy by criminalizing touching a car that drove into you.

This kind of instruction is precisely what defendants asked for

And that’s precisely why defendants took a series of steps that led up to the sharing of transcripts with Judge Perry; it’s precisely the kind of question defendants were raising in the filing Perry invoked when issuing her order.

Boutros’ discussion of the background to defendants’ request for transcripts notes that the request came in the wake of a prior request for specifics about how DOJ was applying the conspiracy. He quotes the defendants saying their request was “narrow,” and implies that Hogan complied by saying the misconduct Perry identified when she first revealed these transcripts would not have been included in her order. But he never bothers to show that Hogan provided everything she asked for.

On January 23, 2026, former Defendants moved for clarification about which of the three means in § 372 they were alleged to have violated. R. 61. Around that time, Experienced AUSA 1 left the Office for a temporary detail in another branch of Government. R. 83, 86. On February 2, 2026, Experienced AUSA 2—who has been with the Office for roughly 40 years—entered his appearance. R. 73. A third prosecutor, AUSA 3, filed his appearance on February 13, 2026. R. 85. The Government filed a motion saying it would only proceed on the “force and intimidation” prong of § 372 and thereby narrowed Count 1 (the felony charge). R. 96. Around that time, the Government moved to dismiss two of the former Defendants with prejudice. R. 91.

The remaining former Defendants sought discovery relating to vindictive or selective prosecution. R. 94. This Court denied the motion. R. 117. [long discussion that doesn’t address the evidence of vindictiveness since released]

The next day, on April 8, 2026, former Defendants made a “narrow” request to see “Grand Jury transcripts pertaining to how the 18 U.S.C. § 372 conspiracy charge was explained to the Grand Jury” and “any related exchanges.” R. 118 at 1. Former Defendants wanted to ensure the grand jury had been instructed on all the relevant § 372 means now that the Government was proceeding on only one. Id. at 1-2, 4. Alternatively, they asked this Court to conduct an in camera review “and order disclosure of those portions of the transcripts the Court determines are necessary to allow Defendants an opportunity to develop this issue further.” Id. at 1, 12.

But Boutros leaves key context out of the request. I provided that background myself in this post. The important bits are:

• Defendants, January 23: Hey, it’s not at all clear how defendants violated 18 USC 372 or what theory of force you’re using. Can we have a Bill of Particulars? [Doc 61]
• DOJ, February 11: No. [Doc 81]
• Defendants, February 23: But bodyworn camera video you only provided on February 12 confirms what we argued in our motion: “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.” [Doc 87]
• Judge Perry, February 26: You gotta tell them which theory of conspiracy you’re using. [Doc 89]
• DOJ, March 12: Uh, we’ve decided we don’t have a case against Cat Sharp and Joselyn Walsh. [Doc 91]
• DOJ, March 13: Uh, we’ve decided we only have evidence that defendants intimidated the ICE goon who drove into them. [Doc 96]
• Several requests, including a motion for discovery on selective and vindictive prosecution, a motion to dismiss on 1A grounds, and a motion for details of what evidence from other conspirators will be used.
• Defendants, April 8: Since the government changed its theory of the case and keeps needing to think about it, we want grand jury transcripts “pertaining to how the 18 U.S.C. § 372 conspiracy charge was explained to the Grand Jury.” [Doc 118]
• Judge Perry, April 9: The government can either respond to defendants’ request, or “the relevant portions of the transcripts as outlined in the motion may be provided to the Court by 4/20/2026 in lieu of a written response.” [Doc 119]

That’s the genesis of the order that, Andrew Boutros insists, Hogan “undisputedly” responded to in full. The claim that most of the defendants responded to an Expedition driving into their protest by walking away was at the core of their request for explanation about the conspiracy charge; it was likely at the core of the reason the government dropped their case against Sharp and Walsh. And it would be at the core of any claim that defendants entered into a spontaneous conspiracy to obstruct the guy who just drove his giant SUV into their protest.

What did they do when the Expedition drove into them?

They walked away.

And yet, when grand jurors, based on their observation that some of the defendants did just that, asked Sheri Mecklenburg on the day they indicted the Broadview 6, what about people who walked away, Mecklenburg said that was all part of the conspiracy.

Again, it doesn’t matter whether Mecklenburg’s instruction to jurors was right or not: that you could be charged for conspiring to obstruct an ICE goon after he drove his SUV into your protest if your response was to walk away. If the instruction was pertinent to grand jurors’ decision to indict people who did walk away, then DOJ had to turn it over to Judge Perry.

They did not.

They didn’t do so, even though a significant part of defendants’ argument that led Judge Perry to make DOJ explain their theory of conspiracy in the first place substantially focused on how you could enter into a spontaneous conspiracy if you walked away from it.

The hybrid section of Hylton’s testimony

There’s one more piece of arguable legal instruction that Hogan withheld, revealed by the funkiness in the treatment of FBI Agent Evan Hylton’s transcript (I wrote abt the far bigger funkiness with the ICE witness’ testimony here).

As I laid out here, the court reporters treated testimony from the ICE witness as a separate transcript for both his October 16 (the sketchy one) and his October 23 testimony. That has a number of effects, two of which are important to the question of whether Hogan complied with Judge Perry’s order or whether DOJ deliberately tried to hide stuff from her.

• Funkiness aside, the ICE witness’ testimony makes up a negligible portion of the transcript that includes legal instruction; in the October 23 transcript, for example, the ICE agent’s testimony is marked by a 4-line placeholder
• The ICE witness’ testimony has its own table of contents (October 16; October 23)

These tables of contents were made after the fact and should not be considered reliable, but they do provide an extra road map for what happened with the transcript.

In the case of Hylton, however, the court reporter treated it as all one transcript. And he inaccurately described that the entire thing, pages 3 through 76, consisted of direct examination — of Hylton, is the implication — by Sheri Mecklenburg.

When Hogan redacted the October 16 and 23 transcripts, he could just ignore the separate transcripts pertaining to the ICE testimony (ignoring, of course, the 7-minute anomaly in the October 16 one). But for the October 9 transcript, he had to isolate Hylton’s testimony himself.

To make things worse, Mecklenburg prepared to discuss the law — “I would like to present the law to you” — right before she invited questions, making that work harder. Most of what ensued involved questions for Hylton. But then the foreperson premised a question, “I don’t know if this is a legal question or a question for the agent. I’m pretty sure it’s legal.” Mecklenburg immediately stopped the question and dismissed Hylton.

So there was this hybrid period. Hylton was still there but grand jurors were asking whatever they wanted to know. During it, both the agent and Mecklenburg addressed some questions about the investigation: why they weren’t presenting any of the more obviously obstructive protestors, whether there were fingerprints, what a trucker who would have witnessed the event said. The investigation is ongoing, one or another of them responded.

When Hogan redacted the transcript, he redacted everything up to the moment that Mecklenburg formally dismissed Hylton, on page 62, which would have looked perfectly reasonable to Judge Perry, since the table of contents identified everything up through page 73 as testimony. When DOJ publicly released the transcripts however, they withheld only from the moment from when Hylton was sworn — recorded on page 10, to the moment Mecklenburg described she wanted to discuss the law on page 53 for further redaction. That was released on June 9, and then the pages of Hylton’s testimony that had been redacted in the purportedly unredacted testimony, pages 10 through 53, were released on June 18. (Note, this only pertains to the public releases. I think defendants got everything on May 21.)

And the release of that hybrid section revealed an exchange that was not obviously evidentiary, and Mecklenburg answered that herself: by bullying the grand juror who asked it.

GRAND JURY: Couldn’t he have stopped?

MS. MECKLENBURG: Couldn’t he have stopped?

GRAND JURY: If he is afraid of running over people, isn’t the right thing to do to stop?

MS. MECKLENBURG: Well, didn’t you hear the testimony that he said he was afraid to stop because he was afraid they were going to break the windows and pull him out and he would be injured?

So he said — the testimony was that he said he was concerned about stopping for his own safety and he was concerned about the safety in the front. So he had to balance it. And this is not testimony now, but I would argue he did a pretty good job of balancing it because nobody got hurt.

GRAND JURY: I know.

MS. MECKLENBURG: So you want to talk 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 think when you saw that video

GRAND JURY: No. It’s a bad question —

This is a less clear-cut case than the two exchanges that included the word “conspiracy” as part of the answer. But it’s still important.

The question is important background to a question Boutros himself pointed to (I’ve marked it in red in his discussion above), does the ICE goon have the right to drive into protestors, which was shared with Perry, as well as Boutros’ insistence that anyone who was touched by the car is fair game for indictment. It’s important background to DOJ’s insistence that grand jurors who thought this whole thing was a crock of shit were biased, as opposed to offended by the notion that the ICE goon who decided to drive into a protest was a victim.

And the answer to that question was integrated into Matthew Skiba’s legal instruction and presentation for both the subsequent weeks (October 16; October 23).

Skiba certainly treated it as legal instruction.

Yet it, and the bullying Mecklenburg did, was withheld from Perry, treated as Hylton’s testimony.

The disappearing bodyworn cameras

Now’s a good time to talk about the bodyworn cameras — the ones that defendants claim showed most of them walking away from the scene of the imagined conspiracy.

There was a big to-do early in this prosecution about such things. In January, after learning that Mecklenburg cherry-picked what video from Broadview police department was relevant, defendants asked for a preservation order. The government did not object, but did claim that Mecklenburg, Skiba, and the FBI agent pulled all bodyworn video that showed the defendants. Perry signed the preservation order on January 30. But — as disclosed during pretrial motions in limine practice in May — in fact, bodyworn camera video that would be important to determine whether defendants did walk away was destroyed.

Counsel for the government repeatedly assured defense counsel that Broadview was informed of this request, and, in a letter dated December 18, 2025, further advised that the AUSAs personally went to Broadview, reviewed all the videos, and “tagged the video showing the incident and any video that morning showing any of the defendants” so that it would be saved to be included in a future discovery production. Despite assurances that the video was being preserved, defense counsel was later notified that certain Broadview police department body camera footage had been “lost/deleted.” Defense counsel were advised that this lost or deleted footage included videos that were previously tagged by the AUSAs as being relevant and material. Specifically, the AUSA assigned to the case at the time wrote to defense counsel as part of a discovery production on February 12, 2026:

Also, you will see an FBI 302 explaining that the Broadview Police Department was unable to transmit some of the videos that we tagged during our visit to the Broadview Police Department in December 2025, that the Broadview Police no longer can access those videos, and their efforts to recover those videos thus far have been unsuccessful. It is our understanding, memorialized in a 302, that Broadview Police had a new system for body-worn camera footage and they appeared to have difficulty with it at the time. However, based on our review, the videos were all repetitive of the same scenes from different officers’ body cameras, standing near each other. In reviewing the videos we were able to obtain and produce to you, it appears that these videos show the same scenes we saw on the videos that Broadview was unable to access.

[snip]

As the Court will see at trial, there will be material disagreements about exactly what happened in the moments before and during the time Agent A decided to turn his SUV into the crosswalk and into the protestors. What the government describes as “repetitive” likely shows different angles that are most likely material to Defendants’ version of events, especially because Defendants were located at different positions in the crosswalk when the SUV turned into them.

That makes Mecklenburg’s squirminess, in two instances in the transcripts, about the Broadview cops suspect. When a grand juror asked her, on October 9, whether they’d be hearing testimony from the cops who let the ICE goon through their checkpoint, Mecklenburg almost immediately turned it into a discussion about politics and jurisdiction as a way of explaining why she wasn’t calling the cops.

Perhaps most damning, the following week, Mecklenburg responded to a grand juror asking whether there was any law enforcement video by claiming that there were no cops there and so no video.

GRAND JUROR: Who took the videos? What’s the source of these videos?

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.

As with Boutros, I have no idea whether this was an intentional lie. And it is not legal instruction, so this material wouldn’t have been turned over operating on Hogan’s claim that he was just trying to follow Perry’s order. But I find it suspect that, in October, Mecklenburg affirmatively claimed that video that would prove exculpatory did not exist, and then in February, she said it had been destroyed. It makes the choice to withhold related instruction more suspicious.

Some of Boutros’ unredacted page numbers are undisputedly redacted

Finally, Boutros made another misstatement (albeit not as central to his argument).

Partly to explain how Judge Perry had notice there were more than just a few lines of the grand jury missing, Boutros provides a very contorted inventory of the pages that were redacted and omitted. (This passage is one of the reasons I went down this rabbit hole, so thanks, Andrew!) In it, he claims the page numbers clearly show what was omitted.

On April 23, the Government submitted to the Court for in camera review those portions of the transcripts “detailing the presentment of the law on the 18 U.S.C. § 372 conspiracy charge and any related exchanges.” R. 128; R. 129 (Exs. A, B, and C). The transcripts the Government tendered to the Court also contained black redactions clearly marking what was not produced and page numbers showing that the first transcript omitted all pages between 4 and 61; the second transcript omitted pages 3, 9-10, and 30-36; and the third transcript omitted pages 4, 29-40, and a few pages at the end. R. 129 (Exs. A, B, and C). These omitted pages totaled more than 80.8 As he later stated in court, Experienced AUSA 2 took responsibility for the redactions. R. 187 at 30.

8 In addition to the 80 omitted pages, the transcripts contained additional pages that were not provided to the Court because they included witness testimony and portions other than the §372 law and related colloquies. See R. 219 (Oct. 9, 2025, transcript consisted of 76 total pages); R. 220 (Oct. 16, 2025, transcript consisted of 53 total pages); R. 221 (Oct. 23, 2025, transcript consisted of 98 total pages). All three transcripts consisted of a combined 227 pages. [my emphasis]

Having spent most of yesterday trying to track what actually happened with the transcripts, the notion this was feasible without the full transcripts is bullshit, particularly given that there’s no discernible reason why some stuff was omitted and other stuff just redacted.

And in several places — contrary to Boutros’ claim — a page number was redacted, which had the effect of making it harder to understand how many pages — 15, in this case — had been removed.

This includes the passage with the question about walking away from a conspiracy.

Hogan did not follow Judge Perry’s order

Boutros is wrong. It is bluster for the US Attorney to suggest that Hogan undisputedly complied with Judge Perry’s order. There are two instances where information that prosecutors otherwise treated as instruction was omitted from what got shared with Perry, and one of those goes to the heart of the case.

To some degree it doesn’t matter whether Boutros knowingly lied when he made the claim (though a knowing lie would be further contempt). Once the question is under dispute, then Judge Perry has reason to inquire further. Especially given the stack of evidence showing that prosecutors knew the import of that passage, and otherwise withheld related information.

So while I can’t prove Boutros wittingly lied when he claimed Hogan had complied, it should be undisputed there’s reason for Judge Perry to dig further into this.

*Throughout this post, I use the word “defendants” to refer to those now exonerated. I do so because my discussion addresses prosecutors’ treatment of them from the time they were targets, then defendants, and now exonerees; I found using the term “exonerees” when discussing the grand jury discussions confusing.

Redacted transcripts:

• October 9 redacted transcript
• October 16 redacted transcript
• October 23 redacted transcript

Unredacted transcripts:

• October 9 unredacted transcript
  • Redacted 3-61; omitted 4-60
  • Evan Hylton Testimony: pages 10-53 (pages 54-61 omitted from his transcript, but included in unredacted)
• October 16 unredacted transcript
  • Redacted 2-4; omitted 3
  • Redacted 8-11; omitted 9-10
  • Redacted 25-26 (none omitted)
  • Redacted 27-28 (none omitted)
  • Redacted 29-37; 30-36 omitted
  • ICE witness: introduced 37, testimony starts 40
• October 23 unredacted transcript
  • Redacted 3-5; omitted 4-5
  • Redacted 29-41; omitted 30-39
  • Redacted 52-57; omitted 53-55
  • ICE witness: testimony begins 68

The post Undisputed! Andrew Boutros Makes a False Claim appeared first on emptywheel.

But first I want to point to a seven minute … well, let’s call it an anomaly. I’m not yet sure it’s a gap … that occurred on the second day of grand jury testimony, the day grand jurors told prosecutor Sheri Mecklenburg that her case was a crock of shit.

As I noted in this post, his explanation for how the Front Office (that is, he himself and his Criminal Chief) got involved “in realtime” doesn’t make sense. The post laid out Boutros’ weird attempt to rationalize AUSA William Hogan’s failure to inform Judge April Perry that she was mistaken in believing that the huge gaps in the grand jury transcripts they gave her were due to tech failures. Boutros pointed to things like orange lights and on buttons to justify Hogan’s lack of candor.

Boutros points to Mecklenburg’s reference to her battery running out as a tech problem. But that does’t reflect any involvement by his managers at all, or explain when they would have heard something was wrong to know to intervene.

Boutros attributes the way the transcript that day ended to yet more technical difficulties.

Agent A gave his testimony. Id. at 40-54. After another technical issue, the transcript reveals there was off-the-record discussion and “the testimony was abruptly stopped.” Id. at 54. The grand jury was not asked to return an indictment that day. Id.; R. 187 at 32. Rather, when Experienced AUSA 1 contacted members of the Front Office in “realtime” regarding the “excusing of grand jurors,” the grand jury session was “immediately called off.” R. 187 at 51.

Mecklenburg’s battery ran out.

O. Did you use your flashing law enforcement lights?

A. I did not, although I — I thought that I could.

Q. Let me stop you.

A. Okay.

MS. MECKLENBURG: I need the batteries on the recorder.

(Discussion held off the record.)

(Whereupon the testimony was abruptly stopped.)

This may well be a technical issue, but it doesn’t explain why Boutros credited himself — in his first speaking part in this case on April 21 — with calling off the grand jury sessions in “real time.”

With respect to the excusing of grand jurors that took place, which was the second time that the prosecutor sought to return an indictment, that is an issue that I was aware of in realtime. And once I became aware of it, I immediately called off that grand jury session.

Especially since he pinky swears he didn’t know of the vouching or ex parte conversations that were at issue in the October 16 grand jury appearance he claims to have called off in real time.

9 The United States Attorney was emailed a copy of the transcript from the October 9, 2025, grand jury presentation on October 14, 2025, but has no recollection of reviewing the transcript at that time, and is quite certain he did not review the transcript at that time. The United States Attorney did not receive a copy of the October 16 or October 23, 2025, transcripts until late April 2026, shortly before the Government moved to dismiss the indictment. At that time (late April 2026), the United States Attorney reviewed relevant portions of all three transcripts. Irrespective, no one ever brought the vouching or ex parte issues to the United States Attorney’s attention until late April 2026, nor was the United States Attorney aware of the vouching or ex parte issues until late April 2026.

By all appearances, that session ended because Mecklenburg’s battery ran out, not because Boutros intervened.

The 7-minute, um, anomaly may explain it.

The treatment of both law enforcement witnesses’ testimony is funky here; I’ll deal with the weirdness of the FBI witness in the main post, probably. The transcript for that guy was released in three batches: DOJ used his testimony as an excuse to redact broad swaths of the redacted October 9 transcript they first shared with Judge Perry. Then DOJ unsealed parts of it for what was publicly released as the main transcript. Then they released a partial transcript of his testimony later.

(I want to thank Biden Bus Barrister Matthew Skiba for helping me understand the anomaly with this transcript.)

With the ICE agent’s October 16 testimony (see note below for his October 23 testimony), however, DOJ released his transcript as part of the main transcript, but showed that it was transcribed separately.

That October 16 transcript includes time stamps (the October 9 and October 23 ones do not). The end of the main transcript shows him walking in for testimony at 10:04.

A notation explains that his testimony “is not included in this transcript.” End of excerpt.

The second part of the transcript shows the grand jury reconvening at 2:43PM, seemingly almost four hours and forty minutes later — an awfully long time for lunch!! — and starts with the foreperson swearing him in. (The difference in typeface size here is due to my screencap.)

The timestamp on the transcript is not far off that 2:43 start. Mecklenburg starts at 3:10.

That timestamp seems to increment as you’d expect from there, with timestamps in the margin every 20 or 30 seconds. The third to last question Mecklenburg asks him is marked as 3:33.

All that suggests he testified for almost 23 minutes.

Except that the last timestamp on his testimony is 10:11 — seven minutes after the end of the first part of the transcript. But four hours before when this session formally began.

Call me crazy but where it says Ms. Mecklenburg looks like heavier typeface.

You could attribute it to some screw up in the two grand jury transcripts except for two things: the clear identification of the second session starting at 2:43PM. And the tick tock of the timestamp in the margin that suddenly reverts back four hours. Tick tock. Tick tock. Tick to–oops! My battery died!

There are some other, um, anomalies with this transcript that I’m still unpacking.

For the moment, all I can say is that the ICE agent who drove his Expedition into a bunch of people who were peacefully protesting and then accused them of assaulting him also seems to have a time machine, in which he flew back and forth in time four hours as grand jurors called the whole thing a crock of shit.

Update: I didn’t talk about the ICE dude’s second testimony, on October 23. His testimony was handled similarly to the way it was on October 16, with a separate testimony, with its own timestamp, within the whole. His testimony appears about 45 minutes into the grand jury presentation, and it continues for 40 pages after that. Aside from the introductions, there are no timestamps on this transcript.

The post The Broadview ICE Agent’s 7-Minute Gap appeared first on emptywheel.

The post Fridays with Nicole Sandler appeared first on emptywheel.

First, WaPo describing a spat at Camp David, in which Trump laid into Whiskey Pete Hegseth because Trump’s Fox News Host didn’t tell him about the missile shortages.

President Donald Trump’s frustration over the Iran war boiled over at Camp David last week, where he demanded answers from Defense Secretary Pete Hegseth on why he had apparently been misled on extreme munitions shortages that now threaten to limit military options with Iran, two people familiar with the exchange told The Washington Post.

The encounter took place on the sidelines of his Cabinet meeting at Camp David on Friday where Trump vented at Hegseth that he thought the munitions issue “had been fixed,” according to both people familiar with the conversation, who, like others, spoke on the condition of anonymity due to fear of retaliation.

The shortages, particularly in long-range guided missiles and air-defense interceptors, have been part of the reason Trump has pulled back from launching additional massive strikes against Iran in recent days, one of the sources said.

[snip]

Back at Camp David, as he was confronted by Trump over the bare weapons stockpile, Hegseth defended himself and blamed his deputy, Stephen Feinberg, for the shortages and for not ensuring Trump was fully apprised of the issue, both people familiar said.

The exchange underscored Trump’s increasing frustration with his defense secretary, who was one of the biggest early advocates for taking military action against Iran, convincing Trump it would be a quick and relatively easy win, according to multiple officials.

The story has been updated to reflect the aftermath: Sean Parnell’s accusations that the story is not true, multiple statements affirming Trump’s support for his Crusader Secretary of Defense, Trump’s insistence both that the US has all the missiles it needs and that the people who said differently committed treason.

The especially weird part of Parnell and Karoline Leavitt’s attempt to deny the flap, though, is shouldn’t the President be angry with a Secretary of Defense who conducted the war in such a dumbass way, losing the war while blowing the missile reserves?

And in case Trump’s threats to hunt down the people who revealed the missile shortage — which has been publicly reported over and over and over — didn’t already make clear the shortage is real, midway through the week there was the Reuters story that said almost all long range missiles are gone.

The U.S. Army has used up much of its global stockpile of highly accurate long-range missiles during its five-month war with Iran, ​according to three people familiar with the data, raising concerns about the military’s readiness for future conflicts.

The missiles are principally the Army’s surface-to-surface weapons, known as Army Tactical Missile Systems (ATACMS) and Precision Strike Missiles (PrSM). The U.S. ‌has used “virtually all” of these weapons, according to two of the sources.

CNN matched with a story saying that nearly 80% of THAAD interceptors are gone.

Finally there’s the CNN story describing that Dan Caine wants to find an off-ramp from the Iran war because of the missile shortage.

Over the last few weeks, Chairman of the Joint Chiefs Gen. Dan Caine has privately made clear to other top Trump advisers that the US needs to find an off-ramp from the war with Iran — because the military options on the table to escalate the conflict could backfire and airpower alone is unlikely to achieve President Donald Trump’s stated objectives, according to three sources familiar with the matter.

“Caine is looking for an off ramp,” one of the sources said bluntly.

Caine is not alone in his view that the war has reached a crossroads. He has discussed concerns about the military options for escalating the conflict and raised the prospect of finding an off-ramp from the war with other key Cabinet officials, including CIA Director John Ratcliffe, Secretary of State Marco Rubio and Vice President JD Vance, two of the sources said.

The top US general has recently side-barred with some of those key, like-minded Trump advisers in an effort to facilitate interagency coordination and ensure they are on the same page ahead of meetings with the president. The aim has been to make clear the limitations and pitfalls of the available military options, including those that do not involve putting US boots on the ground, the sources said.

Thanks in part to the squealing Trump and Sean Parnell are doing, the buzz has focused on the recriminations, as if it is unknowable how much of a surprise this missile shortage is.

It’s not. Trump told us himself, on  February 23, five days before he started this war. As I laid out in April, after first Axios and then WaPo (including some of the journalists on this week’s story) and also — as I noted when they got subpoenaed — WSJ all warned about the missile shortages, and other risks to the Iran invasion. And that same day, Trump responded.

Mostly, Trump attempted to deny that Caine was against the war. But in the process, he basically said he would decide whether or not to go to war, not Caine.

• I am the one that makes the decision
• [I]f [Caine] is told to do so
• [H]e only knows […] how to WIN

Donald Trump told us on February 23, before he started this war, that he was reading the stories describing that he was warned, including about the missile shortage. And his response was to say that the decision was his, that if we went in spite of the warnings, the decision was his.

The post Donald Trump Told Us He Was Warned about the Missile Shortage Before He Started the Iran War appeared first on emptywheel.

In June SCOTUS decided two cases, Trump v. Slaughter and Trump v. Cook, on the power of the president to fire members of independent agencies despite tenure protections enacted by Congress. Roberts was joined by the usual five in Slaughter, but in Cook, the majority is the three Democratic appointees, Roberts and Kavanaugh. The cases are irreconcilable. In Slaughter, the Court said that Trump can fire anyone who works for any agencies without cause.

/When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.

Cook holds that Governors of the Federal Reserve Board can be fired only for cause after notice and a hearing, ignoring the holding in Slaughter, or perhaps reserving it for a later date, on the hypocritical grounds that the Solicitor General waived the Constitutional issue decided in Slaughter.

Slaughter is a case about the Federal Trade Commission, which has rule-maaking authority, the power to impose fines and the power to litigate. The Board of Governor of the Fed has broad regulatory authority over the US banking system, including the power to set monetary policy and to make and enforce rules about reserves. The Humphrey-Hawkins Full Employment Act  requires the Fed to set US monetary policy so as to minimize inflation and push towards full employment. Doing so requires enforcing a congressional mandate against private parties by forcing privately-owned banks to increase reserves.

Roberts doesn’t mention the Cook case in his Slaughter opinion, and doesn’t mention Slaughter in his Cook opinion. This article by Lev Menand is a thorough debunking of Roberts’ shoddy reasoning and poor judgment. Menand explains the history and tradition analysis seemingly adopted by Roberts which is similar to that in the absurd Bruen case. Roberts’ version of history and tradition are barely recognizable to people like Menand who know actual history.

Stare decisis and reliance

Slaughter overturns the decision in Humphrey’s Executor v. US. which held that the president could not remove commissioners of the FTC except as permitted by the law creating the agency. Both before and after it was decided, Congress created a number of agencies which are shielded from presidential attack. Roberts deals with those under the heading of reliance. But reliance is just one of the factors used to decide whether a case should be overruled, rather than modified or left alone under the rule of stare decisis.

Stare decisis is the principle that prior decisions should be followed. It’s a fundamental principle in the development of the Common Law, which is the basis for our legal system. In their confirmation hearings, Alito, Gorsuch, Kavanaugh, and Barrett all testified that they accepted stare decisis as a principle governing their jurisprudence. I assume Roberts accepts it, and am less sure about Thomas. Barrett articulated her views about stare decisis and originalism in this article:

The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases. But what happens when precedent conflicts with the original meaning of the text?

Whatever they told Senators didn’t hold up well in practice. Stare decisis just doesn’t matter to these six in politically charged cases. Cook and Slaughter are two examples, but perhaps the best known is Dobbs v. Jackson Women’s Health Organization, the case that overruled Roe v. Wade. Alito wrote:

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

The words that follow are merely the substitution of Alito’s opinion for Harry Blackmun’s. Alito doesn’t like the reasoning, thinks it is founded on a serious “error”, thinks the rule is not workable, and misstates the nature of the last two factors. It’s a simple case of changes in members of SCOTUS producing changes in outcomes, a raw exercise of power.

Roberts doesn’t address any of Alito’s first four factors as such. He says it was always a problematic case.He claims Humphrey’s Executor was wrong, on the grounds that the Constitution vests the executive power of the government in the president. That must, he claims, includes the power to fire people at will. He doesn’t explain why. He merely substitutes his pet theory of the unitary executive for two centuries of contrary and more nuanced cases. He says it’s out of step with other decisions, without mentioning that almost all of those decisions are grounded in the unitary executive theory. He doesn’t admit that the unitary executive nonsense was generated by the Federalist Society in the early 1980s.

Roberts says that appellee Slaughter’s reliance argument is based on the creation of agencies with leaders with protected tenure after Humphrey’s Executor. He claims that the rationale for that reliance is false. That fails to account for the fact that many agencies were created with this protection starting with the founding, as Menand shows. Congress didn’t have to explain its decisions to SCOTUS back then. He claims that this protected tenure gives Congress too much power, which is bad.

The underlying dangers

What happened here is that the notion of “reliance” is limited to the bare act of legislating. In the same way, in Dobbs Alito says reliance applies only a tiny number of women pregnant at the date of the opinion. Wpmen who might become pregnant later can’t rely on Roe v. Wade. That’s part of what’s really wrong in both cases. In Dobbs, the issue isn’t any specific woman’s right to control her body. The liberty acknowledged in Roe v. Wade is foundational to the way women participate in our society, and therefore we all rely on it. After Dobbs women’s ability to participate fully in our society was disrupted, and their health was endangered, as was predicted. Here’s a small example: many parents urge their daughters not to attend the college of their choice if it’s in an anti-woman state.

In the same way, allowing the president to fire people for no reason radically restructures the way our government has worked for centuries. Among other things, it means that we have no continuity in many crucial areas such as climate change and labor conditions. It means that the president can use the power of those agencies for personal gain and for punishing his perceived enemies, all without any accountability thanks to the obscene decision in Trump v. US.

Worse, Roberts doesn’t even ask himself if the tenure clause is integral to the statutory scheme. Would Congress have created the FTC or the EPA the same way if it weren’t for Humphrey’s Executor? Why doesn’t the loss of protected tenure mean that the entire statute is unconstitutional? Obviously that would be insanely disruptive, so Roberts is afraid to try to explain.

Perhaps the worst problem is the reality check. It’s bad enough that the Roberts majority has changed the balance of power and reshaped our government to suit their personal preference. But to give the power to Trump is dangerous to the nation and the world. It’s a crime against democracy.

Impeach all six.

The post The Roberts Majority Restructured Government appeared first on emptywheel.

But first I want to address new details about the use of Customs summons to obtain investigative information, which I first wrote about here.

Both Fort:

Finally, the government deliberately attempted to circumvent traditional legal avenues to pursue its investigation into Fort. For example, in applying for search warrants for Fort’s devices, media platforms, and subscriber information—i.e., all items related to her newsgathering and reporting—the government failed to alert the signing judges to the Privacy Protection Act (“PPA”), a law specifically designed to protect the press from such intrusion into core First Amendment areas. See, e.g., Order at 4, In re Search Warrant, Case No. 26-mj-206-JFD (D. Minn. Mar. 3, 2026) (ECF 4) (explaining that when “the government presented these warrants, both originally and for representment, it did not direct the Court’s attention to the Privacy Protection Act, 42 U.S.C. § 2000aa. It should have.”).

When those attempts failed, the government sought some of that same evidence (as well as other evidence) against Fort through the misuse of administrative summonses purportedly issued pursuant to 19 U.S.C. § 1509, a law pertaining to customs-related investigations. See Ex. 41; see, e.g., Ex. 43. Of course, this case has nothing to do with any customs-related offense. But the government’s use of this administrative procedure allowed it to evade any judicial review or notice to Fort of its efforts to obtain discovery against her. Ex. 41 at 3. Notably, when Fort asked the government to explain why it proceeded through this route rather than the standard procedures prescribed by the Federal Rules of Criminal Procedure, the government declined to answer. Id.; see also Ex. 42 at 2-3. [Links added]

And Lemon claim that investigators responded to Judge John Docherty’s refusal to grant warrants earlier in the investigation out of concerns for journalistic protections (I wrote about that refusal and linked the documents here), by getting the same information using summonses:

Instead of taking the simple step of informing Mr. Lemon, as suggested by Judge Docherty, the government instead withdrew the warrant application entirely. See Ex. F (Case No. 26-mj-205, ECF 9) (3/23/26 email from HSI Special Agent to MND Duty Chambers). This sudden change of course makes sense in light of recently disclosed discovery. Rather than notifying Mr. Lemon and briefing the Privacy Protection Act issue in hopes of obtaining a court-authorized search warrant, the prosecutors and agents simply circumvented Judge Docherty’s rulings (and any subsequent judicial check on their authority) by issuing a customs-related administrative summons under 19 U.S.C. § 1509. As the government well knows, summonses under § 1509 are statutorily limited to “ascertaining the correctness of any entry, for determining the liability of any person for duty, fees and taxes due or duties, fees and taxes which may be due the United States, for determining liability for fines and penalties, or for insuring compliance with the laws of the United States administered by the United States Customs Service.”

Not only did the government misuse customs summonses for a civil rights investigation (with charges brought under Title 18 administered by the Justice Department, not the Customs Service), 19 the government requested the exact subscriber information for which Judge Docherty denied a search warrant. The customs summons requests “subscriber information, subscriber names, and IP address information” associated with ten YouTube accounts, including @TheDonLemonShow, @GeorgiaFort, @MegynKelly, and @DemocracyNow. See Ex. G (19242, Customs Summons). This deliberate end-run around a judicial ruling to obtain entirely irrelevant information shows how far this administration is willing to go to punish Mr. Lemon for his reporting protected by the First Amendment. 20

19 In response to another filing, the government ties itself in knots defending the use of customs summonses for this case by claiming that “[t]his was an attempted assault on a federal officer, chargeable under 18 U.S.C. § 111, or 18 U.S.C. § 372,” ECF 589 at 14, thus they were “ensuring compliance with the laws of the United States administered by the United States Customs Service.” 19 U.S.C. § 1509. This argument is flawed for two reasons. First, the two statutes cited are general Title 18 crimes administered by the Department of Justice, not HSI, so even if these two crimes were charged, the use of § 1509 summonses would not be proper because these are not laws “administered by the United States Customs Service.” More fundamentally, this hypothetical framing does not change the fact that the investigation’s actual result is civil rights charges under Title 18 and the attempt to create a customs connection post-hoc is disingenuous (and entirely made up as there was no attempt by Mr. Lemon to engage, let alone assault a federal officer).

20 DOJ’s own media policy requires that members of the news media receive notice before DOJ seeks a third-party subpoena to obtain their records unless “such notice would pose a substantial threat to the integrity of the investigation, risk grave harm to the national security, or present an imminent risk of death or serious bodily harm.” 28 C.F.R. § 50.10(e)(1)(i). No such risk existed here, and no notice was ever provided. [links added]

The exemplar subpoena that Fort links is a January 20 summons for call records for T-Mobile; I think that actually precedes efforts to go after her phone.

Not so the summons that Don Lemon linked. On February 24, Timothy Gerber asked for data pertaining to both Georgia Fort’s and Don Lemon’s YouTube accounts. Docherty challenged them, twice. On March 23, someone at HSI withdrew them. Then on April 4, an HSI Agent named Grayson Cooper asked for the subscriber information) for several of their videos, along with videos from Democracy Now and Megyn Kelly.

It’s not clear whether this would obtain just the subscriber information for the account owners. But even if that’s all they got, it amounts to spying on Megyn Kelly to get to Don Lemon.

What may be separately, on May 28, Ned Hedley ordered Gerber and others (but not Cooper, at least not by name) to withdraw grand jury subpoenas submitted in the same period in April to YouTube and other tech companies, including GoFundMe.

Cooper also sent a Customs summons for T-Mobile records on April 12.

In any case, it is batshit insane that DOJ was still serving summons and subpoenas for basic YouTube data almost three months after this incident, by which point some of the grave problems with the Georgia Fort prosecution were already evident.

They just kept digging.

The post Harmeet Dhillon’s Goons Spied on Megyn Kelly to Get to Don Lemon appeared first on emptywheel.

Number fudging at the Department of Government Efficiency — the executive agency spearheaded by Elon Musk to ostensibly eliminate excess spending — had already been documented in a myriad of news reports. Among them, an August 2025 analysis of DOGE’s receipts by POLITICO found only $1.4 billion of its claimed $32.7 billion in contract savings was legitimate.

I’ve got a whole page of stories debunking DOGE’s false claims. This GAO report makes almost 70, and I’ve been missing a good many, such as the disclosures in court filings that show the DOGE boys basically made shit up or proved that the bad data from the DOGE boys was getting citizens dropped from voting rolls.

But this DOGE report matters.

It matters, first of all, because this is GAO, Congress’ official accounting body. This was an official attempt to test DOGE’s claims, and like all the other ones, it found a great deal of fluff and bullshit, with more claimed contract terminations remaining than actually terminated.

As many news outlets had before, it showed that many of the lease terminations Musk took credit for had been terminated during Joe Biden’s presidency — over 40% of the claimed lease terminations. And of the leases they claimed to have terminated, over 70% of claimed savings were bullshit.

My favorite detail of the lease analysis (which was always just a small fraction of DOGE’s claimed savings, but an important part because DOGE was attempting to reshape government by eliminating the physical infrastructure of it) explains that an attempted DOGE cut led to a $1.5 million increase in rent after the government rescinded the lease termination, only to have the landlord jack up the rent.

we found at least one instance when a lease identified for termination that was later rescinded led to higher costs. Specifically, officials from a tenant agency we spoke with provided an example where the building owner refused to rescind the lease termination, which forced GSA to renegotiate a new lease at a higher rate of over $1.5 million more per year than before with a 5-year firm term.

But the most important finding, in my opinion, is that GAO couldn’t replicate either Musk’s results or even his claimed accounting method. GAO could only confirm that DOGE used its claimed methodology in 27.5% of its claims. Over sixty percent it did not.

Coming from GAO, this is an actionable finding, one that makes the prospect of subpoenas for Musk and Katie Miller’s testimony next year positively delightful. They didn’t just lie about their savings, they lied about what they claimed were their savings.

And when President AOC (or whoever) takes over in 2029, Musk’s fraudulent accounting claims by themselves should be reason to revisit all the federal contracts he relies on.

This all also matters, now, because it comes at a time when the gild may finally be coming off of Elon Musk’s ability to dupe investors. SpaceX, at least, is not working out the way all Musk’s past inflated companies have, even in spite of dominating in several growth sectors.

And it matters because Musk has just renewed his sometimes unlawful effort to keep the GOP in power, at least in the Senate. Musk is going to spend $100 million dollars to attempt to ensure that Elizabeth Warren, among others, will not have the ability to subpoena him to see whether there’s a tie between his fraudulent claims about DOGE and his reliance on government contracts and regulatory forbearance.

In a report Warren did last year, she pointed to a range of regulatory agencies that had either ended enforcement actions or intervened to help Musk out (click through for the links and the many other details).

Ending enforcement actions against Musk’s businesses During the Trump Administration, federal agencies have dropped investigations into Musk companies, declined to enforce regulations against them, or foregone penalties that appear to have been warranted.

28. Dormant cases abound: reportedly “in more than 40 other federal agency matters [related to Musk], regulators have taken no public action on their investigations for several months or more.”

29. The Air Force declined to even review SpaceX for suspension or debarment as a contractor, despite concerns that Musk is repeatedly engaging with top Russian officials, including Vladimir Putin.

30. Similarly, it is unclear whether the Pentagon Office of the Undersecretary of Defense for Intelligence and Security has continued its review of Musk allegedly failing to report communications with foreign leaders, as required by DoD’s continuous vetting process.

31. The Department of Justice (DOJ) dropped its immigration case against SpaceX for discriminating against refugees and asylees in hiring.

32. The National Labor Relations Board (NLRB) took steps to settle allegations against SpaceX.

33. The Occupational Safety and Health Administration (OSHA) closed an investigation into Tesla for allegedly violating workplace safety rules.

Undercutting agencies regulating and investigating Musk’s businesses Largely guided by Musk’s DOGE, the Trump Administration has hamstrung the agencies overseeing Musk’s companies, gutting their staff, throwing sand in the gears of their operations, and embedding DOGE staff loyal to Musk.

34. Musk has direct business interests before over 70% of agencies and departments targeted by DOGE.

35. The Consumer Financial Protection Bureau (CFPB) was a top target. Musk called for “delet[ing]” the agency and DOGE attempted to fire up to 90% of CFPB staff, who would regulate X Money.

36. President Trump fired the CFPB Director and the new head of CFPB forbade the agency from doing work — after CFPB had received over 300 consumer complaints about Tesla.

Musk was orchestrating these government benefits from himself while lying about his purported purpose in having access to them all, cutting waste fraud and abuse.

Elon Musk got government benefits while pretending to hunt fraud — and his claims to have found waste and abuse are based on fraudulent accounting; he doesn’t even use his own stated methodology most of the time!!!

And all this matters because just yesterday, Trump rolled out the successor to the fraudulent DOGE receipts site, a similarly packaged Fraud Ledger.

The website shows even less rigorous methodology than the discredited DOGE one. Much of the claimed savings on there amount to labeling Trump’s decisions to roll back social spending to blue states as fraud, rather than his own decision (mirrored in the DOGE cuts to grants to Blue states now being confirmed in court filings) to simply defund his political opponents. Some of the categories tracked here are deliberately different than the ones in which fraud would normally be tracked — rather than confirmed fraudulent payments, it lists intended fraud amount. Over and over, it relies on allegations of fraud rather than verdicts of it.

The criminal charges — the one category here subject to normal standards of evidence — are buried at the end, and there are no links to the criminal cases.

And of course, it doesn’t include the long list of fraudsters Trump has pardoned, often eliminating restitution payments to the victims.

It doesn’t list Trump’s convicted, confessed, or ongoing fraud.

DOGE came in promising to reverse all the bad government accounting that Elon Musk’s fever dreams were sure existed (and existed, except in the billion dollar contracts to him).

And instead, it set new standards for bad government accounting.

It was both wasteful and fraudulent. And Trump has just moved that effort to defraud under a new name, the Fraud Task Force, which is exercising similarly fraudulent accounting.

The post Receipts! DOGE Fails an Audit appeared first on emptywheel.

ORDERED that the Government’s Motion to Dismiss the Indictment is GRANTED IN PART; and it is

FURTHER ORDERED that this case is DISMISSED, and it is

FURTHER ORDERED that the government’s request for a dismissal without prejudice and the Defendant’s request for dismissal with prejudice are HELD IN ABEYANCE, and it is

FURTHER ORDERED that the government may file a Reply to the Defendant’s Response to Government’s Motion to Dismiss the Indictment, not to exceed 15 doublespaced pages, on or before August 18, 2026; and it is

FURTHER ORDERED that the Defendant may file a Sur-Reply, not to exceed 10 double-spaced pages, no more than 7 days after the filing of any government Reply.

There are several notable aspects to this.

First, he notes that Hearn has moved for the case to be dismissed with prejudice, in part to prevent Trump from demanding it be refiled, but that as an alternative, Hearn would like the grand jury transcripts that this motion to dismiss may have been an attempt to stave off.

1 In the alternative, the defense requests that the Court grant the Defendant’s pending Motion for Disclosure of Grand Jury Minutes and Legal Instructions or conduct an in camera review of the requested materials before ruling on the Government’s Motion.

You might think the order for more briefing is just an invitation for DOJ to do what they should have done from the start, to dismiss the case with prejudice.

Except that, remarkably, Edelman has built in a chance for Hearn to respond to whatever the government files. To fact check it, perhaps. He describes how, barely three weeks after indicting Hearn, DOJ claimed it had learned new stuff, as if for the first time.

Approximately three weeks later, on July 31, 2026, the government filed its Motion to Dismiss the Indictment (“Government’s Motion”). The Government’s Motion describes in considerable detail information the government reportedly learned from the Department of the Interior after the return of the Indictment that “strongly suggest(s] that a rushed and botched installation [of the lining] by AIC, the primary contractor, led to the damage to the lining of the Reflecting Pool,” Gov’t Mot, at 18, and that has led the government to conclude that “it is difficult to attribute the widespread damage to the Reflecting Pool to vandalism, let alone to establish that fact beyond a reasonable doubt,”

Of course, Hearn has debunked all of that. They always had a photo in their possession showing that the flap of liner they accused Hearn of ripping was ripped before he got there — they just were lying to judges about where it came from and, possibly, when it was taken. They had notice no later than July 10, barely a week after the indictment, that Interior knew the earliest damage was not vandalism. DOJ’s own agents sussed out the pool on July 13, but Jeanine Pirro claimed they only checked it on on July 17 (or maybe on July 16).

Edelman has built in a sur-reply for Hearn, as if he fully expects he may be lied to, ten pages due a week after DOJ files.

Normally, judges permit or invite sur-replies if the moving party adds new details in their reply, but Edelman has built that in, and told DOJ he has built that in.

Not only that, Edelman plans to have a hearing about this. While he replaced a pretrial hearing that had been scheduled for September 11, his order says his staffers will contact the parties to schedule a hearing on the pending motions.

‘The undersigned’s chambers will contact counsel to schedule a hearing on the pending motions.

Motions, plural. Which therefore presumably includes the request for grand jury transcripts, as well as Hearn’s demand he get his phone back.

Jeanine Pirro utterly botched the game theory of this dismissal in every way. And for the life of me, I can’t imagine how she improves on her abysmal performance thus far.

Update: Disgruntled Interior staffers have taken this moment to tell Politico that Doug Burgum is evading the Federal Records Act.

[O]fficials at Interior decry what they view as a culture of secrecy. Burgum asked colleagues early on about trying to add a sensitive compartmented information facility, or SCIF, on the department’s sixth floor even though one exists just three floors below, according to a person who heard the comment. According to three staffers who witnessed it, officials have routinely shredded official documents and use disappearing Signal messages — even for mundane scheduling matters — to avoid communications being preserved, as is required by the Federal Records Act.

“They’re terrified of written records,” said one former official.

The post Judge Edelman Will Give Davey Hearn the Last Word appeared first on emptywheel.