Leni Riefenstahl, the filmmaker of the Third Reich

I only saw brief clips of the Trumpapalooza, but one of the few I saw brought me up short. From Aaron Rupar on Bluesky (with video at the link), describing a point where Trump asked the crowd to stand:

Trump: “Please right your right hand. I pledge to the greatest president in the history of the United States. That loves us so much he can’t even breath. That I will go out with my family, my friends, I’ll do it any way – I don’t care if I’m registered or not, I’m going to try to cheat like hell…”

I physically shuddered as Trump began that pledge, because it reminded me so much of another pledge to another ruler. The photo below shows the pledge, as it appears in the Evangelisches Feldgesangbuch, the protestant field hymnal for the German Wehrmacht. The same pledge appears in the Katolisches Feldgesangbuch, which was the Roman Catholic military hymnal.

The German Soldier’s Oath, August 1939

The text translates like this:

I swear by God this holy oath, that I will render unconditional obedience to the Führer of the German Reich and people, Adolf Hitler, Supreme Commander of the Wehrmacht, and that, as a brave soldier, I will be prepared to risk my life at any time for this oath.

They were published in August 1939 by the Luftwaffe, and handed out to the soldiers of the German military. Right before they invaded Poland the following month.

It wasn’t always like this. During the Weimar Republic, members of the military swore an oath to the German constitution, but after the death in 1934 of President Paul von Hindenberg, the oath changed. It became a pledge to Adolf Hitler personally, the leader of the state and the leader of the people. Shortly thereafter, civilian members of the government were made to take a similar oath.

I lived in Germany for a time as an exchange student, right after they showed the NBC miniseries “The Holocaust” on national television. It was the first time there was such a public discussion of that subject, telling the story from Kristallnacht to the ghettos and finally to the death camps and gas chambers. I had conversations with old women whose husbands, fathers, uncles, brothers, and sons had gone off to war, with middle-aged folks who were kids at the time (including men who had been part of the Hilter youth as young boys – much the way that young American boys would join the Cub Scouts – “it’s what everyone did at that age”), and especially with my classmates at school. Beyond the horrors of the Holocaust itself, the stories of the cult of personality were gripping. “How could you have allowed that to happen?” said the folks my age to their grandparents, who mainly had little answer. A few talked about being connected with the “Confessing Church” which opposed the Deutsche Christen, the nationalistic Aryan folks who tried to take over German religious life. But for most, the older folks felt embarrassed at best, if not guilty and ashamed.

“I pledge to the greatest president in the history of the United States . . .”

So yeah, I shuddered when I heard those words. Shuddered, not in surprise but in pain. Trump has made it clear that he expects this kind of unconditional obedience from the attorneys of the DOJ, and Todd Blanche has done his best to clean out those who do not share that view of the DOJ’s attorneys. Pete Hegseth, the Secretary of Excursions, has the same mentality at the DOD, and has similarly worked hard to clean house of problematic generals and admirals. When Trump rails at the Supreme Court, it carries clear anger that the justices he nominated and got onto the court are not living up to an oath demanding unconditional obedience to him personally, even if they never actually took such an oath.

Or look at how Trump reacted to Senator Mark Kelly and his former military and intelligence community colleagues, when they pointed out that in our military, we not only do NOT demand unconditional obedience, but we demand exactly the opposite. Soldiers who are given illegal orders are not just given permission to disregard these orders but are REQUIRED not to obey them. Oh, the horror, says Trump, and he sicced DOJ and the DOD to go after Kelly et al., threatening not only their ranks and their pensions, but their very liberty.

That’s how Trump views being president. Everyone owes him — not the country or the constitution or the law, but him — unconditional obedience. And look at what he demanded his obedient minions do: cheat like hell.

Here in Missouri, we’ve seen what demands for unconditional obedience can do. We’ve been dealing with more than just the gerrymandering mess, but also anti-abortion zealots, some of the worst anti-trans laws in the country, and ballot measures that would have neutered the ability of the voters to use initiative petitions to overturn the most idiotic laws the legislature comes up with.

When a leader — any leader — demands unconditional obedience, be afraid. In a religious setting, that’s when you get to Jim Jones or pedophile priests. In an academic setting, this is when you get researchers who twist their data to fit the views of their superiors rather than letting it speak honestly. In a military setting, this is when you get My Lai. In a political setting, this is when you get Adolf Hitler.

We have less than 8 weeks before the elections in November. Many of the races are between candidates who act as if they have sworn unconditional obedience to Trump and candidates who have not. I envision my hypothetical grandkids asking me “How could you have allowed that to happen?”

I don’t want to shrug my shoulders in embarrassment, or bow my head in guilt and shame. And neither should you. It’s time to keep making good trouble.

The post We Do Not Swear Unconditional Obedience appeared first on emptywheel.

Joe diGenova submitted his resignation to Attorney General Todd Blanche amid what sources described as growing frustrations from Trump and senior DOJ officials regarding his work on the so-called “grand conspiracy” investigation based out of the U.S. Attorney’s Office in the Southern District of Florida.

NYPost had the most detailed explanation of the departure: People at DOJ claimed he was slow-rolling his task, and had sidelined people Main DOJ sent down to help — though DiGenova has tried to claim his “no evidence” comment was taken (by the NYPost!) out of context.

Sources said diGenova had lost support from Department of Justice leaders and the White House amid his “grand conspiracy” investigation, with one source suggesting that the 81-year-old prosecutor and former Trump defense lawyer was “slow-rolling” indictments and getting lost down “rabbit holes.”

Asked whether he had lost focus, diGenova dismissed the accusation and shot back: “If you want indictments where there’s no evidence, you have an ethical problem.”

Another source added that the diGenova had been sharing “unrealistic expectations” for the probe with the president about what was possible and not possible, leading to a confrontation with Attorney General Todd Blanche.

John Solomon, who has been laundering false claims for use in this conspiracy theory, insists the investigation is still ongoing, with what he calls “Senior DOJ prosecutors” still working on it.

With a tiny handful of exceptions, there are no senior prosecutors left at DOJ. There are mediocre lawyers who’ve been promoted for the fealty and willingness to commit crimes in the service of Trump’s demands.

The move came a week after Aakash Singh — who played a key role in Todd Blanche’s most egregious abuses and who has made stupid demands about the timing of other investigative steps — was promoted to Principal Associate Deputy Attorney General.

The Justice Department promoted Aakash Singh, an aide responsible for the aggressive overhaul of US attorneys’ offices to meet Trump priorities, to a top leadership role, said two people familiar with the move.

Singh, 34, is now principal associate deputy attorney general, overseeing operations at DOJ field offices and the litigating divisions within department headquarters.

Singh, in his prior role as associate DAG, became known for a brash style during signature weekly meetings in which he once directed leaders of all 93 US attorneys offices that President Donald Trump is their “chief client.”

Attorney General Todd Blanche, in one of his first major personnel changes since being sworn in last month, is now handing Singh a more sprawling portfolio. Past PADAGs, including Trump’s initial pick in this administration, Emil Bove, have wielded significant law enforcement power behind the scenes by applying tough tactics — at times making unpopular decisions affecting the career workforce.

Thus far, Singh has always found some lackey to do his dirty work for him, with increasing effects on those lackey’s ethical profile. Curiously, Mike Davis, the powerful blowhard and Singh associate who often orders up investigative steps from Xitter, was silent about DiGenova’s departure.

We’ll soon see whether Singh finds another lackey to destroy their legal career in service of Trump’s grievances.

The post Time Runs Out on the Grandest Conspirator appeared first on emptywheel.

• The 302 from Mike Flynn’s January 24, 2017 interview
• Joe Pientka’s notes from the interview
• Peter Strzok’s notes from the interview

Solomon waved his hands around squealing that the notes did not match the 302 — just as Sidney Powell squealed that the notes did not match the 302 back in 2019, before Judge Emmet Sullivan wrote a 99-page opinion laying out that Powell was wrong in key respects and anyway none of it undermined the evidence that Mike Flynn lied in that interview.

But what’s really nutty about yesterday’s little propaganda escapade is, no, John, you actually didn’t release newly declassified documents, or not much, anyway. The only substantively new declassification in the documents is this passage in Strzok’s notes, which seems to reflect what they knew going in; they’re summaries of what they knew Flynn actually said on his calls with Sergey Kislyak (and would have been classified in 2019 when these notes were first released because they were FISA content); the still-redacted word, as we’ll see, is almost certainly “Egypt.”

In reality, there’s actually more new redactions than in the earlier released versions of these documents:

• 302 from Mike Flynn interview released on June 6, 2019
• Combined interview notes released May 7, 2020

(If you’ve been around a while you might remember that DOJ confused who wrote which notes in 2019, when they released these, and I had to straighten them out; just one of the services I provide!)

Mike Flynn was warned Russia would try to cultivate him

One set of new redactions serves to cover up details of Flynn’s trip to the RT gala in December 2015. In both Pientka’s notes,

And the 302,

The earlier released documents showed Flynn saying he took Mike Flynn Jr with him to meet with Sergey Kislyak before his Russian trip and that he got a DIA threat briefing before the trip.

But in both the Pientka notes released yesterday,

And the 302 released yesterday,

Those references are redacted.

I’ve got my own theory why John Solomon and Kash Patel wanted to cover those up.

The Egyptian side to Trump’s Russian corruption

I’ve got stronger theories about why they’re covering up references to Egypt in these documents.

The earlier released Pientka notes,

Strzok notes,

And 302,

All describe that “FLYNN heard through other channels that Egypt did not like” their own resolution to condemn settlers in the West Bank, and that Egypt delayed the vote themselves. These are references to Trump’s efforts — directed by Jared Kushner — to prevent or delay Egypt’s resolution condemning illegal settlements in the West Bank, a frantic effort involving a bunch of countries to undermine the foreign policy of the United States government.

After Flynn had, earlier in the interview, given a false claim about how many calls he had with Kislyak, the FBI agents asked him if there was a call in which Flynn had asked for Russian help to stall the vote, Flynn basically said, oh yeah!!! there was another call!!! but Flynn explained, nope, there was no request to Russia to help stall the vote, Egypt decided that on its own.

Flynn’s answer was a lie to cover up that:

• A request was made that Russia help Trump kill or delay the vote.
• After that request was made on December 22, Putin was consulted and chose to play ball.
• The other channel via which they learned Egypt’s plans was in a request directly to Abdel Fattah El-Sisi directly.

Flynn is pretending that Egypt just decided to kill their own resolution themselves. It was an insanely stupid claim, but he thought he’d get away with it and, really, he has.

In the Pientka notes released yesterday,

The Strzok notes,

And the 302,

Those references to Egypt have been covered up.

Here, per the intercepts released in 2020, is part of what Flynn and Kislyak actually said in a conversation on December 23, 2016.

Let me unpack this.

First, as noted, this is the December 23 transcript. As Kislyak makes clear, there was an earlier call — the day before — and this call was his response. When John Ratcliffe released this in 2020, he didn’t actually release the December 22 transcript. I’ve got my theories why he didn’t. But it is clear from context that a request had been made (at that point, Flynn and Trump were in the same place, Mar-a-Lago) on that earlier call, that Kislyak had consulted with “the highest level in Russia” — that is, Putin — and that Kislyak was conveying to Flynn that Russia was going to play ball with Trump’s effort to prevent a condemnation of illegal Israeli settlements. The “slow down” reference in the notes appears to be a quote from the earlier call, the one we don’t get.

Then there’s the hilarious part, what a fucking chump Flynn was here. Kislyak probes, hinting that he knows Egypt, who originally proposed the resolution, is not pushing for a vote. And Flynn says, Yep, we’ve been talking to them too. Then Kislyak probes, “there might be others.” And Flynn freely offers up that Trump has been talking to “a litany of countries.”

Flynn just blabbed and blabbed and blabbed, like a teenage girl gossiping, telling Russia the extent of efforts to undermine Barack Obama’s foreign policy, precisely the kind of knowledge that gives another country leverage over you. It’s bad, terrible; but imagine how much worse Steve Witkoff is when he corrupts with the Russians.

Again, Flynn’s explanation made absolutely no sense, because it was Egypt’s resolution in the first place! But Flynn was trying to cover up the separate call to el-Sisi.

And now, in turn, John Solomon is trying to sustain that cover up, which is pretty interesting given the long-running bribery investigation into whether el-Sisi gave Trump a $10 million bribe that Bill Barr finally shut down in the same period he was blowing up the Mike Flynn prosecution.

Solomon and whoever made these dumbass redaction decisions are attempting, again, to lie about how this all went down.

And it is just as dumb an effort as Flynn’s original lie because these documents are all right here and we can all read you’re trying to cover up Egypt’s role in all this.

The post Big John Solomon Expose!!!! He’s Covering Up Trump’s Egypt Corruption! appeared first on emptywheel.

Around 2:30 p.m. in Washington, on Wednesday, September 10, a group chat on Signal buzzed with some vague but unsettling news. Andy Surabian, a close friend and advisor to both the vice president and the President’s oldest son, shared a link about a shooting at a Turning Point USA event in Utah where Charlie Kirk was speaking. Charlie was their friend. The replies came in fast.

Hey Charlie, is this true? Charlie, are you OK?

The group included not only Kirk and Surabian, JD Vance and Donald Trump Jr., but several senior White House and administration officials and other influential operatives. Kirk was normally a chatty participant. Now he was silent, and his friends felt a knot in their stomachs.

Trump, true to form, at first responded with the grief of a sociopath who had lost someone useful to him.

Man. Charlie,” Trump said. “He’s such a good guy. He really helped me out in 2024. He got the youth vote.”

Then Trump turned to paranoia.

Nobody knew anything about the gunman at that stage, but Trump was already describing the assassination as a group effort, using the pronoun they. “We need to be looking at these people,” he told his aides. “They’re killing our people. They tried to kill me.”

The rest of that chapter describes how Stephen Miller used the murder as a convenient excuse to criminalize leftists (while, in several places, the authors exhibited a stunning inability to distinguish propaganda from reality themselves).

Slogging through this book made me realize something I had been puzzling: Trump’s schedule this week, starting with a stand-in event for 9/11 at which Trump told lies so shameless they might actually garner more than a day of criticism.

Trump and his flunkies paid their tribute to 9/11 three days early.

One reason he did a stand-in event is obvious. Trump will attend the Irish Open this weekend, which will be at Doonbeg, an hour from my house (I won’t be there, or here).

His presence will create significant difficulties for the event, both for security reasons and protests, which sucks for the actual golfers.

But Trump won’t be at Doonbeg on the 11th, the actual 9/11 anniversary. He’ll be in Dublin, among other things, meeting with Irish President Catherine Connolly, a leftist whose sister was snatched from a flotilla to support Gaza this spring. Taoiseach Michael Martin sounded … unconvincing when claiming this would all be very “grand” (which can have a connotation like, “bless your heart” does in the South).

The trip to Dublin is likely cover; until fairly recently he was still considering appearing at the 9/11 commemoration, until he learned he could not give a speech.

President Trump is not planning to attend a ceremony in Manhattan for the 25th anniversary of the terrorist attack on the World Trade Center, in part because he wanted to deliver a speech and the annual event has long barred remarks, according to four people with knowledge of the events.

Mr. Trump’s team had conducted advance visits at the site and had initially signaled to officials in New York and in Washington that the president intended to visit the memorial space known as ground zero, two of the people with knowledge of the events said.

[snip]

There are other considerations that led to Mr. Trump honoring the day in Washington, including that he will depart the next day for his golf course in Doonbeg, Ireland, where the Irish Open tournament will take place. Leaving from John F. Kennedy International Airport in New York City, or from Newark Liberty International Airport in New Jersey, would snarl air and motor traffic to a much greater extent than with Mr. Trump leaving from Joint Base Andrews in Maryland

But then there’s the question of the Convention, which will be in Dallas today and tomorrow. It turns out an unpopular lame duck is not a great draw for a big grift, so now the GOP is giving seats away.

The Republican National Committee is giving seats away.

Two days before Donald Trump’s midterm convention opens in Dallas, Texas, the party that promised the largest such gathering in a decade has been running a public lottery for free tickets, dangling front-row seats and VIP treatment to whoever enters.

The RNC has found itself in a tricky spot after building the event around Trump, whose approval rating is the lowest of his political career. A number of Republicans have also decided to skip the convention rather than be seen on camera celebrating an unpopular president who could drag down their prospects of re-election.

[snip]

A text message sent to party donors as recently as last week encouraged them to ask for “FREE TICKETS,” while some GOP operatives were told last week that there are still seats available for the event. Donors who click on the text message link were entered into a lottery that would also bestow a front-row seat upon one lucky winner.

And for those willing to pay, $250,000 will get a donor a seat at a roundtable with Trump —and a commemorative photo if they want to shell out another $88,600.

For $20,000, donors get to be “honorary delegates” and receive a Texas shirt and cowboy hat.

But many of the higher-profile potential attendees have already made public plans to skip the entire thing, with some balking at the $25,000 cost of attending and others annoyed at the prospect of spending days away from the campaign trail for what will amount to a multi-day rally for someone who will never appear on a ballot again.

Then there’s the problem that the unpopular lame duck has scheduled himself to compete with the first NFL football games.

Driving the news: The GOP’s Sept. 9-10 convention in Dallas will go head-to-head with the two opening games of the NFL season, which are expected to draw huge audiences each night.

• Some GOP operatives are privately incredulous that a convention designed to draw attention to the party’s fall candidates was scheduled opposite the NFL.
• They fear the GOP will struggle to persuade voters — particularly men, who powered President Trump’s 2024 comeback — to choose politics over football.

The convention’s opening night will overlap with the New England Patriots playing the Seattle Seahawks in a Super Bowl rematch. It will be on NBC and its streaming platform, Peacock. In Dallas that night, Vice President Vance will deliver the convention’s keynote speech.

• The convention’s second night will coincide with a rivalry matchup between the San Francisco 49ers and the Los Angeles Rams, which will be streamed on Netflix. Trump is the keynoter in Dallas that night.

Maggie Haberman attributed the timing conflict to inattention.

These people are busy. But they’re not too busy to consider this detail (from Axios, above).

Organizers also are planning dramatic moments, with planned commemorations to mark the one-year anniversary of pro-Trump activist Charlie Kirk’s assassination and the 25th anniversary of the Sept. 11 terror attacks.

The one way this schedule makes sense is that Trump prioritized golf and Charlie Kirk over 9/11.

That’s not remotely surprising, mind you.

But don’t be surprised if Trump goes full Horst Wessel again.

The post Trump Prioritizes Golf and Horst Wessel Over 9/11 appeared first on emptywheel.

Like many soccer/football fans after a ball ends up in the back of their opponent’s net, I had both a moment of celebration but then quickly muted it. In soccer/football, this is when the dreaded Video Assistant Referee (VAR) looked at the goal from every conceivable angle. Would it be overturned for offside, or was there a hand ball, or perhaps a foul that should have stopped play before the shot? Replays are shown on screens in the stadium and on television screens in homes, while everyone waits to see if the goal is disallowed

Today, VAR — sorry, I mean Justice Kavanaugh, said “No.” The ruling of the Missouri Supremes was vindicated, and the celebrations of beating back the gerrymandering in Missouri could begin in earnest.

On the surface, this was not a surprise. The Missouri Supremes were unanimous in overturning the gerrymandered map, and unanimous in the scathingly direct manner in which they did so. The footnotes in their opinion are perhaps the most scathing of all, especially footnote 8 near the end:

⁸ The secretary devotes a significant portion of his briefing to discussing the confusion, expense, and practical difficulties that may result from not utilizing the congressional redistricting in HB 1 for the November 2026 election. Besides being irrelevant to the secretary’s sole basis for declaring the referendum petition insufficient, these arguments are particularly misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains. In December 2025, a federal district court advised the secretary and the state that, if the referendum petition is sufficient, “the new map will be frozen until after the referendum, which could significantly disrupt the 2026 elections.” Mo. Gen. Assembly v. Von Glahn, No. 4:25-CV-1535-ZMB, 2025 WL 3514277, at *2 (E.D. Mo. Dec. 8, 2025). At the same time, the federal district court noted the secretary had the ability to declare the petition insufficient based on his argument in the federal litigation—identical to his argument now—that the Missouri Constitution does not permit a referendum as to congressional redistricting passed by the General Assembly. Id. at *4. “[T]here is no apparent reason why [the secretary] would incur the significant cost of signature verification given his stated belief that the petition is constitutionally deficient.” Id. at *2 n.2. In two separate cases in May, this Court stated it could not determine whether the congressional redistricting in HB 1 was in effect until the secretary issued his certification and the judicial review authorized by the General Assembly was complete. Maggard, 733 S.W.3d at 419-20; NAACP, 734 S.W.3d at 341 n.4. Despite this clear guidance from the federal district court and this Court, the secretary chose to delay his certification until the last possible day—August 4—and, in the meantime, utilized the congressional redistricting in HB 1 while incurring the time and expense of signature verification despite having represented to the federal district court he believed the referendum petition was constitutionally deficient. The secretary also chose to request verification of every signature, making the signature verification deadline July 28, when he could have chosen random sampling verification, with a deadline of not more than 30 days from the date the election authority received the petition from the secretary. See sec. 116.130.2. The secretary delayed certification until the last possible date and chose not to seek resolution of the constitutional question despite having been told at least as early as December 2025 he had the unique ability as secretary to do so under Missouri statutes. Given these undisputed facts, the secretary’s arguments about confusion, expense, and practical difficulties are wholly unpersuasive.

Perhaps worse, these arguments fundamentally misunderstand the status of HB 1 pending the referendum vote. HB 1 is not the law and has never been the law. There is only one valid congressional redistricting in effect—the congressional redistricting the General Assembly established in 2022. Under article III, section 52(b), HB 1 “shall take effect when approved by a majority of the votes cast thereon, and not otherwise.” Unless and until the voters approve HB 1 at the November 2026 general election, HB 1 is of no force and effect and did not take effect on December 11 because it is subject to a sufficient referendum petition filed on December 9. Regardless of any confusion, expense, or practical difficulties caused by the secretary’s delay and incorrect assumption about whether the referendum petition would be deemed sufficient, simply continuing to utilize the congressional redistricting in HB 1 does not comport with the Missouri Constitution because the 2022 map is the only map in effect.

Now, while it should not have been a surprise that Kavanaugh refused — without comment, and (per Steve Vladeck) without bringing it to the full court — the GOP request for an emergency stay, this is the SCOTUS of the Trump Era, which has bent laws and precedent all out of shape when it seems to suit them, in service to GOP policies and practices, so all bets are off.

While waiting through the weekend poring over the emergency request, I was delighted when the lawyers for Richard Von Glahn (the petitioner) filed their response. First, and immediately comforting, was seeing who Von Glahn’s appellate lawyers were. In addition to four lawyers from the local Missouri firm of  Stinson LLP, they had three from the Elias Group. Second, after working my way through their response, I was much more comforted to read the way they dismantled the legal arguments put forward by the Secretary of State and MO AG, but also laid out chapter and verse of how Secretary of State Hoskins and MO AG Hannaway tried to delay, deny, and confuse matters.

The response brief came out with guns blazing on the very first page, with a brutal first sentence that previewed what was to come in the dozens of pages that followed:

The Emergency Application for Stay does not present a real emergency, and it does not actually request a stay. Applicants, by their own admission, waited as long as possible to manufacture the present dispute over Missouri’s congressional districting map. See App. 739a (Missouri’s Attorney General publicly proclaiming that “delay works in our favor”). After the General Assembly passed HB 1, a mid-decade redistricting bill, voters timely submitted a valid referendum petition, which—by operation of Missouri law—prevented HB 1 from taking effect. As the Missouri Supreme Court explained, “HB 1 is not the law and has never been the law.” App. 12a n.8. “[T]he congressional districts the General Assembly established in 2022 remain in full force and effect for the November 2026 election.” App. 13a.

Yet Missouri’s Secretary of State waited until the last possible day—and only after he had implemented HB 1 in the congressional primary—to object to the referendum, in the hopes of running out the clock on the judiciary’s tolerance for a last-minute reversion to the 2022 districts. Now that the Missouri Supreme Court has rejected his gambit, he asks this Court to deliver him the political victory to which he was never entitled under the Missouri Constitution. This Court cannot and should not reward the Secretary’s scheme to outsmart Missouri voters, Missouri law, and the Missouri Supreme Court by granting Applicants the extraordinary relief they seek.

[snip]

If Applicants clear that hurdle, the next problem is the request itself: a stay will not provide the relief Applicants seek. What Applicants really seek is a green light from this Court to allow the Secretary to violate the Missouri Constitution by implementing HB 1, notwithstanding the Missouri Supreme Court’s ruling that HB 1 is not and never has been the status quo under Missouri law. But that extraordinary request would require an injunction—not a stay—relief Applicants have not sought, and which requires an exceptionally demanding showing Applicants cannot make. See Nken v. Holder, 556 U.S. 418, 428–29 (2009).

That was the opening, calling the Secretary of State out for abusing his office, and calling the lawyers for the defendants out on a basic legal error — or an attempt at legal misdirection — neither of which is the kind of opening the defendant’s lawyers would be happy to read. The rest of the response expands on this opening nicely. Closer to the end, on pp. 35-36, it appears to pick up the last sentence from that footnote from the MO Supremes quoted above and run with it:

IV. The equities foreclose relief for Applicants’ self-inflicted harm.
Applicants cannot meet their burden to show that they will be “irreparably injured absent a stay,” that the stay will not “substantially injure the other parties,” or that a stay serves the public interest. Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The Secretary’s asserted harm is both largely hypothetical and entirely self-inflicted. And granting relief would impose concrete injuries on the other side of the ledger: voters would be required to elect their congressional representatives in districts that never lawfully took effect, while being denied the referendum rights that Missouri’s Constitution guarantees them.
A. The Secretary manufactured the timing he now invokes as a basis for relief.
Applicants’ equitable argument centers on the assertion that implementing the 2022 districts in November would produce electoral chaos because the Secretary conducted the primary under HB 1. Appl. 32–36. But the Secretary engineered the timing he now presents as an insurmountable burden. The Secretary chose to conduct the primary under HB 1 even though both a federal court and the Missouri Supreme Court had expressly warned that HB 1’s legal status could not be determined until the referendum-certification process—including judicial review—was complete. See Mo. Gen. Assembly, 2025 WL 3514277, at *2; Maggard, 733 S.W.3d at 419–20; NAACP, 734 S.W. 3d at 341 n.4; see also App. 12a n.8. The Secretary then waited until the statutory deadline—the day the primary was already underway—to issue a certification resting on a one-sentence rationale the State had already been advancing for months. App. 599a. The Attorney General publicly acknowledged the strategic benefit of delay: “As long as the status quo is the new maps, delay works in our favor.” App. 739a.

Equity does not reward that sort of manufactured emergency. This Court applies “a strong equitable presumption against the grant of a stay” when the need for emergency relief results from a litigant’s own delay, including through “piecemeal litigation.” Hill v. McDonough, 547 U.S. 573, 584–85 (2006) (quoting Nelson v. Campbell, 541 U.S. 637 (2004)). Equitable relief likewise may be denied where a party’s timing reflects an “attempt at manipulation” of the judicial process. Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). Here, the Secretary’s manipulation of the calendar is apparent not just from the sequence of events but also from the boastful pronouncements of the Missouri Attorney General laying bare that strategy.

Shorter Missouri Supremes: You made this mess, so you can’t complain.
Shorter Von Glahn lawyers: What they said, ’cause they are absolutely right.
Shorter Justice Kavanaugh: What they all said, ’cause this isn’t even close.

And let all the people of Missouri say “Amen!”

Politically, this means the the main target of the gerrymandered map — KC’s Emanuel Cleaver II — is much much more likely to retain his seat. Similarly, less dramatic changes affecting St. Louis will make efforts to hold that seat (affected but much less threatened by the gerrymander than Cleaver’s seat) will not happen.

It’s another loss from Trump and the minions who serve him, right on the eve of the increasingly lamentable Trumpapallooza in Dallas. I can’t wait to see how Trump reacts. In the hotel hallways, Mike Johnson might be asking his colleagues for help in boxing up his stuff from the Speaker’s Office come January.

The post After Further Review, the Missouri Supremes Were Right appeared first on emptywheel.

Mayor Zohran Mamdani had just decided to cancel a $9 million contract that New York City had with the consulting giant McKinsey, and gushing praise came pouring in from commentators, operatives on the left and even some comedians.

Alex Jacquez, who works at a progressive think tank, posted on X: “Really exciting that NYC is generating operational efficiencies by in-sourcing needlessly outsourced public services and functions, building city capacity. More of this!”

Akilah Hughes, a comedian with more than 200,000 followers on X, reposted a comment suggesting that Mr. Mamdani was an improvement over his predecessor, Eric Adams, who “paid McKinsey $1.6 million to research trash cans.”

Matt Stoller, a political commentator with more than 160,000 followers on X, wrote effusively that the mayor “just cut a $9 million contract that McKinsey has with NYC. And then brags about it publicly. More please.”

Some of the online adulation, like Mr. Stoller’s post, was organic. But some of it was actually part of a campaign orchestrated by City Hall to use social media influencers to boost the image of the mayor and his young administration’s policies.

Mr. Mamdani is a master of new media, and his rise to power has been driven largely by his ease in front of a camera and his ability to harness the seeming informality of social media to connect with broad constituencies.

I continue to find it frustrating that a nucleus of lefty pundits — many of whom came up alongside me in the blogging wave — refuse to understand the current attention economy. Rather than recognizing they are a part of that economy, they fancy themselves above it, tossing instructions to their servants in the Democratic Party who, the conceit appears to be, are the only ones who have the tools, day jobs, or ethical obligations as citizens to engage in that attention economy.

Those lefty pundits spent several days whining about this article rather than doing what they could to help win an election or even, seemingly, reading it to learn how influencers — the inheritors of the mantle we as bloggers used to wield — have been instrumental in making Mamdani successful in the attention economy in a way that many DC politicians are not. A success story of sorts — the kind of success story they’re looking for. They let a story about the attention economy negatively drive their own attention in the middle of a fight with a fascism that succeeds by dominating that attention economy.

To be sure, after laying out that Mamdani wielded the attention economy superbly, starting in ¶8, NYT spun it as something corrupt, suggesting (falsely) that a PR campaign misused public funds, implying that using Signal, by itself, defied transparency, and insinuating a $175,000 salary for the person who is a key reason Mamdani is successful is too much. It is a shitty article, but not among the top ten most hostile NYT articles targeting Mamdani.

Much of the rest is the kind of article that NYT used to write about us when we came up as bloggers, a threat to their monopoly of the means of narration. We were not sufficiently independent, they said. They don’t understand how we’re funded, they complained. Some of this was and remains hostile gatekeeping from a media under threat from newcomers, as Emilia Rowland, the women being paid $175,000 to help make progressive policies successful insinuated in a comment buried in (roughly) ¶47 and ¶48 of the story.

When asked whether the city has created a code of ethics for its engagement with influencers, Ms. Rowland suggested that traditional media might be in more need of tighter ethical guidelines.

“Is there a recommendation for disclosures from legacy media?” she said, adding that working only through “channels with diminishing reach” might mean failing to reach New Yorkers about important city services.

Notably, for reasons I’ll return to, NYT’s article came out on September 4, five days after WaPo published its own story about how a group of influencers who enthusiastically support Whiskey Pete Hegseth had been doing undisclosed work for the Pentagon, the element of corruption that NYT invented by insinuation for a story about Mamdani. We’ll come back to that.

Before I got a chance to write my own post about the NYT influencer story, Don Moynihan wrote this absolutely spectacular post on it. His story started by explaining why the idea of a news story reporting on the the success of the Postal Service could only appear in the Onion. He provided three reasons why:

• Negativity bias: The media covers failure much more than it covers success. Loss aversion means that humans are more emotionally aroused by stories of loss rather than gain, failure rather than success, scandal rather than honest competence. In other words, the media focuses on failure because that is what, as consumers, we click on.
• Independence: Media don’t want to be seen as the lapdog of politicians, so tend not to uncritically accept good news stories. I’m not going to publish your press release!
• A bias toward theater: People like stories. Stories that involve colorful characters, human stakes and theatrical tropes, such as deception and conflict, are more compelling. And so media coverage of government reflects such stories, and down-weights other factors that are harder to humanize, such as administrative systems, or structural factors, even if those these factors are often important, as they are when it comes to managing government. Really great writers manage to tell stories about government that incorporate structure while using relatable characters, explaining the stakes, and detailing emotionally arousing conflicts. But sometimes, reporters on a deadline simply do not cover stories that lack the aspects of theater, and focus on the opportunities that do.

Having provided those three reasons (but not yet dug into them), he first laid out Mamdani’s success at selling the nuts and bolts of successful implementation — the equivalent of bragging about how well the Postal Service is doing, but instead focusing on potholes and basketball hoops. He then reviewed the NYT story, showing the lengths it went to to make the reliance on influencers look corrupt. “It is not until paragraph 20 that the reporters clarify that the Mayor’s office does not actually pay the influencers.” Then, brilliantly, Moynihan went back and looked how the NYT covered the very same story, about Mamdani cutting a McKinsey contract, as compared to how NYT covered Mamdani’s hiring of McKinsey partner Anthony Shorris.

Let’s go back to the primary example the story gave, because I think it would have been useful if the reporters grappled with it a bit more. The Mamdani administration cut $9 million in McKinsey contracts as small part of a relatively impressive effort to balance the budget. So how did the New York Times cover this story? I found two mentions of it in their coverage, both of which were passing references in larger stories:

• From May 1, in a story titled “What We Know About New York’s Proposed Tax Increases”: “Mr. Mamdani has already begun to explore slashing roughly $3 billion in expenditures, like consulting contracts with companies that his base despises, like McKinsey, and a rental-assistance program called City FHEPS that he once championed.”
• And from March 23, under the headline “Mamdani Now Plans $1.3 Billion in Cuts in Programs That He Favored”: “Mamdani vowed to cancel New York City’s contracts with McKinsey and other private companies.”

So, the McKinsey contract cancellation was mentioned barely at all by the New York Times, in two stories with relatively unfavorable faming (Mamdani hiking taxes and abandoning programs he favored).

Given this context, working with influencers makes a lot more sense. The Times did not see this story as much of a priority. Of course, the Times is not obliged to cover this topic, but when Mamdani appointed a former deputy Mayor and McKinsey partner to his administration that was the primary subject of two separate stories rather than an afterthought, and mentioned in a third story about his efforts to reassure the business community.

I doubt that Mamdani communicated his hire of a McKinsey partner to his influencers, but it is not clear to me why this is inherently more newsworthy for the Times than his cancelation of contracts with McKinsey. I don’t think the contract cancelation is simply populist point-scoring, but reflects a theory of governance that is substantive, and considers structural aspects of state capacity.

This was brilliant media criticism — a demonstration of how media genres drive and silence certain kinds of stories (the kind of thing I’ve written academic articles and delivered conference talks on).

Moynihan then put on his Public Policy professor hat and (in a Substack post, which phenomenon is itself worth contemplating) explained why the decision to cut the McKinsey contract reflected a theory of governance that could have a real positive impact; click through for that part. Moynihan did the same analysis for a second Mamdani initiative — sort of a reverse DOGE — and explained how that got treated as a boring story, too, even by lefty pundits on Bluesky.

The New York Times did not cover the announcement of the new office.

Some local news covered it, basically reprinting the press release. The other coverage came from outlets working on tech and government, for whom it was a big story. If you are a political advisor concerned about the Mayor generating good headlines, this is a pretty sparse return on his efforts.

I posted about this on BlueSky which is about as liberal and pro-Mamdani space you could wish for. And still, many of the replies argued that the creation of PIT Crew “just not much of a story”; “It feels like a paragraph in a story about the budget.” “A news story can only happen once the PIT crew is something more than a budget line, at which point there will be people to interview and actions to record.” Or that the media should not just cover press releases.

For the reasons I outlined above, I think this is wrong. The story is substantively important example about the model of governance Mamdani is pursuing. If you needed a hook Mamdani creating a tech office in the aftermath of DOGE provides a hook (I provide an example below). His tech team involves some of those displaced by DOGE, who have some pretty impressive achievements that provide a human interest angle.

Of course, DOGE itself was made sexy because the trillionaire troll made it so, often by stoking conspiracy theories designed to undermine trust in government.

After pointing out how hard it is to get even very sympathetic people, like Bluesky pundits, to magnify good news, Moynihan then laid out the 18 stories one or another (or both together) of the NYT journalists had covered, including three on Mamdani’s conflict with Netanyahu, demonstrating the stories — many far more hostile to Mamdani than a story about his influence economy success — NYT chooses to cover.

It was a superb takedown of the limits to legacy media and, because of those limits, the gap in communication that exists where successful leaders will — must! — seek to rebuild trust in government.

You can’t have successful government if the only stories that get told are intentionally negative. But the question is, by whom.

Moynihan then ended with a very gentle scold about how media should be able to tell the good news about government like it tells the bad.

One downside of negativity bias in media coverage is that it has fed a corrosive mistrust of government, which has fueled anti-government forces who then justify that mistrust with mismanagement. We very much need a skeptical media to hold government to account and journalists are doing essential work in that department right now. And big promises of government improvement should invite real investigation of success. But we also need them to tell us when government is working well and trying to do better. Reporters don’t have to become influencers to embrace a little bit of positivity bias.

I would join this scold and note that the same is true of the blogger generation pundits. When Ezra Klein first did a long post on Joe Biden’s frailties only to be followed by a second when Biden did step down, I argued that the guy who got his start explaining the intricacies of policy — the guy who got where he is now by explaining how good Barack Obama’s policies were, as the influencers (and Matt Stoller, who also came up in that blog generation) are now doing for Mamdani — would have done far more for democracy and the Democratic Party in 2024 if he had been doing the same for what were remarkably successful Joe Biden policies. Joe Biden was a failure as President because in a much more intense attention economy, he didn’t have what Mamdani does: a way to tell his very good story. And yes, his age and frailty made all that much harder but that doesn’t excuse Ezra for ignoring those very good stories he is uniquely qualified to tell, to instead observe from on high and toss directions, as if they were coat check tickets, to Democratic operatives.

Joe Biden didn’t tell his story in part because the blogger generation pundits now, for the most part, see their own role (paid or not) very differently, and especially don’t seem understand that they can use their social media platforms to stomp all over Democrats or to combat Trump or even to magnify good things Democrats do that lefty pundits repeatedly confess they’re oblivious to, such as multiple strands of efforts to combat Trump’s corruption, a story which many of them complain is not being told.

Not being told by someone else, they always mean.

Meanwhile, as all this was going down, over on Xitter, a parallel meltdown was playing out. As I noted here and as Bulwark described in all its delectable hilarity, far right troll turned senior State Department official, Sarah Rogers, tried to feed far right troll Jennica Pounds (better known as Data Republican) a bullshit attack on disinformation experts. She fucked up in her effort to seed disinformation about disinformation experts!! That led to Pounds’ self-exposure as a secret troll for Whiskey Pete Hegseth. As a bunch of other far right trolls rushed, in unison, to defend Pounds’ ethical failures (or, alternately, to parrot Sean Parnell’s false claims that WaPo had broken the law by telling its readers something China and Iran already know — that US forces are stretched dangerously thin because of the means by which Hegseth is losing the Iran war), one of the journalists those trolls were trying to jail reported that a number of them had secretly been on DOD’s payroll.

WaPo’s story is the counterpart story to the original NYT story (but preceded it by five days). Here, known influencers were secretly working for DOD.

The Pentagon has secretly installed several conservative military veterans with large online followings in government roles, declining to disclose their assignments as they amplify Defense Secretary Pete Hegseth’s viewpoints and attack those who scrutinize the Trump administration, according to people familiar with the matter and corroborating material.

At least some of the influencers have been assigned to civilian roles that could lead to changes in policy, the people familiar with the matter said. Like others, they spoke on the condition of anonymity because of the sensitivity of the issue.

Neither the Pentagon nor those involved have disclosed the government roles despite the Trump administration’s claims that they are running the most transparent Defense Department ever. [my emphasis]

They weren’t paid to be trolls. They were paid to do policy work, as Thomas Anderson, who is best known as Cynical Publius, justified to WaPo his lack of transparency that he was on the DOD payroll for something else.

“At no time have I ever received any compensation of any kind from any government source of any kind for anything I write or have ever written on X or in any magazine or other source,” Anderson wrote.

The self-inflated Publius has been on a meltdown worthy of a Hegseth stan ever since, misrepresenting how his real name has been discoverable and complaining over and over and over and over that journalists did journalism, in the process revealing to taxpayers what America’s adversaries can discover by watching where US aircraft groups sail.

It’s pretty hilarious stuff.

Another of the trolls, Kurt Schlichter, tried to defuse his exposure by suggesting the WaPo said something it didn’t.

Let’s examine the lessons we can draw about regime media through the lens of how Dan Lamothe and Tara Copp of the Washington Post decided to write a story about what I, @RobManess, and Tom @CynicalPublius Anderson did for the Department of War. The problem for the Washington Post is that what we were doing for the Department of War was boring – three retired colonels with extensive civilian experience did a review of the military war college system to try to help modernize it and make it better at producing future senior officers. Yawn.

The story was sexy because we were all, as the Washington Post acknowledged, Massively Influential Conservative Influencers™, but that was it. So they had to jazz it up by insinuating that we were brought on board to “amplify Defense Secretary Pete Hegseth’s viewpoints and attack those who scrutinize the Trump administration.” That was false.

Schlichter claimed the WaPo said they were brought in to amplify Whiskey Pete’s lies. The WaPo, instead, said they did so “as they” amplify Whiskey Pete’s lies.

But no one denies they were (or had been, until days before) on the Pentagon payroll without disclosing it, all while repeating Whiskey Pete’s lies.

And thus far, it might be a lesson in comparative use of influencers. Whereas Mamdani reaches out to influencers to celebrate wonky policy decisions, Whiskey Pete reaches out to them to undermine trust in journalism or (in the case of Sarah Howard) to attempt to inflame scandals over packaged bullshit. That’s actually a really instrumental lesson about how we move forward, if we are to be successful. The shitty NYT story was useful for highlighting how Mamdani is succeeding in building his support among New Yorkers, even while doing boring things like replacing missing basketball hoops.

Except for this.

In the period when NYT was “interview[ing] more than a dozen influencers who have worked with Mr. Mamdani’s team and [reviewing] dozens of videos and portions of influencer group chats” for a story about Mamdani, someone — presumably someone else than the two journalists on the Mamdani story — at NYT was deciding that the equivalent story about Whiskey Pete, except, in that case, the influencers were getting paid (albeit to do something else), was not newsworthy.

NYT’s selective decision to chase some influencers and not others is an editorial choice, one that says as much about bias — the political bias NYT attempts to disavow with its scolding about ethical guidelines — as the other far more hostile NYT stories about Mamdani.

But it doesn’t have to stop at NYT.

Yes, NYT is biased and also hostile to Mamdani generally. But the same rules about telling bad stories applies to all of us who can influence politics, especially those of us graced with significant platforms.

The way the world is right now — the rise of fascism — owes a great deal to changes in the attention economy. There are cracks in the far right attention economy, as government employed trolls faceplant in one or another way. But there really is a lesson to move forward.

And some of that really does has to do with being willing to tell good stories.

The post The Snowflakes and Petals of Influence NYT Chooses to Ignore appeared first on emptywheel.

I wrote about the existence of a sealed filing in them here; I wrote of new signs of abuse exposed in the filings here. Links to all the filings are here.

We wait now, to see whether Comey will break new ground in combatting Trump’s wholesale weaponization of DOJ. Comey is the best bet to establish a broader legal standard that might rein in Trump’s worst attempts to politicize DOJ.

Where the fight to save rule of law is

What Trump has done in his second term is find a series of vulnerabilities in US law and exploit them to give his authoritarianism the patina of legality.

The Supreme Court ruled that no one can stop Trump from stealing $1 billion from taxpayers and using it to destroy the White House and replace it with a bunker, because no one has standing. Ras Baraka has no recourse after ICE goons kidnapped him and Trump’s personal lawyer, playacting as US Attorney, lied to excuse it, because Bivens and Westfall offer no recourse. LaMonica McIver is not entitled to speech and debate protection because the tussle that ensued as ICE kidnapped Newark’s Mayor happened while ICE stalled McIver’s congressional oversight of the Delaney facility. These decisions, while understandable from a legal perspective, carry alarming implications going forward, not least that Stephen Miller’s army of goons could kidnap opposition politicians with impunity.

Similarly, thus far at least, after prosecutors get caught fabricating cases against Trump’s adversaries, as they did with the Broadview 6, Davey Hearn, and Mohamed Jama, the government maintains that (as with Mayor Baraka), the victims get no recourse except legal fees, if even that. They don’t get visibility into how this happened, a confession the DHS or NPS goons fabricated their case, and discovery on how Trump’s DOJ keeps framing his adversaries only to have the case collapse after months of legal fees. DOJ argues they can keep doing this, over and over and over again. There are cases (most notably the Eric Adams case, the fake IRS settlement, the Guatam Adani case, and the unexpected refusal by Carl Nichols to dismiss the Steve Bannon prosecution) where judges are refusing to let DOJ corruptly dismiss cases without explaining their own corruption. Victims who have been framed by Trump’s DOJ are still trying to obtain some kind of justice for having been framed.

That’s why Jim Comey’s bid to dismiss his second (of what is likely to be at least three) indictments Trump ordered up to make an example of the former FBI Director, the guy who refused to “let [rule of law] go” at Trump’s bidding back on February 14, 2017, matters.

Selective prosecution is not a tool fit to combat Trump’s wholesale weaponization of DOJ

Trump is trying — indeed, has had some success — in hiding behind the shitty precedents on politicized prosecution to repurpose DOJ to punish his adversaries. For example, his and Republicans’ bid to prosecute Hunter Biden off of a doctored gun purchase form and the kind of tax dodging Roger Stone also engaged in succeeded because two (Trump-appointed) judges said that the direct intervention from the President didn’t matter; all that mattered was the motive of the prosecutors who made the charging decisions. That success continued to the prosecution of the SPLC.

That success did not extend to Kilmar Abrego, an undocumented Salvadoran immigrant whose courage inspired citizens to fight back; Abrego did succeed (at least for now — Trump is appealing) in arguing his prosecution was vindictive.

Important legal precedents don’t necessarily arise in the cases of people you’d otherwise recognize as heroes.

Comey is attempting to do something somewhat more ambitious than even Abrego’s attorneys managed — to pin a selective prosecution claim to Trump’s animus itself, a claim that is at once obvious but also unprecedented in the narrow existing precedents of selective prosecution.

Comey’s first attempt at making this argument in EDVA (MTD, response, reply) last year was never adjudicated. Lindsey Halligan’s disqualification mooted that argument and her apparent failure to actually get an indictment would have destroyed the investigation next.

This attempt is substantially the same, bolstered by even more ridiculous charges and even more abuse to get them. But, coming as it does ten more months into Trump’s authoritarian rampage, it comes amid a more ambitious statement of the unitary executive.

And behind all that — as US Attorney Andrew Boutros made explicit in the Broadview 6 case — is a new theory of power, based in SCOTUS’ Trump v. US opinion: not just that the President can order up general and specific prosecutions, but because SCOTUS sanctioned that power, defendants can’t scrutinize Trump’s role in that process.

And that’s why Jim Comey’s bid to dismiss his prosecution for the way Trump ordered it up matters.

• MTD vindictive and selective prosecution
  • Appendix of Trump’s complaints
• DOJ Response
  • Ellis Boyle affidavit
• Comey Reply

To be sure, no judge has endorsed Boutros’ alarming theory. But that theory is likely to be first scrutinized in Comey’s case (the Broadview 6 have delayed their filing on what should happen twice; it is currently due on September 15).

Jim Comey has a ridiculously easy claim that Trump weaponized all of DOJ against him

That’s true because ten years of mean tweets document Trump’s fury that Jim Comey refused to drop the investigation into why Trump’s National Security Adviser was trying to undermine sanctions imposed in response to Russia’s election assistance for Trump. That catalog has gotten 17 pages longer in just the 11 months since Trump first charged Comey! As Comey’s initial brief notes, there’s no question why this happened.

The current record shows a clear causal link between President Trump’s animus and the prosecution of Mr. Comey. This is thus the rare case in which a defendant can “prove an improper motive” and a causal connection “with direct evidence.” Wilson, 262 F.3d at 314. Accordingly, Mr. Comey has established that his prosecution “was motivated by actual vindictiveness,” and the indictment must be dismissed. Id. at 316.

It is breathtaking how explicitly the campaign against Comey is an effort to criminalize any effort to protect the US against Russian interference.

Plus, with Comey, the flopsweat desperation of actually charging him in the seashells case — the Secret Service’s attempt to retroactively declare 8647 a threat until it became clear how common the phrase was, the illegal surveillance followed by the seemingly deliberate snooping in Comey’s privileged communications, the increasingly long chain of attorneys hired and fired just to find people willing to criminalize posting a picture of seashells — all of that demonstrates how the effort to make an example of Jim Comey has corrupted DOJ from top to bottom.

Moreover, federal officials acted irregularly across the course of this investigation. Immediately after Mr. Comey’s post, the Secret Service changed its policy to newly treat “86 47” as a threat; Secret Service agents were also ordered to conduct unlawful surveillance of Mr. Comey and share their interview notes with the President. See supra pp. 8-9. When the Secret Service declined to open a full investigation, the DOJ instructed the FBI to pick up the baton, which Director Patel eagerly did. See supra p. 10. The FBI acted irregularly, too. When the FBI applied for search warrants in March and May 2026—long after the social media post—those applications distorted the facts of the case. See Concurrently Filed Mot. to Suppress & Memo. in Support. The government also failed to install effective screens for attorney-client privilege, resulting in the seizure of communications between Mr. Comey and two of his longstanding attorneys. See Fitzgerald Aff. ¶ 40. The suspect timing and conduct of this prosecution—and the events that catalyzed it—support the conclusion that some motive besides legitimate prosecutorial interests drove the decision. Here, the inference is clear: the newly installed political officials in the DOJ strove to accomplish what their predecessors could not, namely, effectuating the President’s desire to punish Mr. Comey.

Even just having a judge write a memo laying out that this is wrong would be an important step in reining in DOJ.

But Comey, if his small law firm of exceptionally good lawyers is successful, could do more.

How to use unitary executive against weaponization

As I’ve alluded, the existing precedents on politicized prosecution suck. The decisions of three Trump-appointed judges that Trump’s explicit intervention in criminal cases did not make them unlawful — Maryellen Noreika in Hunter’s Delaware gun case, Mark Scarsi in Hunter’s Los Angeles tax case, and Emily Coody Marks in SPLC — were not outliers.

To change that for others you’re going to need to go back to first principles: that wielding DOJ as a weapon the way Trump has is a violation of due process and equal protection.

That’s how Comey’s motion to dismiss (as with his earlier one submitted in EDVA) starts: by arguing this goes back to basic constitutional principles.

The indictment must be dismissed under two bedrock legal doctrines. First, the government instigated this prosecution based on Mr. Comey’s protected speech and to vindicate the President’s animus towards Mr. Comey, in violation of First Amendment and due process principles. Second, the government engaged in selective prosecution, in violation of equal protection principles. Dismissal of federal criminal charges under these doctrines has historically been rare. That is because for decades the DOJ’s independence and integrity have guarded against the use of the criminal process to punish enemies or settle political scores. The prosecutions of Mr. Comey mark a sharp break from that tradition. Ample objective evidence—much of which comes directly from government officials’ own public statements and admissions—establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution.

The proper remedy for the government’s constitutional violations is a dismissal with prejudice. But at the very least, the Court should allow for discovery and an evidentiary hearing into the government’s decision-making process. And it should require the government to present objective evidence justifying this prosecution

This initial MTD, though, only obliquely addresses how this fits into Trump’s efforts to expand the unitary executive in the interim. It mostly shows up as a footnote citing Judge Kathleen Williams’ opinion on the IRS case.

[T]he President—the head of the Executive Branch and U.S. Attorney Boyle’s ultimate supervisor— instigated a retaliatory prosecution against Mr. Comey that would otherwise not have been brought.5

5 A district court recently noted the unusual “influence over the DOJ” wielded by President Trump, Trump v. IRS, 2026 WL 2015525, at *12 (S.D. Fla. July 13, 2026), citing a statement by DOJ leadership to U.S. Attorneys nationwide that “the President is the Department’s ‘chief client.’” Id. at 12 n.35 (citation omitted).

But DOJ’s response makes the problem explicit. In two consecutive paragraphs, Ellis Boyle both asserts that Trump can fire anyone (citing Slaughter), but in the next paragraph, claims that the only thing that matters is what Trump’s subordinates — who will be fired if they don’t do what they know Trump wants — act as prosecutors when they implement Trump’s demands.

Comey’s reliance on a social media post directed to former Attorney General Pam Bondi is even further afield. See id. at 12. As Comey elsewhere acknowledges, Bondi was not Attorney General when Comey was charged. Id. at 15. There is no evidence beyond media speculation that the President directed then-Acting Attorney General Blanche, let alone the actual prosecutorial decisionmaker (U.S. Attorney Boyle), to prosecute Comey in EDNC. And even if there were, the Chief Executive directing his subordinates to exercise core Executive functions is a feature, not a bug, of our constitutional system. The purported “independence” of DOJ that Comey cites, DE 36 at 2, is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone). See Trump v. Slaughter, 146 S. Ct. 2283, 2303 (2026). And as a matter of historical analysis, it is a myth. See, e.g., John F. Kennedy Presidential Library and Museum, Robert Kennedy’s Attorney General Office (discussing “President Kennedy’s appointment of his 35-year-old brother . . . as the Attorney General”).

But none of that matters. As discussed in more detail below, the test for vindictive or selective prosecution is not whether the Chief Executive has an influence on the prosecutorial decisions of his subordinates (as the Constitution plainly contemplates). It is, rather, whether those prosecutors have exercised their power within the constraints of the Due Process and Equal Protection Clauses. Comey’s misleading narrative should not distract from the fact he cannot come close to showing any violation.

This is the problem!! If Trump can fire anyone who refuses to indict Comey (as he did, effectively, by forcing Erik Seibert to resign in EDVA, still leaving the departures of AUSAs Gabriel Diaz and Nate Lemons in EDNC unexplained), then Ellis Boyle’s claims he personally has no animus to Comey are meaningless.

That’s, effectively, what Comey argues in his reply brief, first citing an article from Jack Goldsmith responding to DOJ’s response posted just days before Comey’s reply was due (and, curiously, reposted at American Enterprise Institute’s site).

The government “cannot have it both ways” by at once asserting “extreme unitariness” and rejecting DOJ’s traditional independence while insisting DOJ prosecutors act “uninfluenced by the president’s vindictive commands.” Jack Goldsmith, The Unitary Executive and Comey’s Vindictive Prosecution Claim, Exec. Functions (Aug. 28, 2026), https://perma.cc/E6S3-MDM4. If accepted, the government’s position would immunize vindictive prosecutions that flow from the President through subordinates who have been tasked with carrying out his bidding.

Goldsmith’s post argues that Boyle literally has no choice but to indict Comey.

But given the wishes of the president, the acknowledged absence of DOJ independence, and the formal and functional orders to follow the president’s will on pain of firing, Boyle had no lawful or practical choice. He was bound to execute the president’s vindictive wishes. He had to find a way to prosecute Comey, at least if he wanted to keep his job.

I can put the point another way. The two sides dispute Fourth Circuit and other circuit precedent on whether and when vindictiveness can be shown by proving that the charging prosecutor was influenced by a superior. I won’t get into those legal weeds here, since this case is unique. Any legal hurdle to inferring the vindictiveness of this charging prosecutor from the vindictiveness of this president should be lowered, if not eliminated, by the Trump administration’s unprecedentedly extreme claims of unitariness.

The Trump administration cannot have it both ways. It cannot claim extreme unitariness and fire people for failing to follow the president’s demand to indict enemies, on the one hand, and then claim, on the other, that the prosecutor in the Comey case made an independent decision to prosecute, uninfluenced by the president’s vindictive commands.

I would dispute that this case is unique — prosecutors are being fired across the country for refusing to implement Trump’s priorities (and, obviously, even an undocumented immigrant from El Salvador managed to make the case, in part because one AUSA was fired and another left in protest over his treatment). It’s just that the reasons and the decade-long animus is so uniquely embodied in Comey’s case.

Which, finally, after Comey’s initial MTD cited Judge Kathleen Williams in the IRS case, and DOJ’s response cited Slaughter, leads to the premise behind all of this, John Roberts’ approval of Trump’s personal interference in specific prosecutions, which Comey cites in his reply.

Accordingly, Mr. Boyle’s blanket assurance (at Dkt. 53-1 ¶ 13) that he “did not feel pressured, coerced, or motivated” to indict Mr. Comey does not advance the government’s position. See Abrego-Garcia, 833 F. Supp. 3d at 834-35 (declining to credit such “good faith explanations” from Acting U.S. Attorney, that he “made the decision on whether to seek an indictment” and “received no direction from anyone at the White House” or DOJ).4 Such a subjective assessment also cannot be relevant where, as here, the animus belongs to the President—who has wielded his “exclusive authority over the investigative and prosecutorial functions of the Justice Department,” Trump v. United States, 603 U.S. 593, 621 (2024), including by forcing the resignation of a U.S. Attorney who refused to indict Mr. Comey, Mot. 12. Cf. P.H.E., 965 F.2d at 859-60 (court must dismiss a vindictive “a prosecution [that] is premised on the fruits of constitutionally tainted behavior, . . . notwithstanding attempts to launder the taint by presenting the fruits to an independent prosecutor” asserting good faith). After all, “cases do not magically appear on the desks of prosecutors,” and this case is no exception. United States v. Abrego Garcia, 807 F. Supp. 3d 827, 830 (M.D. Tenn. 2025) (ordering government to produce discovery).

If the role of the President in prosecutions — both individual and systematic — changed thanks to Trump v. US, then the doctrine on selective and vindictive prosecution must also change. Trump’s animus and whims are implicated in every single DOJ prosecutorial decision. None more so than with Comey.

So this dispute matters to all of us.

Judges prefer to rule on technicalities before applying new precedents

To be sure, there’s no guarantee that Judge Louise Flanagan, appointed by the same President, George W Bush, who first appointed Comey to a senior DOJ position, will take the courageous step of ruling against the government. Something else could end this case, as Lindsey Halligan’s unlawful appointment did in EDVA. Judge Flanagan could dismiss this case on Comey’s argument, which is equally compelling, that his seashell post was not a true threat. She could, separately, grant his motion for a hearing to figure out why FBI Agent April Floyd rushed to get warrants she didn’t read before presenting her case to the jury, a rush that buried exculpatory information. That might lead to dismissal via other means. Judge Flanagan could deny the request, assuming a jury or the appeals process and delay will keep Comey out of jail. If those things happen, Comey will be making the same argument in a few months, likely before Aileen Cannon, who is guaranteed to bow to Trump’s demands (after she refuses to move any case against Comey to DC, where it would belong).

We all would be better served if Judge Flanagan has the courage to do what’s needed here.

The need to champion the rights of this defendant, of all defendants, personally targeted by a President abusing his prosecutorial role won’t go away though. And there will likely never be a case in which the misuse of DOJ’s authority against Trump’s adversaries is so blatant, so deliberately pathetic in criminalizing a post of seashells.

Trump has destroyed so much else with bulldozers and boy bureaucrats. But thus far, his attempt to criminalize his opponents has had to go through juries and judicial review. We’re at a moment now, with Comey but not just with Comey, where we’re looking for tools to reverse that before Trump further packs the court or finds ways around them.

The post Why Rule of Law May Pivot, Once Again, on Jim Comey appeared first on emptywheel.

Is debunked by the scale of the witch hunt he or his Crusader Secretary of War ordered up.

U.S. government investigators have taken the extraordinary step of subjecting roughly 50 members of the U.S. military’s Joint Staff to polygraph tests over leaks to journalists, including about how the Iran war has created a shortage of crucial munitions, according to officials briefed on the move.

The investigators asked military officers and civilian employees on the Joint Staff if they disclosed classified information to members of the press, and about whether they provided information about diminished U.S. munitions stocks.

The polygraph tests were conducted in August after a flurry of news reports detailed diminished stocks of crucial munitions, including of long-range missiles and Patriot interceptors. The show of force appeared aimed at not just ferreting out anyone who may have shared information, but intimidating others who might do so in the future, according to people with knowledge of the effort.

Between 1,500 and 2,000 officers and officials work for the Joint Staff, which coordinates operations, policy and war plans with combatant commanders around the world.

This leak investigation would have been launched in the wake of the last time Trump tried to deny the reports coming from all around (as well as the reports about a spat with Whiskey Pete at Camp David about it).

But as I noted then, Trump had been warned. Trump told us he had been warned.

This particular episode is interesting more for the competing narratives that explain the sensitivity about whether Trump can convince Iran the US has a secret stockpile.

In WSJ, foreign policy expert Yaroslav Trofimev, repeats assessments that time is no longer on Iran’s side, because the US has finally succeeded in getting crude out Hormuz (though not yet matching pre-war levels, and Trofimev makes no mention of the cost of doing so).

By squeezing the Strait of Hormuz, both the U.S. and Iran expected to outlast their foe, believing time would work in their favor.

Now, it looks like the trend is moving against Tehran.

The U.S. naval blockade has prevented Iran from shipping any oil from the Persian Gulf since July. At the same time, despite Iranian drone and missile attacks, Washington has been able to assist Gulf Arab states in moving significant amounts of their crude through the waterway, keeping global oil prices from surging above critical levels.

“The Iranian blockade is more leaky than the U.S. blockade,” said Samir Madani, co-founder of the maritime intelligence firm TankerTrackers.com. “The Iranians just aren’t able to shut it all down.”

The strategic question of whether time will eventually work in favor of Washington—or the Tehran regime—has yet to be settled. Iran retains ways of escalating what has now become a protracted conflict, raising costs for the U.S. and its allies. The U.S. military’s ability to maintain the naval blockade for many more months is also uncertain.

But now it is clear that Tehran’s calculation six months ago, as it shut down the Strait of Hormuz and bottled up one-fifth of the world’s crude oil supply, proved erroneous. The move didn’t trigger a worldwide economic crisis or force President Trump to end the war on Iranian terms.

That judgement assumes that Iran’s goal was to cause a global crisis that forced Trump’s hand.

By contrast, two intelligence reporters describe, just a few stories away from the leak witch hunt story on the front page of the NYT, that Iran is actually pretty confident it understands the limits to US power.

Iran has grown more confident in its ability to attack targets in the Middle East and appears determined to continue the conflict for months to frustrate the United States, according to U.S. intelligence reports in recent weeks.

In many respects, the assessments reflect what has been observable on the ground as fighting erupted again after a period of relative calm. In the past week, Iran targeted ships in the Strait of Hormuz and American troops in the region, and U.S. forces struck inside Iran, killing military personnel and civilians.

The new exchanges have been limited so far. But the intelligence reports, according to people who have read them, suggest that Iran’s hard-line government might be contemplating a significant escalation.

Iran has emerged from months of the on-again, off-again war with a far better understanding of its military strengths and is more sure of its capabilities, according to officials briefed on the intelligence.

Neither story addresses the US missile shortages. Both acknowledge that Iran still has as a stash, and WSJ describes how the pause allowed Iran to stockpile more.

There’s no consideration in either of the extent to which Iran is simply planning on bleeding the US dry, possibly in conjunction with Russia and China. There’s likewise no mention that Whiskey Pete has attempted to steal money for infectious disease research because he has blown through so much money.

House Appropriations Committee Ranking Member Rosa DeLauro (D-CT-03) has learned that officials at the Department of Defense (DoD) are working to divert billions of dollars from the National Institutes of Health (NIH) to supplement the Department’s budget.

Without notifying Congress or the American people, DoD has signed an interagency agreement that could give the Department access to billions of dollars that Congress provided to NIH for critical biomedical research. These funds were provided to support research to develop treatments or cures for infectious diseases such as influenza, malaria, tuberculosis, HIV, Ebola, and other dangerous pathogens.

“This secretive attempt to siphon research funds away from NIH is outrageous. The interagency agreement needs to be terminated immediately,” said Ranking Member DeLauro. “These funds were provided for lifesaving medical research, not as extra money for the Department of Defense. It is no secret that the Department of Defense is facing enormous financial pressure because of President Trump’s war of choice with Iran. But the Trump administration cannot make American patients, families, and scientists pay the price. Circumventing Congress to divert money intended to help Americans who are exposed to HIV, influenza, tuberculosis, and other deadly diseases—and directing those funds to the Department of Defense—is beyond the pale.

I don’t know what will happen, nor whether Iran is just playing to get through the election or longer than that.

What I do know is that in Trump’s latest attempt to lie, he seems intent on claiming there’s a secret stash of missiles that sustained reporting says the US doesn’t have.

The post Is Iran Flagging or Waiting to Pounce? appeared first on emptywheel.

The post Fridays with Nicole Sandler appeared first on emptywheel.

But first I want to look at a particular rebuttal Comey makes that may provide larger lessons about DOJ’s weaponization in the last year.

Comey’s reply spends a lot of time rebutting DOJ’s general response (in which DOJ had US Attorney Ellis Boyle write an affidavit disclaiming he had any animus to Comey, and then claimed that you must prove that a prosecutor himself had animus; this is how DOJ defeated Hunter Biden’s meritorious vindictive prosecution motions). It also dismantles one after another of Boyle’s  (or perhaps Stan Woodward’s — I’ll come back to that) dumb misrepresentations.

In Comey’s Motion to Dismiss, a very long section lays out the history of politicization in Trump’s DOJ generally and against Comey specifically (but of course Comey was always at the center of it). That section makes a two-step argument about timing: The investigation was renewed after the EDVA case flopped, and then it was charged as Todd Blanche auditioned for the Attorney General job starting in April.

Days after the district court’s dismissal of the indictment, Director Patel publicly stated that the FBI and DOJ were “not done” and “ha[d] numerous options to proceed” against Mr. Comey. Kash Patel Reveals FBI, DOJ Executing ‘Multiple’ Options on James Comey, Newsweek (Nov. 29, 2025), http://perma.cc/XV4L-KYRW.

[snip]

And in April 2026, President Trump suggested that the government was continuing to investigate Mr. Comey, stating that Mr. Comey was a “dirty cop” and “we’re not gonna stand for it.” Jennifer Bowers Bahney, Trump Says ‘I Don’t Know’ If There’s Any Evidence Against Top Dem He Wants to Indict, Yahoo News (Apr. 13, 2026), https://perma.cc/PH3H-D3RC.

That same month, President Trump fired Attorney General Bondi, reportedly because “she couldn’t deliver on his agenda, including the effort to prosecute some of his political enemies.” Monica Alba et al., As Comey is indicted, Trump is said to be happy with acting Attorney General Blanche, NBC News (Apr. 29, 2026), https://perma.cc/P3W5-8E85. The President named Mr. Blanche as Acting Attorney General. In mid-April 2026, President Trump reportedly told Mr. Blanche that he was “audition[ing]” for a permanent appointment as Attorney General. Katelyn Caralle, Top White House officials encouraged potential Bondi replacement to make case to Trump for AG job: Sources, Fox News (Apr. 11, 2026), https://perma.cc/6YM9-FWZ8. Mr. Blanche responded by “ma[king] it clear to senior White House officials that he plans to move more efficiently than Ms. Bondi against Mr. Trump’s targets.” Glenn Thrush et al., Todd Blanche Targets Trump’s Enemies Amid Jockeying to Lead Justice Dept., N.Y. Times (Apr. 24, 2026), https://perma.cc/2EXZ-47SA. He embraced President Trump’s September 2025 post, stating the President’s instruction to the former Attorney General that “JUSTICE MUST BE SERVED” should make Americans “happy.” Laura Jarrett & Ryan J. Reilly, Todd Blanche Says Americans Should be ‘Happy’ Trump is Deeply Involved in DOJ, NBC News (Apr. 14, 2026), https://perma.cc/T8JE-FERA. “At Mr. Blanche’s urging,” the DOJ moved quickly to effectuate the President’s wishes. Thrush et al., Todd Blanche Targets Trump’s Enemies,supra. Mr. Blanche “g[ave] the green light” to investigations into Cassidy Hutchinson (a former White House aide who testified about President Trump’s involvement in the January 6, 2021 riot), Democratic fundraising platform ActBlue, and civil rights organization the Southern Poverty Law Center. Id.

Mr. Blanche also “plan[ned] to revive” efforts to prosecute Mr. Comey after the “botched attempt” in the Eastern District of Virginia. Id. To that end, Mr. Blanche “creat[ed] a special position” within the DOJ for Joseph diGenova, a longtime Trump lawyer who had previously advocated for Mr. Comey’s prosecution. Paul Sperry, Russiagate Prosecutor Calls Audible on ‘Grand Conspiracy,’ WFMZ (June 25, 2026), https://perma.cc/JG84-K2WQ. Mr. Blanche “put [Mr. diGenova] in charge” of investigating a supposed grand conspiracy against President Trump involving Mr. Comey. Thrush, Todd Blanche Targets Trump’s Enemies, supra. Previously, Ms. Bondi had “got[ten] in the way” of these efforts. Id. This appointment followed the removal of a career prosecutor from the case. Charlie Savage & Alan Feuer, U.S. Installs a Trump Loyalist to Lead ‘Grand Conspiracy’ Case Into Trump Foes, N.Y. Times (Apr. 18, 2026), https://perma.cc/YG9V-MTNQ.

The DOJ also set its sights on prosecuting Mr. Comey for his seashells post from a year earlier. As Attorney General, Ms. Bondi had reportedly “pushed her team to keep pursuing” the Eastern District of Virginia case against Mr. Comey, “concluding that [the] case was significantly stronger than potential charges based in North Carolina.” Carol Leonnig & Fallon Gallagher, ‘Seashells’ Case was on Back Burner Until Bondi Fired as AG, say sources, MS Now (Apr. 30, 2026), https://perma.cc/S8VG-M89S. As Deputy Attorney General, Mr. Blanche had reportedly urged caution in prosecuting Mr. Comey for his seashells post. Thrush, Todd Blanche Targets Trump’s Enemies, supra. But with Ms. Bondi ousted and Mr. Blanche seeking a permanent appointment as Attorney General, “the ‘seashells’ case gained new steam,” and “Blanche’s aides instruct[ed] Boyle to seek a grand jury indictment of Comey.” Leonnig & Gallagher, supra.

A passage ten pages later (which appears in the argument about law) picks up that narrative where it left off and describes that you don’t generally let people who threatened the President to sit out there for most of a year.

Nonetheless, with the Eastern District of Virginia indictment dismissed and Mr. Blanche needing to please President Trump during his “audition,” Mr. Blanche’s aides “instruct[ed] Boyle to seek a grand jury indictment of Comey.” See supra p. 16.

The government’s revival of a fruitless investigation based on political expediency evidences the impact of animus on the decision to prosecute. Where the “government ha[s] followed unusual discretionary procedures in deciding to prosecute,” those aberrant procedures provide strong evidence that the prosecution was brought for an improper reason. United States v. Greene, 697 F.2d 1229, 1236 (5th Cir. 1983). Generally, when law enforcement becomes aware that an individual has threatened the President, officials act quickly to charge and arrest that individual. See, e.g., United States v. Lang, No. 3:25-cr-409 (D.S.C. filed Mar. 4, 2025) (15-day delay); United States v. Carillo, No. 5:24-cr-16 (W.D. Va. filed Aug. 2, 2024) (6-day delay); United States v. Butler, No. 7:22-cr-46 (W.D. Va. filed Dec. 7, 2022) (6-day delay); United States v. Merryman, No. 1:22-cr-50 (D. Md. filed Feb. 10, 2022) (1-day delay); United States v. Henthorn, No. 5:19-cr-8 (N.D. W. Va. filed Jan. 22, 2019) (4-day delay). Had Mr. Comey’s post been assessed as a true threat, the government’s normal process would have led it to act quickly here as well. Instead, the indictment took 348 days.

Boyle’s response ignores a great many points Comey raised in the longer narrative, ignoring even the things Kash Patel or Todd Blanche said in public as if they were Fake News, and focuses on the first step of that process — what happened after the EDVA case flopped. But he responded to the one about timing. That long delay only proves the seriousness of the investigation, Boyle claimed.

Comey’s arguments about prosecutorial delay also miss the mark. If anything, such delay militates against any suggestion of vindictiveness, because it confirms this was a genuine investigation. Regardless, courts do not flyspeck the timing of criminal investigations beyond applying (when appropriate) the five-year statute of limitations that Congress established. See 18 U.S.C. § 3282(a). That is because separation of powers principles preclude district courts from second-guessing how efficiently criminal investigations have unfolded, at least absent any indication of strategic delay aimed at prejudicing a defendant.

The “(when appropriate)” is a nice tell: because the Grand Conspiracy investigation into Comey is doing all sorts of crazy things to get around statutes of limitation.

Anyway, that comment set up this rebuttal from Comey: Nothing you did in the interim made it into the search warrant or response.

The record belies the government’s claim (at 25) that its 348-day delay in seeking the indictment “confirms this was a genuine investigation.” Not a single piece of evidence cited by the government in its oppositions or search warrants was obtained in the ten months between June 2025 and the issuance of the indictment on April 28, 2026. Instead, nearly all the government’s evidence—including the post itself, Mr. Comey’s novel, and texts from Patrice Comey and Person1—stems from the week the post was published (May 15-22, 2025). See Dkt. 54 at 3-11. Other evidence cited by the government, such as its interview with former mafia member Salvatore Gravano, was collected after the indictment issued—and so cannot possibly explain the government’s delay in seeking that indictment. See id. at 9

[snip]

Although some courts have hesitated to apply the presumption pretrial, none of their animating reasons exists here. Most notably, courts are reluctant to presume vindictiveness if the sole indication is the addition of new charges after a defendant invoked routine pretrial rights, because “[i]n the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution.” Goodwin, 457 U.S. at 381; see, e.g., Villa, 70 F.4th at 711. Here, by contrast, only the initial indictment is at issue, and the government cites no additional evidence learned post-dismissal of the Virginia indictment that prompted this one; to the contrary, its investigation developed only powerful exculpatory evidence (such as the absence of “86” as a synonym for “kill” in mob prosecutions). See supra p. 12. And while it is true that defendants “routinely” invoke procedural rights pretrial, Goodwin, 457 U.S. at 381, Mr. Comey’s successful challenge to the Virginia prosecution, which undermined the functioning of an entire U.S. Attorney’s Office, was far from routine.

That argument — and the secret filing about something that happened on April 27, the day before the indictment — made me go back and re-read the affidavit Pat Fitzgerald did accompanying the original motion to dismiss, and sure enough that’s true: A September search, Fitzgerald notes — done at the request of an AUSA — for any instances of a violent connotation to 86 in the cases Comey pursued. A November search in one mob trial. Another November search of another one. Then, Fitzgerald’s affidavit and the exhibits note, that search plus a series of interviews resume in April — a search on April 14, another the night before the indictment, and then a bunch of stuff in May, after the indictment, which obviously could not have influenced the charging decision.

All that reflects very differently on Comey’s motion to suppress two warrants, which is one reason I want to focus on this. FBI Agent April Floyd didn’t mention the work she and others had done in September or November in the March search warrant for Jim Comey’s Apple account, which is part of Comey’s complaint. Nor did she mention the exculpatory things DOJ’s key witness — the person who hates Comey but nevertheless only came to view 86 47 as a threat after they listened to Rudy Giuliani rant about it — said. Floyd did an interview on April 13 with that person, and still didn’t include most of it in the search affidavit because they didn’t say what Floyd wanted them to say, which may be why Floyd interviewed a Secret Service agent on April 20 to manufacture a claim Dave Kelley had withheld information because he didn’t give them information they had not asked for. This timing argument supports an inference that Floyd’s omissions were not just material (and they undoubtedly were, with respect to the key witness), but served to hide how DOJ found nothing when they investigated this last year but then decided to revisit the case again in April, during the period Todd Blanche was auditioning to be Attorney General.

And April Floyd obscured that they had looked hard but found nothing in order to get a warrant from Apple — a warrant to obtain material for which someone got a preservation order as the EDVA collapsed last fall and again before Judge Colleen Kollar-Kotelly “allowed” DOJ to destroy the evidence they had deliberately violated Jim Comey’s attorney-client privilege to access that information last year.

Floyd’s omissions are important for that reason. They show that DOJ found nothing last year and dropped the investigation and then renewed it when Blanche took over as Acting AG, yet still had not gotten what DOJ claims is inculpatory, the interview with Sammy the Bull, before indicting. And, as Comey noted, DOJ never bothered to read the returns obtained with that March 23 warrant, which Floyd claimed she needed to determine Comey’s state of mind when he posted the seashells photo and also to obtain the metadata for the photo that the very same warrant claimed Dave Kelley had been trying to withhold, before indicting.

Moreover, Mr. Boyle’s affidavit underscores that something irregular appears to have happened in April 2026, after Mr. Blanche became the Acting Attorney General. Mr. Boyle avers that: “Leading up to the decision to present the evidence to the grand jury, the prosecution team reviewed all evidence collected up to that point.” Dkt. 53-1 ¶ 11; see Opp. 24. But the discovery record shows that while the government had collected Mr. Comey’s Apple iCloud account, it proceeded to indict before it had the opportunity to review the materials collected. See Suppl. Aff. of Patrick J. Fitzgerald, filed concurrently under seal.

“The Indictment was approved and obtained before the agents or prosecutors had access to the communications or their contents,” AUSA Tim Severo told Pat Fitzgerald in June, and that delay couldn’t have been because of a filter team — the excuse Todd Blanche made at his indictment press conference — because they didn’t filter known attorney communications.

Floyd got a warrant claiming she needed it to investigate, but she didn’t use that material do basic things necessary to weigh whether a crime had been committed.

And all this gets into personnel issues, the way in which Trump’s DOJ serially move prosecutors around in a bid to get Comey prosecuted.

I’ve put a timeline of some of them below (I’ll go back and fill them in later). But one line in Comey’s motion to dismiss is key — and fairly coy. He states, relying on this Bloomberg story, that Boyle loaned two AUSAs to the EDVA case, “at least one” of whom oversaw the seashells case; the quotation here is from Bloomberg.

Ms. Halligan received assistance in her prosecution efforts from Ellis Boyle, installed two months earlier as interim U.S. Attorney for the Eastern District of North Carolina. Ben Penn, Top Comey Prosecutor Parroted Trump on Way to Targeting His Foe, Bloomberg Law (Apr. 30, 2026), https://perma.cc/5ZL9-CTSP. After no career prosecutors joined Ms. Halligan’s prosecution of Mr. Comey, “[Mr.] Boyle loaned two of [his] office’s more seasoned . . . prosecutors” to the Eastern District of Virginia prosecution. Id.; see Notices of Appearance, United States v. Comey, No. 1:25-cr-272 (E.D. Va. Oct. 6, 2025), Dkt. Nos. 17, 18. “At least one” of these prosecutors was investigating Mr. Comey’s social-media post while working in the Eastern District of North Carolina. Penn, supra; see supra p.10. 3

3 Both of these prosecutors resigned from the DOJ in January 2026.

This is all very coy. In neither the MTD nor Pat Fitzgerald’s affidavit does Fitzgerald describe who this AUSA is.

On May 21, 2025, an Assistant United States Attorney (“AUSA”) in the Eastern District of North Carolina (“EDNC”) wrote to a Secret Service agent that “I’ve been ordered to open this case in EDNC.” Ex. A. [012063]

[snip]

22. In September 2025, at the request of an EDNC AUSA, the FBI searched its Sentinel system—a database of all FBI investigations and information going back decades—for the purpose of determining whether Mr. Comey was exposed to a violent interpretation of the term “86” at the FBI:

But the documents show who that AUSA is: Gabriel Diaz is the guy who was ordered to open this investigation back in May 2025.

And Diaz was still working the case on September 18, when he asked the FBI to see if 86 came up in Sentinal files.

Boyle — who might be fun to play poker with, or even more fun to see cross-examined by any of the superb lawyers defending Comey — filled in some of the blanks that Comey’s coyness elicited.

1 Prior to my time as U.S. Attorney, in May 2025, AUSA Gabriel Diaz was assigned to handle the investigation of Comey in EDNC related to this case. After the indictment in the EDVA, AUSA Diaz was detailed to EDVA to assist with the criminal prosecution of Comey in that district. Although AUSA Diaz initially handled some of the initial investigations on this matter, he stopped working on this case after his detail to the EDVA occupied the majority of his time in October 2025 and November 2025. And as of late December 2025, AUSA Diaz is no longer a prosecutor in this office.

That implies Nate Lemons, the other AUSA farmed out to EDVA, did not do any work on this case. I wonder what he was doing instead?

And at least per Boyle, Diaz left before January; he left in December, around the time DOJ was fiddling with Dan Richman’s attempt to unring the bell of the privilege violations that Lemons and Diaz had participated in in EDVA.

The other parts of this timeline worth noting are the way Matthew Petracca (whom Boyle implies did not have a role in the prosecutorial decision, which is one of many reasons Boyle’s affidavit is dogshit) was put in charge of presenting the case to the grand jury two days before doing so, and left the team no more than 16 days afterwards, when Todd Blanche started colluding with the mob to sustain this investigation.

The lone signatory on the indictment was Matthew Petracca, an Assistant U.S. Attorney with a background in state Medicaid fraud and little federal criminal experience. Penn, supra. Mr. Petracca was hired by U.S. Attorney Boyle and reportedly joined the office only months before seeking the indictment, “after more experienced lawyers in the office investigating the sea shells post . . . left the case.” Penn, supra. 4 Mr. Petracca has since withdrawn from the case and transferred to the Civil Division. Dkt. 16.

4 Mr. Petracca converted from a Special Assistant U.S. Attorney to Assistant U.S. Attorney in the Criminal Division effective April 26, 2026, two days before the indictment. Fitzgerald Aff. ¶ 42.

The really important detail, however, involves Stan Woodward.

For reasons that aren’t at all clear to me, Stan Woodward and his counselor appears in DOJ’s selective prosecution response.

STANLEY E. WOODWARD, JR. Associate Attorney General

W. ELLIS BOYLE United States Attorney

ANNA L. EDWARDS Counsel to the Associate Attorney General

/s/ Timothy M. Severo

TIMOTHY M. SEVERO

Now that I realize that though, I suspect Woodward wrote much of this filing; he is well practiced in writing things for an audience of one, the guy paying the bills. And the DOJ response cites a lot of case law, but also includes things Trump would want to see, such as citations to Judge Tanya Chutkan’s ruling in US v Trump that Joe Biden hadn’t ordered up the prosecution of Trump, a case that bears no likeness to this one.

But Woodward’s involvement is important because he’s the one who swooped in and tried to unfuck the mess Lindsey Halligan made of Dan Richman’s effort to get his devices back.

Stan Woodward is the one on the hook for reading Comey’s privileged materials, and then making efforts so DOJ could reconstruct those privileged communications by obtaining a new warrant directly from Apple.

Woodward is still around, doing the dirtiest work in Todd Blanche’s corruption factory.

Timeline

May 21: Gabriel Diaz ordered to open seashells case in EDNC.

August 7: Ellis Boyle appointed.

August 11: Ellis Boyle sworn in.

September 18: Diaz does first search for 86 in Gambino files, CCs FAUSA Phil Aubart.

October 6: Nate Lemons and Gabriel Diaz file notice of appearance in EDVA.

October 12: Lemons applies for Filter Protocol.

November 11: April Floyd opens seashells case as full investigation.

November 17: DOJ obtains first preservation order from Apple; Floyd receives Secret Service file.

November 24: Judge Currie dismisses the EDVA case.

November 26: Dan Richman moves to get DOJ to delete his records.

January 2026: Both Lemons and Diaz resign from DOJ.

January 2, 2026: Stan Woodward files notice of appearance in Richman suit.

January 5, 2026: Ellis Boyle nominated.

January 12: Fort Pierce grand jury convened.

January 20: Lindsey Halligan resigns.

February 20: Judge Kollar-Kotelly permits DOJ to delete materials from Richman; DOJ obtains second preservation order from Apple.

March 23: Agent Floyd obtains warrant for Apple materials preserved after EDVA case.

April 2: Pam Bondi fired; Joe DiGenova explains it is because of Grand Conspiracy probe.

April 13: Aubart and Floyd interview Person-1.

April 14: FAUSA Phil Aubart submits more search terms for Sentinal.

April 17: Blanche appoints Joe DiGenova to run Grand Conspiracy.

April 20: Joe DiGenova sworn in.

April 24: Matthew Petracca still Special AUSA.

April 26: Petracca made AUSA.

April 27: Something secret happens; Ellis Boyle’s nomination sent to Senate.

April 28: Jim Comey indicted in North Carolina.

May 11-15: Petracca moves off the case to Civil Division.

May 13: Aubart interviews Sam Gravano.

May 18: Ellis Boyle confirmed.

May 20: Sealed document in Richman suit; April Floyd obtains warrant for Google.

May 22: Sealed document in Richman suit.

June 3: Todd Blanche nominated.

June 5: AUSA Tim Severo explains that no one from the investigative team reviewed the Apple returns before the indictment.

June 18: Sealed document in Richman suit.

August 10: Todd Blanche confirmed.

The post Flyspeck! DOJ Has Nothing — Except Todd Blanche’s Audition — to Explain Why They Sold Seashells by the Seashore appeared first on emptywheel.