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A lot happened today. That means tonight’s column is long, and I encourage you to read it in pieces if that helps you get through it, because there’s no way to sugarcoat this: We live in an America where a would-be authoritarian is trying to solidify his hold on the country ahead of midterm elections in which his party is expected to do poorly and we cannot afford to look away. But do find a way to digest this material without overwhelming yourself. And thanks for being here with me at Civil Discourse. We start in Alaska.
Alaska
Late last week, the Justice Department sued Alaska to preemptively block certification of the U.S. Senate election results should the incumbent, Republican Dan Sullivan, narrowly lose to former Rep. Mary Peltola because of votes cast for a third candidate on the ballot, retired teacher Daniel J. Sullivan. Peltola’s campaign and the Democratic Senatorial Campaign Committee promptly filed an emergency motion asking District Judge Sharon L. Gleason, an Obama appointee, to dismiss DOJ’s ridiculous lawsuit. Here’s what they wrote:
DOJ filed this lawsuit in the midst of the ongoing general election, less than two weeks before election day, raising issues governed exclusively by state law that were definitively resolved by the Alaska Supreme Court months ago. DOJ seeks an unprecedented order precluding certification of the U.S. Senate election if the candidate the President favors loses narrowly…DOJ’s claims are utterly without legal basis. The Court should not allow this lawsuit to hang like the Sword of Damocles over the ongoing election, lending false legitimacy to the President’s and the Attorney General’s ongoing efforts to spread false narratives about Alaska’s elections as voting continues and as results begin to be tabulated next week.
Monday evening, Judge Gleason set an expedited schedule for considering the motion to intervene. She intends to rule by 5:00 p.m. on Wednesday. Hinting at how she may rule, she warns the Justice Department to be prepared to file a response to the proposed intervenors’ Motion to Dismiss the lawsuit by 5:00 p.m. on Thursday. Judge Gleason notes the federal government’s delay in filing suit until “Alaskans had already begun casting their ballots for the November 2026 election—and nearly four months after the Alaska Supreme Court directed the Division of Elections to include Daniel J. Sullivan on the ballot for the upcoming United States Senate election—the United States initiated this action on October 22, 2026.” None of this is good news for the Justice Department.
The courts are making increasingly clear what our Civil Discourse community has known for years: that this is not a normal, rule-of-law-abiding administration. The president is a corrupt grifter. Anyone surprised by his approach to the upcoming elections failed to learn the stark lessons of January 6, which should have been unavoidable but inexplicably seems not to have been. Donald Trump will do away with our democracy if he has the chance, and anyone who continues to support him, either with their words or their silence, is complicit.
The Comeys
Donald Trump has spent his entire second term by using the Justice Department to take revenge on people he views as enemies. Today, one of those enemies—or more correctly, and even more appallingly—the daughter of one of his enemies, Maurene Comey, got some revenge of her own in court. Despite being a highly regarded and successful prosecutor in the Southern District of New York, Trump fired her, using his “Article II powers.” She sued. Now, Federal Judge Jesse Furman has determined that her firing was unlawful and ordered summary judgment in her favor, reinstating her with backpay.
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Maurene Comey argued that “she was unlawfully terminated ‘solely or substantially’ because she is the daughter of James B. Comey, the former Director of the Federal Bureau of Investigation (‘FBI’) and long-time foe of President Donald J. Trump, or because of her perceived political affiliation and beliefs, or both.”
Judge Furman wrote that “to accept [the government’s] argument would be to unsettle the very equilibrium established by this Nation’s constitutional system.” His is likely not the last word. The government is almost certain to appeal, trying to insert this case into the litany of decisions exploring just how much power this Supreme Court is willing to give the president over executive branch employees.
As the judge notes, Congress passed a law called the Civil Service Reform Act (CSRA), which limits “when and how Assistant United States Attorneys — not to mention millions of other Executive Branch employees — may be removed from office: They may be removed ‘only for such cause as will promote the efficiency of the service,’ … and only after receiving certain procedural protections, including notice and an opportunity to be heard.” He recognizes the administration will continue to argue his decision violates Trump’s Article II powers, but for today, the decision is in Comey’s favor. Stay tuned for the appeal.
And almost as though they’d timed it for this moment, DOJ has brought criminal charges against Jim Comey for a third time. This one looks as ill-advised as the first two. It purports to be an “information” as opposed to an indictment.
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You can see that the charges are brought by the “United States,” not the grand jury. That means they obtained it by bypassing the grand jury, just based on the signature of the Deputy Attorney General (which is another red flag, as indictments are usually signed by the sitting U.S. Attorney in a district, and there’s no indication Jeanine Pirro has been recused). The Fifth Amendment to the Constitution requires that all felony charges be brought by a grand jury, so unless these are misdemeanors, which would hardly be an appropriate use of the government’s resources after two prior investigations passed on prosecution, the charging document is faulty on its face.
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Comey’s lawyer, longtime Chicago U.S. Attorney Pat Fitzgerald, said in a statement that “We are gratified that United States District Judge Trevor McFadden has ordered this matter unsealed. Mr. Comey will fight these charges vigorously and in the open.” The information notes that it had been sealed since October 5.
Fitzgerald also said, “This most recent case involves an October 5, 2016 New York Times article that two different teams of prosecutors investigated during the first Trump administration. Both times the Government determined that no charges should be brought against anyone. Now, ten years after the article was published, the Government filed an 'Information' against Mr. Comey that was not approved by a judge nor issued by a grand jury. It purports to charge Mr. Comey with crimes that he did not commit."
Comey filed a motion to dismiss, arguing that the statute of limitations required an indictment via grand jury within 10 years of the alleged crime, and that this information did not stop the statute from elapsing, since an information is just a prosecutor’s statement of the allegations. Comey argues that the indictment should be dismissed on that basis. He is not wrong.
John Bolton
While we’re on the criminal side of the house, I got something wrong Sunday night, failing to catch that the John Bolton sentencing has been rescheduled for December 4. My apologies for that.
California
Just as I was settling in to read all the papers in the new Comey indictment, the Ninth Circuit issued its decision in DOJ v. California, the Trump administration’s predatory effort to force California to disrupt its vote count by sequestering “certain” ballots. Specifically, the government asked for injunctive relief that would
“(1) … set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens and
(2) … independently—or in collaboration with the Federal Government—verify their citizenship status before tabulating their vote-by-mail ballot.”
That 91-page decision comes down to the very simple proposition we started with: the Court of Appeals lacks jurisdiction. The government jumped the gun and has to let the district court do its work before there can be an appeal.
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The decision is 2-1. You can read the full opinion here. The majority opinion rejects the government’s suggestion that the district judge’s “delay”—intended to give the parties time to brief the matter and create a factual record—was a “constructive denial” of the government’s request. The court distinguishes this situation from the Supreme Court’s decision in A.A.R.P. v. Trump, which involved migrants the government was trying to whisk out from under a court order and deport. The Supreme Court found a constructive denial in that case and took jurisdiction to hear the case. But the majority here points to very different facts from A.A.R.P., where:
Several detainees were served with notices of removal under the Alien Enemies Act and “told that they would be removed ‘tonight or tomorrow.’”
“The district court delayed ruling on the motion for ‘14 hours and 28 minutes,’” which led the Supreme Court to hold that “the detainees … were ‘facing an imminent threat of severe, irreparable harm’ … in part due to the ‘district court’s inaction in the face of extreme urgency.’”
“The evidence in the record showed that many of the detainees had ‘already been loaded on to buses, presumably headed to the airport.” … And the government had ‘represented on the record in federal court that it reserved the right to remove detainees after midnight.’”
“In a prior similar case, the United States had represented that it could not secure the return of a person deported to a prison in El Salvador … That is, once deported, the Plaintiffs would have been irretrievably and permanently outside the jurisdiction of the United States.”
The majority rejected the government’s effort to claim that the injury in this election case was imminent and irreparable like it was in A.A.R.P. and declined to find jurisdiction to hear the case. And so, as we predicted here when all this was just beginning, there will likely be a hearing in the district court tomorrow, with a little asterisk here if the government tries to take a hurried appeal to the Supreme Court. One would hope that court would reject the effort to interfere with the election out of hand.
The prospect of appeal is probably why Judge Bennett wrote a concurrence in which he addressed the merits, in an effort to head off the Court. He starts out, “Even if I were to conclude we had jurisdiction over the appeal, and reach the merits, there are several reasons why I would deny the United States’s emergency motion for injunctive relief pending appeal.” He writes that over the summer, DHS reached out to California, saying it had information about noncitizens. California asked for more information, and specifically, about how the list was compiled. They never heard back and sent out their ballots on time per state law. The government only reached back out to the state after ballots had been mailed.
Judge Bennett points out that everyone in the case agrees noncitizens cannot vote and that “this dispute is about the procedures used to enforce that prohibition.” The Elections Clause of the Constitution gives states the authority to run elections, unless Congress specifically acts, as it has with, for instance, the Voting Rights Act (most of which the Supreme Court has found unconstitutional at this point, but that’s for another day). The government offered a weak argument that by making it a federal crime for noncitizens to vote, Congress intended to strip the states of the ability to decide process matters like the one involved here. Judge Bennett was unimpressed, noting that examination of the criminal statute “reveals no hidden provision authorizing the Department of Justice (‘DOJ’) to superintend or intervene in a state’s election administration. In fact, the statute’s terms seemingly approve of state voter qualification laws.” He also invokes the Purcell principle, with the government acting after voting was underway, instead of over the summer, as it could have. Judge Sanchez, who was also in the majority, wrote a concurring opinion devoted to the Purcell principle.
Judge Bumatay, who was clearly on the government’s side during argument, bought the government’s argument that there are tons of noncitizens voting, writing, “According to the federal government, thousands of noncitizens are registered to vote in California. And those noncitizens received mail ballots to vote in this November’s election. Those questionable ballots are now rolling in. Once those ballots are processed, it would be impossible to identify them, and they must be counted in the election.” He says that the federal government must have “the power to stop this potential attack on the integrity of our elections.” He found appellate jurisdiction because “a potentially large number of noncitizens’ ballots would be commingled with legal voters—harming the integrity of the election,” and without confronting the factual differences in the A.A.R.P. case, concluded that “Under Supreme Court precedent, this is enough to confer appellate jurisdiction.”
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So, that is the decision, which includes four separate opinions. There’s a teachable moment here for the government that we shouldn’t pass over. Good lawyers know they should never ignore any weakness in their case. They need to address it head-on. But the government didn’t do that here, with the majority noting, “In the emergency motion filed with this appeal, the United States went straight to the merits, and barely addressed our jurisdiction, making a conclusory assertion that because the district court ‘failed to rule’ on its TRO, the court constructively denied it.” In a footnote, they pointed out, “In fact, the word ‘jurisdiction’ does not even appear in the United States’s emergency motion.” And then they lost.
Trump Golf Course Renovation
Finally, as we predicted she was likely to last night, Judge Ana Reyes entered a preliminary injunction in the East Potomac Golf Course case, directing the government to stop cutting down trees. She pointed out that previously in the case she had said: “I am not the Lorax. I do not speak for the trees.” She concluded her opinion, writing, “The Court still does not speak for the trees. It speaks only for the rule of law.”
The opinion is worth the read. It starts like this:
Rarely, if ever, has the United States Department of Justice urged a federal court not to believe the sitting President. Not to believe him that a cabinet secretary has ‘developed’ a federal land project. Not to believe him that the secretary’s agency will destroy a historic golf course already on the land. Not to believe him that ‘Restoration work’ will begin ‘IMMEDIATELY!’ Not to believe him that the course ‘will be closed’ for over a year. Not to believe what the President has repeatedly told the American public. And yet, here we are.
She cited Trump’s Truth Social posts about the plan for the park, posted while his Justice Department was telling the court there was no plan. She cites one in particular:
At 6:08 a.m. the next morning, just hours before the hearing, President Trump posted about the golf course again. This time the work would begin not on November 15, but instead ‘IMMEDIATELY!’ Employees at the Department of the Interior testified under oath, however, that they did not know the Secretary’s position. They did not know about the November 15th start date, any immediate work, or the 15-month closure.
Judge Reyes noted the restraint she exercised in this case. “The Court would much prefer not to have to resolve Lorax v. Once‑ler redux. Indeed, for months, the Court declined to intervene. Before early October, Plaintiffs had asked for some form of relief about a dozen times. The Court denied each one. The Court acts now only because the Government did what it assured all it would not do … it bulldozed hundreds of trees on the Course.” In other words, Judge Reyes is making a point that should be important on appeal: she was not quick to intervene in the government’s plan. But restraint can become an abdication of judicial responsibility. The government’s conduct pushed the Judge into issuing the injunction here. The government has no one to blame but itself, mostly Donald Trump, for the outcome.
Thanks for sticking with me through all of this. On a night like this, full of legal developments, it’s your support for the newsletter that makes this possible. Thanks to those who already subscribe. If you don’t and you can, I’d love it if you’d make the decision to support Civil Discourse and share it with your friends tonight!
We’re in this together,
Joyce
