A Legal Mash-UpIt’s been the kind of day where it’s hard enough to keep up with all of the news at the intersection of law and politics, let alone figure out what it means. So tonight we’ll try to hit the high points and make some progress. Judge Refuses to Release Epstein Files In the Southern District of Florida, Judge Robin Rosenberg denied the Justice Department’s motion to release grand jury testimony in the Epstein case. She had no choice. This is in the Eleventh Circuit, where the rule is to strictly follow Federal Rule of Criminal Procedure 6(e), which limits disclosure to situations involving other units of government that need the material for an official investigation.
“Eleventh Circuit law does not permit this Court to grant the Government’s request; the Court’s hands are tied—a point that the Government concedes,” Judge Rosenberg wrote. So why did the government pursue this motion if it was a lost cause? The Second Circuit, where the New York motions asking for release are situated, gives judges more latitude. It’s possible one or both of the judges there could come up with a different result, creating the kind of split in the Circuits that would put the case on a path to the Supreme Court. This issue is yet another manifestation of Trump’s desire to consolidate power that belongs to the other two branches of government into his own hands. If he’s able to have highly protected grand jury material released in cases that he deems of “historical interest,” that would completely upend the balance of power between the courts and the executive branch. It’s not at all clear that any judge will order release of the material in this case. Doing so would set a precedent for releasing grand jury information in a lot of cases, perhaps starting with the criminal prosecutions that were brought against Donald Trump. Be careful what you ask for! New Wall Street Journal Reporting This afternoon, The Wall Street Journal released a second story on the heels of its reporting about the birthday card in Epstein’s birthday book, the one with a drawing allegedly done by Trump. This time, the reporting is less sensational in some ways. The report is that Attorney General Pam Bondi and the deputy attorney general, who is also Trump’s former criminal defense lawyer, told him in May that his name appears in the Epstein files. It has always seemed likely, given their friendship, that Trump’s name would appear there. Lots of people’s names end up in an investigative file. It doesn’t necessarily mean they’ve done anything wrong. That makes it interesting that Trump won’t agree to release the files even though he said he would during the campaign. And while it’s predictable that Trump’s name would be in the file, Justice Department policy doesn’t exactly encourage the release of information in a criminal investigative file to people outside of the Department, and especially not to someone whose name shows up in it. The Whitewater special prosecutor wasn’t telling Bill Clinton what they had on him. If any of the information that was revealed to Trump was obtained through a grand jury, it’s possible that its release to Trump, who isn’t someone working on the case, would violate the law. Here again, this feels like we can anticipate Trump arguing that because he is the head of the executive branch, he has total control over its employees and total access to any information in its files. While it’s possible these motions are just about the Epstein case, it’s equally possible we’re watching the setup for the Supreme Court’s next big opportunity to expand the power of this already bloated presidency. Multiple Rulings in Abrego Garcia Cases Kilmar Abrego Garcia was released from pre-trial custody by the judge in his criminal case in Tennessee today, while in his civil case, Maryland Judge Paula Xinis ordered him returned to that state. This dance between the two federal courts is about whether the government is going to be permitted to swoop in, take Abrego Garcia into custody, and deport him despite the pending criminal case and the withholding order in his favor. The government could theoretically deport him to a third-party country or ask for a new immigration order to counter the one that prohibits his return to El Salvador. Late in the day, a federal magistrate judge in Tennessee paused the order releasing him to give the government the chance to appeal. If the government loses the appeal (it should) and Abrego Garcia is subsequently released, we will find out what the government’s appetite for confrontation is. So far, when it comes to deportation, it’s been a big one. It has flirted with violating court orders, even crossed the line while maintaining a technical reason it wasn’t in violation. You may recall the argument that planes were out of U.S. airspace when Judge Boasberg entered a written order requiring them to turn around, so it wasn’t in effect—quite a stretch, but the government claimed it had complied, not that it was refusing to do so. Will they cross that line now, deporting Abrego Garcia in defiance of a court order and then saying “oopsie”? New Red Seats? Usually, politicians put on their game face when they’re gerrymandering voting districts. But that may be a thing of the past. Today, Trump proudly announced to Texas Republicans on a morning call that the goal is to create five new red districts in the mid-decade redistricting effort in Texas, which would radically impact Texas seats, and with them, control of the House following the 2026 elections. Another Confrontation Between the White House and the Courts As we discussed the other night, when a vacancy occurs in a U.S. Attorney’s position, either an acting (essentially someone from inside of government) or an interim (someone from the outside) can be appointed to fill it. If it’s an interim, the appointment is good for 120 days, and if the President hasn’t appointed a new permanent office holder and obtained Senate confirmation for them, the court gets to make an appointment to fill the vacancy. And that’s how it’s been for years. In my old office, that happened on at least three occasions during my tenure. That’s what should have happened in New Jersey this week. Alina Habba’s 120 days expired. The court voted to replace her with her first assistant, Desiree Grace, a highly regarded and well-qualified prosecutor. Pam Bondi’s response was to fire Grace, although it’s not at all clear she has the authority to do that. Grace is entitled to civil service protections, and we’re likely about to head into a prolonged discussion of whether the attorney general can fire the court’s choice. It’s an unnecessary mess that distracts from the office’s very serious mission of protecting New Jersey citizens from serious crime.
But Ms. Grace says she’ll stick around and serve, like the court has ordered her to.
Everywhere you look today, there’s a confrontation between Trump and the courts brewing as he attempts to acquire still more power. Trump wants to be a king, or perhaps worse, some form of despot. We can’t say this enough. If you followed the news today, or any day, it’s impossible to avoid that conclusion. We need to make sure enough of our fellow citizens see where this is headed in time to hold the line in the midterm elections in 2026. Every conversation you have, every person you engage, makes a difference. Thanks for being here and for caring enough to stay informed—it really matters. Paid subscriptions help me keep doing this work, and I’m grateful to everyone who makes that possible. We’re in this together, Joyce |
