Showing posts with label JAMES COMEY. Show all posts
Showing posts with label JAMES COMEY. Show all posts

Wednesday, October 28, 2026

Another Really Bad Day in Court for Trump

                                                                              

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Today, word leaked out that a grand jury in the District of Columbia refused to indict Cassidy Hutchinson. There—if you need it—is the explanation for why the government used an information to charge Jim Comey, bypassing the grand jury. This was the third attempt to prosecute Comey, and the case was apparently too weak for even this Justice Department to think it could get it past a grand jury.

It used to be unusual for a grand jury to refuse to indict. Now it’s becoming increasingly common, and the government’s new move to bypass grand jury scrutiny altogether speaks volumes about the quality of the revenge docket cases DOJ is willing to bring to please the president.

The fact that Comey is charged in an information, and not an indictment, has legal significance. As a reminder, here’s the difference: An indictment is a criminal charge issued by a grand jury that hears the prosecutor’s evidence and makes a finding that there is probable cause to support the charges. An information is a document drafted by prosecutors and signed only by them. It looks similar to an indictment, but at the top it reads something along the lines of “The U.S. Attorney charges” instead of “The Grand Jury Charges.”

Federal Rule of Criminal Procedure 7(a) generally requires an indictment for felony cases, and Rule 7(b) permits prosecution by information if the defendant waives indictment. The Fifth Amendment requires the government to go to a grand jury to charge a federal felony. Informations are used when a defendant has cut a plea deal with prosecutors and agreed to waive indictment. Comey did not. So this is a “waiverless information.” Prosecutors, as those of you who heard Preet Bharara’s and my podcast discussion today on the Insider podcast know, could not proceed with this case without taking it to the grand jury for indictment first.

Comey is charged with two counts of violating 18 U.S.C. § 793, which covers crimes involving receipt, possession, transmission, etc., of National Defense Information. (If it sounds familiar, it might be because it was one of the charges against Donald Trump in the Mar-a-Lago case.) Here’s where it gets a little tricky legally. Prosecutors have said they filed the information to stop the statute of limitations, which was going to run out the very day they filed. Prosecutors must charge on or before the last date in that statutory period, or it’s too late, and they lose their ability to charge.

The statute of limitations for this particular crime is unusual. It’s ten years. The general federal limitations statute, 18 U.S.C. § 3282(a), is five years for non-capital offenses: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” (emphasis added) But for espionage crimes, like the ones Comey is charged with, it’s ten years. Here’s the statutory language: “An indictment for any violation of title 18, United States Code, section 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed.” You can see the difference in the language I put in italics. For the first five years, an indictment or an information will do. But from years five through ten, Congress expressly provides that only an indictment will qualify.

Comey’s lawyers explain how the courts should view this kind of language in the laws Congress passes. In 1983, the Supreme Court ruled in Russello v. United States that when Congress includes specific language in one law but omits it from another, there is a presumption that Congress meant for the laws to be different. In other words, the use of “indictment” and “information” both in one law, but only “indictment” in the other, is not unintentional. The Court reinforced that rule in 2014 in Loughrin v. United States, where it directed courts to interpret laws by giving meaning to the language that is used in them and avoid construction of the laws in ways that treat Congress’ choice of words as meaningless. So, when Congress only uses the word “indictment” in a law, as it did here, it means it, and an information does not ring the bell to keep the statute of limitations from running out.

The government relies on a trio of cases that allow an information to keep the statute-of-limitations from running out. But those cases were governed by the general five-year statute of limitations rule that specifically designates both “indictments” and “informations.” None involved the ten-year statute of limitations that applies to the Espionage Act. And that’s a key difference that makes the government’s cases inapplicable here. Comey’s defense team has the better of the argument by far, and it would be unsurprising to see the judge dismiss the case. In the reply brief that they filed tonight, Comey’s team put it succinctly: “Here, the government seeks to take advantage of the special extended ten-year limitations period in Section 19, but it has not secured the legal instrument that Section 19 requires: an indictment. Instead, it filed a waiverless information at the ten-year deadline. That information does not satisfy Section 19’s explicit requirements and must be dismissed as time-barred.”

Friday morning, Judge Trevor McFadden, a Trump appointee, will hold a hearing in the case. We’ll be watching closely.

The government also had a tough time at a hearing before District Judge David Carter over its California gambit to interfere with the vote after the Ninth Circuit declined to hear its appeal. Judge Carter appointed a special master to investigate the process DOJ used for determining who on California’s rolls is a suspected noncitizen voter. That process will permit him to develop a record to support whatever ruling he makes; he did not rule today.

But the judge did admonish the government, “This court thinks it would be wise that any threats to state or local officials should cease immediately.” That’s judge-speak for “you’re in deep trouble.” I don’t think it’s an empty threat here. Judge Carter is 82 years old. Bill Clinton appointed him to the federal bench. He’s been a judge in California’s Central District, which includes Los Angeles, since 1998. Judge Carter is a former U.S. Marine who served in Vietnam, where he was awarded the Bronze Star and a Purple Heart. If the Justice Department thinks it’s going to push him around, I suspect it’s in for a rude awakening. He closed the hearing by promising a decision tomorrow.

My Brennan Center colleague Wendy Weiser got this one just right.

We all owe respect and appreciation to our friends and neighbors who are running our elections. It’s a good thing Judge Carter spoke up on their behalf. It’s too bad Republican elected officials lack the courage to do the same.

A federal judge disqualified Bill Essayli, Trump’s stand-in as U.S. Attorney for the Central District of California, from overseeing several cases. Essayli is technically the First Assistant in the office, but they Judge found that he is acting as a U.S. Attorney in violation of the Vacancies Reform Act. The order is stayed for a week to give the government time to appeal. Former DOJ employee “EagleEdMartin” on Twitter, who the Senate declined to confirm as the U.S. Attorney for the District of Columbia, reposted the news, writing, “Impeaching Judges is Necessary at Times.”

Increasingly, most days in court are bad days for the Trump administration, unless it’s before the Supreme Court, which continues to bless the administration's immigration and deportation agenda. Today, the Court “cleared the way for the Trump administration to restrict a Biden-era policy that allows immigration judges to use their discretion to close thousands of deportation cases each year.” That means cases involving kids or crime victims will no longer be spared from deportation. And it’s a good reason to get out and vote if you haven’t already. Democratic control of the Senate would block Trump from confirming additional justices if the opportunity arises.

Finally, on a personal note, one of our chickens flew the coop (or rather, over the fence) this afternoon. This happens occasionally, as they get flustered easily. The kids and I had to track her down in the alley behind our house. We were able to retrieve her safely, but I wanted to make sure nothing was wrong and give her a square meal before putting her to bed in the coop with her friends.

She gave me a lot of side-eye while she was soaking in the bath but seemed to end up enjoying it. She dried off nicely, although, as you can see, I’m a little worse for wear. There was a lot of splashing.

It’s all about balance, right? I take it where I can get it these days.

It’s only Tuesday, but this is shaping up as one of those weeks where the news comes at us so fast that it’s hard to keep up. But these developments all matter, and my goal is to make sure we’re able to understand them and what they tell us about where this administration is trying to take our country. If you read Civil Discourse regularly but aren’t yet a paid subscriber, I hope you’ll consider it. Your support lets me devote the time it takes to write the newsletter, and it means everyone has access to it, whether they can afford a subscription or not. Especially during weeks like this, I think that’s worth doing together.

We’re in this together,

Joyce



Tuesday, October 27, 2026

The Day Every Judge Ruled

                                                                    

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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.

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.

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.

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.

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.”

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





Saturday, October 11, 2025

"Trump’s Justice Swings for Bolton’s Head"


Top News | 'He’s Not Going to Run Unopposed': Sanders Rejects Schumer for Majority Leader

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