The president really wants James Comey on trial, and Todd Blanche really wants to be the official Attorney General, and so Comey has been indicted again — this time, purportedly for threatening the president with seashells. As with the last indictment, Comey will seek dismissal on the grounds of selective and vindictive prosecution. He may also be able to challenge the facial validity of the indictment — usually, there’s not much opportunity do to this in a criminal case, but Ken says the government got too specific in the indictment for its own good, giving a judge the opportunity to assess before trial whether the seashell statement at issue could plausibly amount to a threat. Indeed, even Jonathan Turley can’t bring himself to argue that this indictment makes sense.

Speaking of threats to the president, Cole Tomas Allen was tackled and arrested when he tried to charge the ballroom at the Washington Hilton with a shotgun. The criminal complaint is vague on whether Allen got a shot off or not, but it doesn’t really matter either way — bringing the gun to the ballroom is enough to count as an attempt at assassination, and Allen’s unnervingly-normie writings will undermine any attempt at an insanity defense.

Plus, we look at Maurene Comey’s lawsuit over her firing for being James Comey’s daughter.

That’s this week’s free show. Paying subscribers also get:

• Jeanine Pirro’s screw-up that has resulted in Trump getting less influence at the Federal Reserve than he’d probably have if she’d just played it cool.

• A wrench in Trump’s plan to have the IRS pay him a big settlement.

• Roy Moore and Diddy have something additional in common — they both are failures at defamation litigation.

• A well-deserved spanking for Sam Bankman-Fried.

• The SPLC, fighting back.

• An apology to Elon Musk from the busybodies at the California Coastal Commission, and

• An apology from Sullivan & Cromwell for AI hallucinations in a filing.

We hope you enjoy the episode,

Josh

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The Atlantic has reported that Kash Patel is often drunk and derelict in his duties as FBI Director. But Patel says he’s only guilty of working really hard, and he’s suing the Atlantic. He’s got a theory he says is a “slam dunk” — The Atlantic defamed him with actual malice because he denied the accusations against him but they printed him anyway. That theory didn’t work for Trump against The Wall Street Journal and it didn’t work for Patel against Frank Figliuzzi Jr., who accused him of being a nightclub rat on Morning Joe, but maybe it will work this time? (It won’t).

Also, his lawyer did something incompetent — shocker.

And more formidably, former Capitol Police officer Shauni Kerkhoff is suing The Blaze and two of its “journalists” for accusing her of being the Capitol Hill pipe bomber, on the basis of a shoddy “gait analysis” alleging that her limp — due to a college soccer in jury — matched the way the bomber walked on surveillance video. Proving actual malice is hard — as a police officer, Kerkhoff is treated as a public figure in the coverage of her work — but the journalists’ persistence with their accusations even after Brian Cole was arrested for the bombings strengthens her case. She also has very real defamation lawyers: Clare Locke, the firm that got the huge settlement out of Fox for Dominion Voting Systems.

That defamation coverage is for all listeners this week. In the full premium episode, there’s also:

• Even more defamation coverage, with Laura Loomer losing at summary judgment in her lawsuit against Bill Maher, and Megan Thee Stallion failing to obtain a court order instructing Milagro Cooper to stop talking about her.

• A preliminary injunction telling Apple and Facebook to restore anti-ICE resources they took off the internet at the government’s behest.

• The SPLC indictment.

• A settlement for Carter Page.

• A Sam Bankman-Fried update.

• And a court ruling that says it’s legal to be a huge dick in Alabama.

We hope you enjoy the episode,

Josh

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Eric Swalwell’s campaign for California governor flamed out spectacularly over the weekend, and now prosecutors in Manhattan and Los Angeles are looking into sexual assault allegations against the now-former congressman. Meanwhile, US Attorney Jeanine Pirro — who oversees local felony prosecutions in the District of Columbia — has set up a hotline for victims who may have been assaulted by Swalwell there. And, a succession of lawyers for Swalwell have gone on the offensive, sending out cease-and-desist letters and attacking his accusers as politically motivated and dishonest.

Besides looking into Swalwell, Pirro sent a couple of her henchpersons to the under-construction Federal Reserve headquarters looking for … something. An “I personally ordered the cost overruns” note from Jay Powell? We’re not sure, and probably neither were they — going to the crime scene is not something AUSAs do, as Ken notes from his own rueful experience of being denied an all-expenses paid trip to the Inland Empire, and the stunt seems only to have strengthened the resolve of Sen. Thom Tillis to block any confirmations of Trump Fed nominees.

That’s on this week’s show plus, for paying subscribers:

• Trump moves to vacate convictions of Oath Keeper and Proud Boy January 6 defendants whose convictions he’d previously chosen not to pardon;

• A panel of the DC Circuit Court of Appeals again frustrates James Boasberg’s investigation into non-compliance with his orders about deportations;

• Trump’s defamation lawsuit against the Wall Street Journal is dismissed for failure to plead actual malice;

• The Pentagon continues to try to avoid complying with an order to reinstate reporters’ access;

• Bill Essayli loses yet another case against immigration protesters; and

• A lesson on aesthetic standing (and how not to use AI!) from the Tiger King.

We hope you enjoy the episode,

Josh

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Michael Avenatti, sentenced to over 11 years in prison for stealing money from his clients, has gotten out after a little over 4 years behind bars. He’s still not a free man — he’s living in a halfway house in the Los Angeles area, where he’ll be expected to find work, perhaps as a podcaster. And in part he owes thanks to his former nemesis, Donald Trump, for signing the First Step Act, which allows for earlier release of certain first-time offenders.

Meanwhile, Pam Bondi has been released from her own version of federal custody, and the Justice Department says this means she doesn’t have to comply with a subpoena to testify before congress about her handling of the release of the Epstein Files. Members of the House Oversight Committee, including some Republicans, are crying foul, saying their subpoena remains in force. Ken says, if Bondi were his client (lol), he’d advise her to comply. But if DOJ doesn’t care to make her talk, Congress will have limited ability in practice to force her to do so.

Meanwhile, Ed Martin wants his DC bar disciplinary proceedings removed to federal court. How can you remove something that’s not a lawsuit to federal court? That’s an excellent question, Ken says — one that Jeffrey Clark helped us find the answer to.

This week’s full show has all that plus:

• Trump’s emergency motion to lift the stay on construction of the “desperately needed” White House ballroom, and a discussion of why the plaintiffs’ claims to standing are stronger than we gave them credit for last week.

• A Clavicular-alligator update.

• If you’re going to talk about how you want to do terrorism, don’t do it in front of your dash cam.

• Long-suffering federal judge Lewis Liman’s 152-page order dismissing most, but not all, of Blake Lively’s claims against the producers of It Ends With Us (and their publicists), and Ken’s discussion of why you shouldn’t sexually harass your independent contractors, even if it might technically not be illegal.

• Elon Musk’s antitrust loss.

We hope you enjoy the episode,

Josh

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Last week, we talked about a court hearing that seemed to have gone well for Anthropic, and indeed, the hearing was swiftly followed by a preliminary injunction from Judge Rita Lin, barring various Pentagon actions against the AI company, including a supply-chain risk designation that threatened much of the company’s private business.

And there’s another big injunction, this one from Judge Richard Leon, who loves to use exclamation points in his orders! Judge Leon says Trump must stop work immediately on his ballroom! If he wants it built, Congress is going to have to pass a law authorizing it! But why does the National Trust for Historic Preservation even have standing to challenge the ballroom project? Their members don’t appear to suffer an especially particularized injury, beyond having to look at a building they think is ugly! Ken says standing is a doctrine judges just make up as they go along!

Plus, Donald Trump’s executive order defunding PBS and NPR is blocked, but since Congress subsequently acted to rescind their funding, the effect of enjoining the order is limited.

Free subscribers hear about those cases. For paying subscribers, there’s much more! Including:

• Covington & Burling warned its client, ActBlue, that some statements ActBlue made in a 2023 letter to congressional leaders may have been misleading, and that ActBlue’s CEO probably needs her own lawyer to deal with her legal exposure around that fact. ActBlue responded by firing Covington & Burling. It’s a big old mess, and Ken describes how this kind of thing can happen when you represent an entity, and the entity’s legal needs don’t always line up with the legal needs of its executives.

• A Colorado appeals court threw out Tina Peters’ nine-year sentence for voting machine tampering, saying the judge raised her sentence in response to her constitutionally-protected speech.

• After his car accident, Tiger Woods issued a statement saying he will step away and “seek treatment.” It’s an implicit admission of DUI, but as Ken notes, he’s very unlikely to beat the rap on DUI anyway, and this is a situation where his PR need to speak up and take responsibility may actually outweigh his legal prerogative to shut up.

• FBI agents are suing Kash Patel for wrongful termination, and taking the opportunity to tell embarrassing stories about Patel that may not be strictly germane to their litigation.

• Some people who went to the Capitol for January 6 have filed a new class action lawsuit, apparently hoping to join in on the Trump settlement gravy train.

• Be careful what buttons you click on LinkedIn.

• And, by popular demand, Ken analyzes Clavicular’s predicaments.

We hope you enjoy this episode,

Josh

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Judge Lewis Kaplan is losing some patience with Sam Bankman-Fried, and not just because Bankman-Fried’s mom tried to communicate with him ex parte. SBF has been making purportedly pro se filings, at least one of which appears to have been dictated to and FedExed by his mother, and he simultaneously has an appeal proceeding in the appeals court with real lawyers. Kaplan says he has to choose — are you pro se or not? And he wants to know — have any lawyers besides mom been helping with these filings he’s supposedly personally responsible for?

Meanwhile, the “Department of War” has been having a rough time in court. The Pentagon’s anti-reporting press policy has been thrown out as a First Amendment violation, so now the Pentagon says no reporters at all can work out of the Pentagon press room. Meanwhile, Anthropic won a preliminary injunction blocking the Pentagon’s declaration that the company is a “Supply Chain Risk.” (The Anthropic order came down after we taped — we’ll have a further update on next week’s show.)

That’s for all listeners. For paying subscribers, we also cover:

• DOJ’s admission that it had no evidence of a crime related to Jay Powell’s testimony about Federal Reserve headquarters renovation cost overruns (and the surprisingly low bar for issuing a subpoena that the government nevertheless failed to clear).

• A surprisingly practical choice by DOJ in New Jersey.

• Minnesota’s effort to force the federal government to disclose investigative material related to the shooting deaths of Alex Pretti and Renée Good.

• Mike Lindell in contempt of court.

• Mike Flynn getting a settlement from Trump for his alleged persecution by Trump’s own DOJ.

• No protective order for those DOGE henchman depositions.

• And the Oklahoma Supreme Court telling attorneys to go ahead and use AI, if they dare.

We hope you enjoy the episode,

Josh

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Afroman has won his legal battle with the sheriff’s deputies who raided his house in 2022 and then became unwitting stars of his music videos mocking them. Several of the deputies, including “Officer Poundcake,” sued for misappropriation of their likenesses, defamation, and other torts. But a jury sided with Afroman, agreeing that his songs about the officers were social commentary and that his statements about them, however juvenile, were insults rather than literal factual claims of having, for example, slept with one of their wives.

This week, for all listeners, we recap the Afroman trial and also look at a rough hearing for AUSAs in New Jersey, as the Trump administration decides it will hire candidates straight out of law school to work in US Attorneys’ offices.

For paying subscribers, there’s much more:

• Judge James Boasberg’s order quashing subpoenas to the Federal Reserve, U.S. Attorney Jeanine Pirro’s choice to appeal that order, and Boasberg’s other order requiring the disclosure of grand jury no-bills.

• Capitol pipe bomber defendant Brian Cole, who has made his anticipated claim that the president’s pardon of January 6 rioters also applies to him (even though this seems to go against the plain language of the pardon, which applies only to those “convicted” of offenses related to January 6.)

• Sam Bankman-Fried’s mom, who got slapped down for trying to have ex-parte communications with the judge overseeing his case; Judge Lewis Kaplan reminded Prof. Barbara Fried that she might be a lawyer, but she’s not her son’s lawyer, at least not in this case.

• Defendants convicted of terrorism-related offenses in Texas over an anti-ICE action where they set off fireworks and one defendant shot a law enforcement officer in the neck; as Ken notes, despite the rhetoric on both sides, this trial was never really about whether ‘Antifa’ constitutes a terror organization.

• More hot hot administrative procedure action, with Judge Brian Murphy issuing a preliminary injunction against the new, laxer child vaccination guidelines from Robert F. Kennedy Jr’.s Department of Health and Human Services.

• And dog-fashion magazine Dogue, which is being sued by Condé Nast for infringing the Vogue trademark.

If you want to get all that, go ahead and hit the button below:

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We hope you enjoy the episode,

Josh

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As we discussed last week, Judge Richard Eaton of the U.S. Court of International Trade rather impatiently told the Trump Administration to stop charging IEEPA tariffs already, since the Supreme Court has deemed them illegal. The Customs Service responded, claiming that’s literally impossible — too many importers have already made estimated tariff payments, and their computers aren’t programmed to separate out IEEPA from non-IEEPA tariffs when finalizing the bills due. Give us 45 days to reprogram our computers, they ask, and then we’ll refund all the money. As Ken notes, you might want to lead with “we can fix this in seven weeks” rather than sticking it at the end of your brief explaining why you won’t do what a judge has already ordered you to do.

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Free subscribers this week get our conversation about that, plus more situations where courts are telling the Trump Administration it can’t just ignore the need to get officials confirmed by the Senate — including at Voice of America, where Kari Lake has now been robbed not just of two statewide offices but also her role as CEO.

For paying subscribers, we cover a number of additional lawsuits, including some especially weird ones:

• Voting machine maker Smartmatic’s parent company under indictment over bribes its former executives are alleged to have paid in the Philippines, alleges that it is being selectively and vindictively prosecuted.

• Anthropic is suing over the Pentagon’s “supply chain risk” designation that threatens the company’s business. The company makes First Amendment claims, but Ken thinks its less glamorous arguments — like that the designation violated everyone’s favorite law, the Administrative Procedure Act — are more persuasive.

• Nippon Life Insurance Company of America is suing OpenAI, the makers of the ChatGPT AI engine. Nippon says it has been dogged by a vexatious litigant — she decided she didn’t like the settlement she’d signed with the company, and when her human lawyer advised her that settlements are a no-backsies kind of situation, she fired him in favor of the AI engine that gave her the advice she wanted to hear: sue, sue, sue. Nippon says this is tortious interference with the valid settlement contract they’d entered with their aggrieved former policyholder. Because tortious interference requires knowledge of the contract you’re interfering with, this lawsuit turns an interesting philosophical question into an interesting legal one — did OpenAI “know” that Nippon had a settlement, simply because their former policyholder told ChatGPT about it?

• And Ed Martin appears to be the Justice Department official with some especially stupid bar trouble.

This is an especially meaty show (oh, and we also look at another decision about ICE) so we hope you all get the full thing so you can hear all of it. If you’re not a subscriber and you want to be, hit the button below.

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We hope you enjoy the episode,

Josh

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The Trump Administration surprised many observers by withdrawing its efforts to appeal its losses against all four law firms that challenged its legal orders against them. Then, it surprised observers again by changing its mind and asking to appeal the cases after all. We discuss why, whether you’re allowed to do that, and what happens to the nine firms that didn’t fight when the other firms win.

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We also look at a strange letter from the Department of Justice to state bar associations, telling them they’ll have to pause investigations into DOJ lawyers, or else. It’s unclear what authority DOJ thinks it has here, but they may be upset about a Florida Bar investigation into Lindsey Halligan. And we talk about news that DOJ tried to come up with a way to do a criminal prosecution related to President Biden’s autopen, but didn’t.

That’s for all listeners. Paying subscribers get a whole lot more this week:

• You’d think, now that the IEEPA tariffs have been thrown out, customs would stop charging them to importers. You’d be wrong! The customs bureau keeps finalizing tariff payments including the now-barred IEEPA charges — in a filing issued after we taped, they argued their computers won’t let them stop — but Judge Richard Eaton from the U.S. Court of International Trade has told them to cut the crap and refund taxpayers’ money. Ken and I discuss how this episode might affect the next round of tariff litigation over the new legal authorities the administration is leaning on to replace IEEPA.

• There’s Administrative Procedure Act news! Judge Lewis Liman says the Trump Department of Transportation can’t end New York’s congestion pricing program, in an order that Ken calls “149 pages of pain.” One of the issues? As often happens with APA cases, the DOT said New York couldn’t challenge its move because they hadn’t actually imposed a “final” agency action. Unfortunately for DOT, President Trump last February tweeted a picture of himself wearing a crown and declaring “CONGESTION PRICING IS DEAD,” which sounded pretty final to Liman.

• We have an update on West Virginia judges resisting the Trump administration on ICE.

• We look at why Tom Goldstein couldn’t save his own ass in court, discuss the superseding indictment with a whopping 39 defendants in the St. Paul ICE Church protest case, and we discuss the prosecution in Alabama of a woman who dressed up as a giant penis for a No Kings protest. Local prosecutors argue, among other claims, that she sought to mislead officers as to her identity by saying her name was “Antifa,” and that her huge penis costume was so distracting that it constituted a criminal traffic hazard.

To hear all that, hit the button below and join us. Join us! One of us!

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We hope you enjoy the episode,

Josh

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This week’s Serious Trouble opens with more tariff talk — what awaits litigants like FedEx who seek refunds of payments they made under President Trump’s now-invalidated tariffs, and what courts might do with his efforts to reconstruct the tariffs under non-IEEPA legal authorities that come with their own difficulties. We discuss news that Jeanine Pirro has given up on indicting the Democrats who made the “you must refuse illegal orders” video, and we have an update on Matthew Isihara, the SAUSA who was held in contempt of court in Minneapolis. (At least the detainee who got dumped in El Paso without his documents will get his plane ticket paid for.)

That’s for free subscribers. Paying subscribers (thank you for your support!) also get our looks at:

• The magistrate judge who authorized a search of a Washington Post reporter’s home but is now angry that the government failed to alert him to a law that appears to make their search illegal. (Isn’t it his job to know the law?)

• Aileen Cannon’s efforts to block the release of Jack Smith’s report on the Mar-a-Lago documents investigation.

• A ruling from a federal judge in West Virginia with a novel Fourth Amendment theory prohibiting certain ICE tactics (this is likely to get a lot of appellate action).

• A ruling that it’s not misleading for Buffalo Wild Wings to market its “boneless wings” which aren’t actually made from wing meat.

If you want to hear all that, hit the button below and join our club, we’d love to have you.

We hope you enjoy the episode,

Josh

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Just as we were sitting down to tape, the Supreme Court dropped its ruling in Learning Resources v. Trump, throwing out the massive country-specific tariffs the president purported to impose under the Nixon-era International Emergency Economic Powers Act. The opinion was messy: 6-3, but with the six-justice majority not agreeing on exactly why the tariffs were illegal. Justice Gorsuch, in particular, issued a concurrence describing his bones to pick with almost everyone: the court’s liberals, who said this decision could be reached without recourse to the “major questions” doctrine; the dissenting conservatives, who he saw as concocting an ad-hoc exception to the doctrine; and Justice Barrett, with whom he has a somewhat inscrutable disagreement over how to think about the doctrine, despite both of them voting the same way. He does think Roberts is cool, at least.

Also this week, we look at a contempt order from Judge Laura Provenzino, putting a Special Assistant U.S. Attorney (a J.A.G. attorney on loan from the Department of Defense) in contempt over the government’s failure to return identification documents to a non-citizen released from immigration custody on her orders. He was fined $500 per day — a fine the government will reimburse — and as such, the order is more symbolic than effectively coercive. We discuss how an order like this matters, and how judges could further escalate in the face of widespread noncompliance by the federal government in these immigration cases.

Plus, we discuss a mistrial over a defense attorney’s t-shirt, Judge Paula Xinis’s rejection of yet another effort to detain Kilmar Abrego Garcia, Sen. Mark Kelly’s exclamation-mark-laden preliminary win against efforts to reduce his military rank and pension, and a Minnesota judge’s order directing the government to let ICE detainees talk with their lawyers. And we look at an all-timer performance from billionaire Les Wexner’s attorney, who whispered in his ear during a congressional deposition, threatening to kill him if he says any more answers longer than five words.

We hope you enjoy the episode,

Josh

Click here for a transcript of this episode.

When we’ve previously talked about the ways the Trump Administration might retaliate against six Democrats in Congress who made a video reminding servicemembers to refuse illegal orders, we didn’t even discuss the possibility of a civilian prosecution, because it was so preposterous — but US Attorney Jeanine Pirro’s office tried, preposterously, and they got no billed very hard, with zero grand jurors voting to indict the officials, according to NBC News. Perhaps Steven Vandervelden, a former underling of Pirro’s from the Westchester DA’s office who retired from his legal career to pursue dance photography, but rejoined government to help Pirro prosecute cases like this one, should get back to his other job.

Meanwhile, Don Lemon has a new, high-profile lawyer: Joseph H. Thompson, who until just a few weeks ago was a senior attorney in the US Attorney’s Office in Minnesota, leading those welfare fraud cases that caused President Trump to take so much interest in the state in the first place. Now, having quit the office in disgust, he’s a defense lawyer.

Trump is suing the IRS for ten billion dollars — can he do that? — and his Justice Department is trying to dismiss the Contempt of Congress case for which Steve Bannon served a few months in custody — Bannon is still appealing, so DOJ still may be able to make it go away.

That’s all for free subscribers this week. Paying subscribers get more conversation:

• A look at a highly consequential ruling from the Fifth Circuit, upholding the Trump Administration’s novel and very aggressive views on what aliens it may detain pending deportation. Most other courts have rejected these theories — including a majority of Trump’s own trial court appointees who have heard relevant cases — and there’s some skepticism that the Supreme Court will go along.

• The DOJ seized 2020 election ballots from Fulton County, with a fairly batshit search warrant that Ken is surprised got approval from a magistrate judge. Fulton wants its ballots back; we discuss whether they’ll get them and what might happen if Trump tries to get a warrant for ballots in an election where a count is ongoing rather than complete.

• We look at an alleged jewel thief who had the option of going to prison or Ecuador and unsurprisingly chose Ecuador — reflecting a serious failure of coordination between prosecutors and immigration authorities.

• And finally, is murder a crime of violence? The answer might surprise you.

To get all of that, hit the button below.

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We hope you enjoy the episode,

Josh

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Until recently, attorney Julie Le had been detailed from the Department of Homeland Security to represent the government in various immigration-related cases in court in Minnesota. She wasn’t enjoying it. “This job sucks,” she told Judge Jerry Blackwell, in a hearing where she explained that she was trying to get her client to comply with court orders, but that it was very hard, due to a combination of this administration being both overwhelmed and uninterested in complying with certain laws. She also noted that, as a non-white person, she shared concerns about the government’s actions in the Minneapolis area.

You can see a full transcript here — it’s remarkable.

Ken and I discuss what you should do if you’re a lawyer whose client is frustratingly non-compliant and taking actions that bother you; venting to the judge is the wrong course of action, but there are other options available. We talk about how judges can handle the Trump Administration’s learned helplessness, and what escalating remedies they are increasingly looking towards. And we look at the DOJ’s efforts to manage the fact that lawyers are fleeing its offices.

That’s for all listeners. Paying subscribers get our takes on other topics, including:

• Judge Kate Menendez’s ruling that denied Minnesota the preliminary injunction it sought against Operation Metro Surge. As we expected, the state’s novel theory that federal government’s actions are a 10th Amendment violation was a bridge too far, even for a judge who seemed to be looking for some avenue to rein in the operation.

• Judge Ana Reyes’s grant of a temporary restraining order on the grounds that the Trump Administration may have violated the Administrative Procedure Act by revoking Temporary Protected Status for hundreds of thousands of Haitians, and the limits of using the APA to litigate substantive questions about immigration policy.

• Bill and Hillary Clinton’s emerging deal to testify before the House Oversight Committee and avoid the otherwise-likely prospect of contempt of congress prosecutions.

• Former Minnesota Vikings offensive tackle Matt Kalil’s lawsuit against his ex-wife Haley, over her disclosure on a podcast that his incredibly large penis made their sex life impractical and was a major driver of their divorce. He says this was an invasion of privacy; she argues in a motion to dismiss that the story is about her sex life too and she’s free to tell whoever she wants. Is this the first case of a reverse Streisand Effect, where you litigate because you want to draw more attention to an allegation that’s been made about you? What even are the damages at issue here? Would Matt Kalil like to visit Fire Island this summer? Ken and I discuss.

We hope you enjoy the episode,

Josh

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Just before we taped on Friday morning, we got word that Don Lemon had been arrested in Los Angeles on a grand jury indictment related to an anti-ICE protest two weeks ago at Cities Church in St. Paul, Minnesota. After taping, we obtained the indictment, which already gives us some material for next week. The indictment charges Lemon, along with his producer and several activists, with one count of conspiracy under USC 18 § 241 (the “Klan Act”) to violate USC 18 § 248 (the Freedom of Access to Clinic Entrances Act, which criminalizes certain activities interfering with the use of places of worship), and a further count of direct violation of USC 18 § 248. Section 248 only criminalizes certain modes of interference with a religious service, introducing additional fact hurdles for prosecutors which we’ll discuss next week. Meanwhile, Lemon has been released without bond, as we expected, pending a future court appearance in Minneapolis.

Before prosecutors got the grand jury indictment, they tried through some really irregular channels to get Lemon arrested more quickly. When a magistrate judge rejected an arrest warrant application for Lemon last week, rather than applying again or proceeding to the grand jury, prosecutors asked Judge Patrick Schiltz to overrule the magistrate, then asked an appellate panel to force Schiltz to rule on their motion right away, fearing that if Lemon wasn’t arrested immediately, there would be an epidemic of illegal church invasions. Schiltz took exception to this, and the appeals panel backed him up, though one of the appellate judges remarked that he thought all the arrest warrants were sufficiently supported but the government just didn’t need the weird emergency relief it was seeking.

Also this week: we look at federal judges (including Schiltz) who are incensed that ICE isn’t promptly complying with their habeas corpus orders, and how this mess is downstream of rules that prohibit nationwide injunctions and are clogging some courts with individual lawsuits seeking relief from immigration detentions. We have an update on Minnesota’s 10th Amendment case — Judge Kate Menendez appears skeptical that she is in a position to provide the sweeping relief the state wants, though she does want more briefing on the threat letter from Attorney General Pam Bondi to the state. And in another case, an order from Menendez restricting ICE tactics has been stayed — another case where we’re seeing the limited authority of courts to provide prospective relief from potential victims of illegal policing tactics.

In non-ICE news, it appears likely that Jeffrey Toobin will have to testify at Tom Goldstein’s criminal trial, though he has a good argument for limiting his testimony to fairly boring topics. Candace Owens says Turning Point USA has sent her a letter threatening to enforce a non-disparagement agreement they say she has violated by spreading conspiracy theories about Charlie Kirk’s death. And a defendant in Northern California called up a local news station during her trial to protest that she only threw parties where she gave alcohol to minors because of COVID.

We hope you enjoy the episode,

Josh

Click here for a transcript of this episode.

Last month, when a panel of the Third Circuit Court of Appeals upheld a ruling that Alina Habba could not validly serve as interim US Attorney for New Jersey, Habba left New Jersey for a new job at Main Justice and issued a defiant statement about how you can take the girl out of New Jersey, but you can’t take the New Jersey out of the girl.

But when Judge Cameron McGowan Currie ruled that Lindsey Halligan was not the interim US Attorney for the Eastern District of Virginia — and therefore threw out her precious indictments of James Comey and Letitia James — she just stuck around the office. She kept presenting indictments to grand juries, kept going to court, and kept signing documents as the US Attorney — kind of like that episode of Seinfeld where George Costanza showed up to work and tried to pretend he’d never quit his job.

It worked, sort of, for longer than it worked for George. But this week, Judge David Novak issued a blistering order, rejecting an argument from Attorney General Pam Bondi that the order finding her invalidly appointed was not binding beyond the Comey and James cases. Novak said he wouldn’t sanction Halligan, for now, since she knows very little about how to practice law, but he reserved the right to do so if she continued to purport to serve as US Attorney. And so, finally, she relented. As it happens, even if Halligan had been validly appointed as interim US Attorney, the clock on that appointment would have run out this Tuesday, so Bondi issued a statement thanking her for serving for 120 days with “the utmost distinction and an unwavering commitment to the rule of law.” And now someone else will run the EDVA office — I’m not sure who, since DOJ just fired the First Assistant US Attorney because he didn’t want to lead an effort to re-indict Comey, but someone.

For all subscribers, we discuss those events, and we look at news reports that ICE is relying on a secret legal memorandum asserting that it can enter homes to search for aliens subject to final orders of removal, even if there’s no warrant from an Article III judge authorizing them to do so. This is a departure from longstanding practice — see Orin Kerr on why it’s probably not legal — but even if it isn’t legal, as Ken and I discuss, it’s not obvious how one would get relief.

For paying subscribers, there’s a lot more news:

• There’s an order enjoining ICE from certain enforcement tactics in Minnesota, but it’s subject to an administrative stay, for now — and, since this is Fourth Amendment Fun week, we have another opportunity to discuss how you might have a Fourth Amendment right, but that doesn’t mean you’ll get to use it.

• We also look at the case of Geraldo Lunas Campos, a Cuban national who died in ICE custody earlier this month. ICE says his death was a suicide, but his family disputes that, citing other detainees who claim he was choked by guards. (A county medical examiner’s report also deemed his death a homicide — a determination of manner of death, not a finding of legal culpability.) Alas, it’s up to DOJ to keep those witnesses available to testify, and if DOJ doesn’t want to, they’ll likely be deported.

• We discuss the federal charges for anti-ICE activists who are accused of disrupting a Twin Cities church service this past weekend — they were charged under the so-called Klan Act, and the charges were obtained via criminal complaint to a magistrate judge, which means prosecutors will still need to get a grand jury to agree to indict — and prosecutors’ failure so far to charge journalist Don Lemon.

• We consider the Supreme Court’s ongoing effort to carve out the Federal Reserve from its plans to neuter independent boards and commissions (special unique historical tradition etc etc).

• And we’ve got a weird one: former Sen. Kyrsten Sinema has been sued for alienation of affection — still an available tort in North Carolina and five other states! — by the estranged wife of one of her former staffers, who says Sinema stole her man.

We hope you enjoy the episode,

Josh

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Federal Reserve Chairman Jerome Powell dropped a bombshell on Sunday, issuing a video statement disclosing that the Fed had been subpoenaed in a criminal investigation related to his congressional testimony about cost overruns in the Fed’s headquarters renovation. Powell said bluntly that the investigation is pretextual: an effort to use the DOJ to assert control over the Fed and its interest-rate setting apparatus.

Powell has good lawyers from Williams & Connolly. He had good policymaking reasons to make the statement, and he avoided addressing the substance of the congressional testimony he gave last year, from which some in the administration hope to cook up a claim about lying to Congress. The statement, Ken says, was fine. But this situation is special and unique, much like the Fed itself. The general advice of “shut up” still stands.

Meanwhile, Minnesota and some of its municipalities have sued the federal government, arguing that the ICE surge in the state is illegal and unconstitutional. Minnesota’s broadest claims — relying on the Tenth Amendment and a claim that the federal government has commandeered state and local governments simply by causing a huge disruption they must respond to — goes well beyond any current understanding of how the Tenth Amendment delegates powers to the states. But narrower claims about specific violations of individual rights may fare better.

Those discussions are for all listeners. Paying subscribers also get:

• A look at intensifying turnover in US Attorneys’ offices, including the resignation of top prosecutors who had been leading the investigations into welfare fraud in Minnesota that was concentrated in the state’s Somali-American community. Some of these prosecutors were unwilling to take actions DOJ now wants, including launching a probe into Renee Good’s widow. Meanwhile, in the Eastern District of Virginia, DOJ fired a top prosecutor who wasn’t willing to simultaneously lead the office and try to restart the James Comey prosecution. And in the Northern District of New York, yet another Trump designee was invalidly appointed, causing trouble for an investigation related to Letitia James.

• We also have DOJ’s argument for why Lindsey Halligan can keep calling herself a US Attorney after a judge ruled she isn’t one.

• Senator Mark Kelly’s many arguments for why Pete Hegseth can’t reduce his rank and pension.

• Some “shut up” news: prosecutors want to admit several incriminating statements from defendant Thomas Goldstein’s pre-trial New York Times profile. They’ll be able to bring these into evidence through a hearsay exception, but they may need to summon Jeffrey Toobin — in person, one hopes — to testify that Goldstein really made the statements to him.

• And a look at a bizarre situation where Bruce Fein insists he somehow became Nicolas Maduro’s lawyer even though Maduro says he never hired him.

We hope you enjoy the episode,

Josh

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Happy New Year, and welcome back to Serious Trouble. This week’s episode starts with the arrest of Nicolas Maduro. Maduro says he’s a prisoner of war — illegally arrested in the country he ran and kidnapped to the U.S. As Ken says, the question of whether this is true is unlikely to be interesting to the court where he will be tried; if the indictment is valid in the U.S., it won’t much matter how the government got him here to face it. On the other hand, the indictment is surprisingly thin on establishing the nexus between Maduro’s actions and the U.S. drug market. Of course, prosecutors don’t have to show all their evidence at this stage — but given how much the indictment speaks (or “shrieks”) on various other topics, it’s a little odd prosecutors didn’t say more about exactly what enrichment he got for what actions that led to cocaine imports to the U.S.

Next, we look at the fatal shooting of Renee Nicole Good at the hands of an ICE agent in Minneapolis. There’s a lot of people clamoring for charges, and officials in Minnesota are trying to conduct a criminal investigation of the shooting, though the federal government isn’t exactly being helpful. We may be headed for our first test of the proposition that state criminal law can be used to check the activity of federal immigration agents. There is related precedent — several decades ago, Idaho prosecutors took an FBI sniper from the Ruby Ridge incident to trial. Ken and I discuss what the process would look like, and what courts it would have to take place in.

That’s for free subscribers. Paying subscribers also get a look at a shadow docket ruling from the Supreme Court that curtailed Trump’s ability to deploy the national guard, and the surprising statutory reading that got a majority of the court there. We look at a dismissal of criminal charges from another scrap with ICE in Los Angeles, we discuss Mark Kelly’s legal options for fighting the reduction of his pension (and why he might choose not to use them), we consider why Lindsey Halligan keeps insisting she’s the US Attorney for the Eastern District of Virginia, we look at the bizarre upcoming criminal trial of Scotusblog co-founder Thomas Goldstein, and we have an update on the saga of the still-held-in-contempt Charles C. Johnson.

We hope you enjoy the episode,

Josh

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Some of the Epstein files have been released, pursuant to the law ordering their release, but there's a lot of blacked-out text and pictures that have people suspicious. The Justice Department is supposed to redact certain information — like information that could identify victims — but there appear to be errors of both under- and over-redaction, including a transcript from the grand jury that indicted Ghislaine Maxwell that was entirely blacked out before the DOJ tried again and redacted what appears to be just victim-related information. Of course there’s the ever-present question of whether all redaction “errors” are errors, or whether this administration — sent into a litigious panic months ago over the Wall Street Journal’s reporting of a skeevy letter wishing Epstein a happy 50th birthday that bore Trump’s signature in the guise of public hair for an hourglass female figure — has its thumb on the scale for the president.

Meanwhile, the Pulitzer Board, facing ongoing defamation litigation from the president, has made discovery requests including for extensive medical, financial and tax records from the president. The board may well be entitled to these in discovery, but don’t get your hopes up too much: the president can likely avoid disclosure of medical information if he agrees to forego claims that the Pulitzer statements caused harm to his physical or mental health; the financial information, meanwhile, would be under a protective order, and absent a leak (always possible) we likely wouldn’t get to see it.

A Los Angeles man who towed an ICE vehicle around the block during a raid was acquitted of stealing government property, a reflection of local discontent with the immigration crackdown in the area — still, we would still not generally advise you to tow government vehicles. Milwaukee Judge Hannah Dugan was less fortunate: she was convicted in federal court of obstructing an effort by federal immigration agents to detain someone she had called to her courtroom. And Caroline Ellison, former partner to Sam Bankman-Fried in multiple senses of the term, has been sprung from Club Fed in Danbury, Connecticut.

Speaking of Sam Bankman-Fried, the New York Times reports he’s transformed himself into something of a jailhouse lawyer. His father, Stanford Law professor Joseph Bankman, told the Times his son is just trying to give back in whatever way he can: “Sam gave most of his income to charity every year he had income. Now all he has is his time to give.” Unfortunately, he seems to be about as good at jailhouse lawyering as he was at crypto investing. His key piece of legal advice seems to be that you should run your mouth, and he apparently talked former Honduran president Juan Orlando Hernández into taking the stand in his own defense, to bad effect. Oh, well.

Plus, we look at a maybe-not-so-fearsome terrorism indictment and we discuss the ongoing contempt saga that has caused Ken to feel a surprising emotion regarding Charles C. Johnson: pity.

We hope you enjoy our final episode of 2025 and we’ll be back with you in January.

Best,

Josh

Click here for a transcript of this episode.

A grand jury has refused to indict Letitia James — no, this isn’t a repeat of last week’s email; it just happened again since we last recorded. This time, it’s a different grand jury, but they reached the same result. Ken and I discuss further impediments to the resurrection of the cases against her and James Comey — in the Comey case, the government is going to have to jump through more hoops if it wants to look through any of Daniel Richman’s files — and there is one breaking bit of news after we taped: White House Chief of Staff Susie Wiles told a reporter on the record that the case against James constitutes “retribution.”

That, plus a discussion of the unlikely-to-matter pardon of former Colorado election official Tina Peters, is for free subscribers this week. Paid subscribers also get:

• A look at a lawsuit from the National Trust for Historic Preservation which aims to stop the construction of Trump’s new White House ballroom.

• Another trial court win for Gavin Newsom as he tries to end Trump’s activation of the California National Guard (though the outlook in the appeals courts is more dubious).

• Costco’s lawsuit seeking return of its tariff payments under IEEPA, and why Costco would sue now, long after a few plaintiffs stood up to bring a test case but before the Supreme Court rules on it.

• And the order that has, for now, freed Kilmar Abrego Garcia to return to Maryland.

We hope you enjoy the episode,

Josh

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On this week’s Serious Trouble, Ken and I look at more news in the Letitia James and James Comey cases: DOJ tried to re-indict James, but they got a no-bill. In the Comey case, the government says it’s being stymied by a motion from Comey’s friend and sometime-lawyer Daniel Richman, who seeks the return of digital files the government seized from him. For now, Richman has a temporary restraining order that’s tying the government’s hands, but Ken thinks the DOJ will succeed at getting it dissolved. Meanwhile, Lindsey Halligan is still running around, acting like she’s the U.S. Attorney (even though the fact that she isn’t is why these cases got dismissed), but Alina Habba has thrown in the towel, moving to main Justice to advise Pam Bondi and declaring “you can take the girl out of New Jersey, but you cannot take the New Jersey out of the girl.”

We also look at charges against Brian Cole Jr., who’s accused of the attempted pipe bombings at the RNC and DNC nearly five years ago, and possible reasons why the FBI was able to identify him now but not in the immediate aftermath of the attack. We look at shadow docket action that saved Republicans’ Texas remap, we discuss Charles C. Johnson’s latest misadventures that have landed him in jail for contempt of court, and we consider why an embarrassing police report about Rep. Nancy Mace’s airport meltdown became public.

We hope you enjoy the episode,

Josh

Click here for a transcript of this episode.