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.

The criminal cases against James Comey and Letitia James were both dismissed, without prejudice, on the grounds that former insurance attorney Lindsey Halligan was never properly appointed as an interim US Attorney. Trump’s Justice Department has options: it can appeal, and/or it can try to re-indict the cases with a real prosecutor this time. But both options have problems. Grand juries may balk at re-indicting (indeed, after we recorded, there were news reports that a grand jury has already no-billed the attempt to re-indict James) and the case against Comey has a statute of limitations problem. As for an appeal, the Trump administration keeps losing across different courts on these appointment shenanigans, and even this Supreme Court might not save his efforts on this specific subject.

That conversation is for free listeners. For paid subscribers this week, we also address:

• A rare favorable ruling for the Trump administration from Judge James Boasberg.

• Eric Swalwell’s lawsuit against Bill Pulte, who wears several hats as Federal Housing Finance Administration head, Personal Mortgage-Fraud Hunter for Donald J. Trump, and personal hate object for Treasury Secretary Scott Bessent. And now, defendant!

• Peter Skandalakis’s tortured-but-ultimately-convincing, argument that the Georgia RICO case is terminal and should be taken off life support.

• Megan Thee Stallion’s “big” ($59,000) win in her defamation lawsuit against a live-streamer — and why she’s not likely to get much in attorney’s fees on top of that.

• Probation for Jacob Wohl and Jack Burkman, and

• A sharply-worded minute order from Judge Amy Berman Jackson trying to ensure that she won’t be the only long-suffering person around these parts.

We hope you enjoy the episode,

Josh

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Congress has voted overwhelmingly to require the release of the Epstein files. Ken and I discuss what’s likely to be in those files, what the administration might do to undermine the intent of the law requiring release, and whether we really ought to learn so much about this case.

That conversation is for free subscribers. Paying subscribers get much more this week — a look at the rapidly increasing number of problems with the James Comey indictment, and the key question that will face Judge Michael Nachmanoff: are all the things Lindsey Halligan did wrong reason enough to dismiss this case with prejudice, foreclosing a future prosecution, or will the U.S. Attorney’s office get a second chance to do things more competently?

We also have an update on the National Guard cases, and an interesting question from the Supreme Court about the meaning of a law restricting the president’s ability to deploy it over a governor’s objection. We look at a really, really intemperate dissent in the Texas redistricting case — one that may nonetheless offer a roadmap for how the Fifth Circuit or the Supreme Court could reinstate the Republican-drawn map that’s currently been struck down. We have an update on Tina Peters, and we look at two defamation cases, one where Trump has again lost to CNN, and one brought by rapper Megan Thee Stallion against a Twitch streamer who, in the eyes of the state of Florida, does not count as a media outlet.

To get all that, click below.

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We hope you enjoy the episode,

Josh

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Sandwich Guy is free! Sean Dunn was acquitted of simple assault by a jury of his peers — Ken and I discuss whether to think of this as a case of jury nullification, and what you should expect to happen to you if you throw a sandwich at a law enforcement officer. Meanwhile, Lindsey Halligan continues to face difficulties in her case against James Comey, and the Justice Department generally is having trouble finding a sufficient number of qualified attorneys. That’s all in this week’s free show.

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There’s much more this week for paying subscribers, including:

• A look at why Justice Ketanji Brown Jackson chose to delay a ruling that would have forced the Trump administration to pay SNAP benefits. (This issue is likely about to be moot, with the government reopened.)

• U.S. Senators voted themselves a legal right to sue if the government obtains their phone records, and the House grudgingly went along. The provision might get repealed after an outcry. But if it doesn't, does that violate the 27th Amendment? And even if it does, is there any recourse?

• The adventures of Bill Pulte.

• Federal pardons for participants in fake elector conspiracies (who really mostly need to worry about state charges anyway).

• Another victory for Ann Selzer.

• And more!

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We hope you enjoy the episode,

Josh

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On this week’s show, Ken and I look at two court decisions directing the Trump administration to continue sending SNAP (food stamp) funds to states, despite the fact that Congress has not passed a government-funding bill with additional funds for SNAP. The administration has chosen not to appeal these orders — likely not relishing the politics of withholding SNAP funds — but the SNAP contingency account only has enough money to fund the program for a few weeks anyway, so the legal situation may get more complicated if the shutdown does not end soon.

Meanwhile, James Comey has filed more motions. One seeks to dismiss his indictments on the grounds that his answers to questions were literally true. Some of his arguments about literal truth would strain belief in an ordinary conversation — “Mr. Comey’s statement that he stood by his prior testimony was truthful regardless of whether that prior testimony was itself truthful,” his attorneys say — but as Ken notes, the bar for proving perjury is supposed to be high, and prosecutors and investigators try to frame questions very precisely so witnesses can’t wiggle their way through (non-)answering. But Comey was being questioned by a U.S. Senator, who was trying to grandstand, not lay a trap for a false statement indictment. Comey also wants a “bill of particulars” — as Ken notes, this is very difficult to get, but a government motion filed after we recorded actually contains a lot of the information Comey said he was looking for anyway.

That’s this week’s free show. Paying subscribers also get our look at legal wrangling over federal immigration enforcement in Chicago (a federal judge there has been told she can’t force the CBP chief for the area to explain himself in her courtroom every day), and at federal charges for a congressional candidate arrested at an anti-ICE protest there. We also talk about some AUSAs who were placed on leave for daring to call January 6 a “mob” “riot” in a sentencing memo, and about a Tennessee man who spent a month in jail on the extremely thin claim that a political meme he posted was a terroristic threat.

And we look at a very strange scandal at the FDA. The pharmaceutical company Aurinia is suing George Tidmarsh, who was a top official overseeing drug approvals at the agency until about five minutes ago, for defamation. The company alleges that Tidmarsh, a former pharmaceutical executive, had a longstanding business dispute with one of Aurinia’s investors, Kevin Tang, and that Tidmarsh used his recently-obtained perch at the FDA to undermine Tang’s business interests, including by making a defamatory claim on LinkedIn that one of Aurinia’s drugs was ineffective and should be pulled from the market. The LinkedIn post caused Aurinia’s stock to lose hundreds of millions of dollars of market capitalization. Tidmarsh — who had also, according to the lawsuit, sent Tang a number of I’m-not-going-to-be-ignored emails reminiscent of Glenn Close in Fatal Attraction and made a demand for payments that Tang understood to be a solicitation for a bribe — ultimately pulled down the LinkedIn post and said it had been made in his personal capacity. (As we discuss in the show, the statements being non-official is important legally and makes Aurinia a lot likelier to actually be able to win damages.) Tidmarsh resigned from the FDA on Sunday, the same day the lawsuit was filed, and Trump administration officials told the Associated Press they have “serious concerns about his personal conduct.” Ken says he would ordinarily advise Tidmarsh to get a good criminal lawyer in addition to a civil one, but then, who knows if corruption is even illegal anymore these days.

We hope you enjoy the episode,

Josh

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This week, both James Comey and Letitia James continue to seek dismissal of the criminal charges brought against them, and one argument they’ve both made will be considered jointly by a judge from another state.

Comey and James argue that Lindsey Halligan was not legally appointed as interim U.S. Attorney for the Eastern District of Virginia. If the president’s opportunity to make interim appointments has expired, the judges of a district are allowed to make a new appointment. The judges overseeing their cases don’t want to rule on the legality of an appointment that might otherwise fall to them; so, instead, Judge Cameron McGowan Currie of the District of South Carolina will consider the issue. This issue is also live in Los Angeles; a judge all the way in Hawaii is handling the challenges to Bill Essayli’s appointment to run prosecutions for the Central District of California, but that office’s prosecutions are less exposed to this line of attack because Essayli hasn’t been acting alone as much as Halligan has. (Indeed, one matter Judge Currie seems to be looking into is exactly which tasks related to the indictment Halligan handled personally.)

We also discuss a lesson from the Barry Bonds steroids case that could be relevant for Comey, and we look at a complaint James has made about Halligan’s communications about grand jury proceedings to reporter Anna Bower of Lawfare.

That, plus a look at Ninth Circuit action in the national guard cases and a look at a sloppy defamation lawsuit from Paul Ingrassia, constitutes this week’s free show.

Beyond the paywall, we talk about an effort from the D.C. bar to impose new burdens on law firms that might, theoretically, enter into settlement deals with the government — and why it would be a tall order to turn the bar’s abstract memo on the topic into actual disciplinary action against the firms that entered actual settlements. You’ll also get our conversation about when a state could prosecute an ICE officer for breaking state law (not never, is the short answer), and our discussion of how some judges are now getting in trouble for their misuse of AI in drafting opinions.

We hope you enjoy the episode,

Josh

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John Bolton has been indicted, and unlike with some of the president’s other enemies, the charges against him do not look slapdash or politically motivated. He should be very afraid that this indictment, which arose out of an investigation that gathered steam during the Biden administration, will stick. Bolton is charged with mishandling classified information — mostly, writing down contemporaneous notes of sensitive meetings he attended as National Security Adviser, and then emailing them to his wife and daughter over nonsecure platforms, apparently as part of a process for writing a book. Not great! Oh, and prosecutors say Iran hacked those emails. Oops! Plus, when Pete Hegseth’s Signal scandal happened, Bolton went on national television and made a bunch of statements making clear that he understands that it’s illegal to mishandle classified information. Oh, bother!

As Ken and I discuss, Bolton will likely allege vindictive prosecution, and the president has given him some ammunition, what with all those public statements demanding that his enemies be prosecuted. But the government will have a strong argument in response: whatever animus the president may feel, this investigation was proceeding through normal channels, it predated Trump’s return to office, and has been happily pursued by career prosecutors with no axes to grind. James Comey, on the other hand, has already made a strong argument that he would not have been prosecuted but for Trump’s vindictiveness — and that his indictment is defective for other reasons besides.

That, and a look at Trump’s apparent demand that the Justice Department pay him $230 million for the indignity of being prosecuted, is what we cover on this week’s free episode.

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Paying subscribers also get a dive into two wild NBA-related indictments that came down this week in the Eastern District of New York. One indictment alleges that conspirators, including Portland Trail Blazers coach Chauncey Billups and also members of four of New York’s Italian mafia families, ran rigged poker games to fleece unsuspecting players out of millions of dollars. The other alleges a conspiracy to fraudulently bet on NBA games — or more specifically, on propositions about NBA games — through the use of inside information. Both of these cases have crazy factual details, and the NBA betting one also involves some interesting, novel legal issues. Both seem likely to eventually be the subject of movies.

Also this week: an update on lawsuits over National Guard deployments (and some theories about why an unfavorable ruling for Gavin Newsom did not get a rehearing en banc), a look at the case demanding that Speaker Mike Johnson hurry up and seat the Democrat who won a special election in Arizona several weeks ago, and an update on Hunter Biden-related litigation.

Want to hear all that? You know what to do.

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We hope you enjoy the episode,

Josh

P.S. Did you know I have a new weekly politics podcast with Megan McArdle and Ben Dreyfuss? It’s called Central Air. This week, we had a really interesting conversation with Matt Yglesias about Democrats’ great difficulty with immigration politics. Hit this button to check out the episode and follow us on Substack!

Go to Central Air

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Letitia James has been indicted, as President Trump’s retribution campaign continues. (So has John Bolton, but that happened after we recorded — we’ll look at his indictment next week.) And while the Bolton indictment has a forbidding, professional feel, the James indictment does not, and is likely to be vulnerable to some of the same attacks James Comey is raising against his own indictment. But then, is the point even to get a conviction? Or is the process the entire punishment here?

Meanwhile, another US Attorney has been forced out for insufficient eagerness to investigate the president’s enemies, and the Wall Street Journal reports that Ghislaine Maxwell’s arrival to the Club Fed in Texas has made life less pleasant for the other inmates there.

That’s for free subscribers. Paying subscribers this week also get our look at Drake’s humiliating loss in his defamation lawsuit against his own record label, in which a federal judge had to explain to him how a rap battle works, and that a statement of opinion can’t become defamatory just because it’s made in a song that was listened to way more than your own songs.

Also for paying subscribers we have a discussion of a split decision by a panel in the Sixth Circuit, saying schools may prohibit clothing with implied vulgarities, such as two students’ sweatshirts that declared “Let’s Go Brandon.” Ken thinks the court got this one wrong, and we discuss whether all the tests here are basically just made up. Plus we look at ICE enforcing a little-known law that green card holders must actually carry their green cards (apparently just with fines, so far), and at the State Department bragging that it’s revoking visas held by non-citizens who said mean things about Charlie Kirk.

There’s also a preview of my new podcast Central Air, in which I discuss with my co-hosts why we wanted to make a weekly politics podcast from the center.

To get all that, click here.

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We hope you enjoy the episode,

Josh

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James Comey has been arraigned and has a trial date of January 5. Both his lawyer — prominent former U.S. Attorney Patrick Fitzgerald — and Judge Michael Nachmanoff appear set on moving rapidly to trial, and the government is rushing to be ready. Fitzgerald also indicated he will file four motions for pre-trial dismissal, on grounds of selective and vindictive prosecution, grand jury misconduct, improper appointment of interim U.S. Attorney Lindsey Halligan, and outrageous government misconduct. Some of those motions will be helped by the message from the president demanding Comey’s prosecution that does really appear to have been intended as a private message for Attorney General Pam Bondi, accidentally broadcast to the world.

Meanwhile, Sean Combs has been sentenced to 50 months in prison. Because he’s already been in custody for a year and because of opportunities afforded to him under the First Step Act, he’ll likely be out of prison somewhere between a year and two years from now. This sentence was far below the guideline, and Ken and I discuss the best way to lobby for a lenient sentence when your client is very fortunate and prominent, without sounding like you’re saying the rich and famous deserve to get off easy.

That’s today’s show for free subscribers. If you are a paying subscriber, you get much more:

• A look at an unexpected criminal complaint about the highly destructive Palisades Fire, in which federal prosecutors allege that an Uber driver set a smaller fire that begat the major fire.

• Temporary restraining orders in the case over Trump’s effort to deploy national guard troops to Portland, and what appeals courts are likely to do with them.

• What to make of Supreme Court’s choice to finally take on the Lisa Cook case, and the procedural split it is likely to emphasize among the court’s conservative justices as they ponder what to do with the special, unique, quasi-private institution in a long historical tradition that is the Federal Reserve.

• A lengthy and forceful appeals court ruling upholding birthright citizenship.

• Another vindictive prosecution claim that has legs, this time from Kilmar Abrego Garcia.

• And a Kardashian-Jenner-Ray-J RICO-defamation case. Wow!

We hope you enjoy the episode,

Josh

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Newly minted interim US Attorney Lindsey Halligan had to race against the clock to get James Comey indicted ahead of a statute of limitations. She brought three charges to a grand jury and was no-billed on one. The true bills she got on the other two were by votes of 14-9 — unusually weak. But an indictment is an indictment, right? Maybe not. As Ken and I discuss, Comey’s attorneys are likely to seek information about her performance before the grand jury, looking for possible reasons to seek dismissal of the indictments. Conservative legal commentator Ed Whelan even suggests Halligan hasn’t been properly appointed to the interim job — another basis on which Comey could seek to have his indictment thrown out. Federal courts often move at a snail’s pace, but developments here may be relatively quick. Stay tuned.

Meanwhile, we have some more detail on how the FBI came to be conducting a public corruption investigation into Tom Homan when he wasn’t even a public official. According to MSNBC, an associate of Homan’s — Julian “Jace” Calderas — suggested repeatedly to undercover FBI agents that they might try giving him cash in exchange for future government contracts. Sometimes, if something interesting like that falls in the FBI’s lap, they’ll just feel inclined enough to pursue it. By the way, when MSNBC got Calderas on the phone, he said “I know nothing about this… If this is the case, I’m going to need to talk to my lawyer.” Remember, your right to remain silent doesn’t just apply to questioning from the police — it also applies to the media.

That — plus a discussion of Jeanine Pirro’s unusual use of a local grand jury to obtain a federal indictment in Washington D.C. — is this week’s free show. For paid subscribers, we also discuss:

• The Trump administration’s novel use of the Freedom of Access to Clinic Entrances Act — which also protects access to houses of worship, not just to abortion clinics — to sue pro-Palestinian activists who ended up in a brawl outside a New Jersey synagogue;

• Judge William Young’s righteously angry ruling holding that the Trump administration has violated immigrants’ First Amendment rights by revoking their visas over their protest activity;

• Google’s high-dollar settlement of a case about YouTube that Donald Trump already lost, which will be used to finance the grand new ballroom at the White House;

• Smartmatic’s partial summary judgment win against Mike Lindell over his stolen election claims; and

• Harvard’s countersuit against former Harvard Business School professor Francesca Gino, whom they de-tenured over research fraud, most famously including a fraudulent paper about dishonesty.

We hope you enjoy the episode,

Josh

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