“As I wrote in August 2020, there was effectively a dam preventing the president’s corrupt or political pressures from crashing through and flooding the DOJ — but, as Trump’s term stretched on, that dam began to spring more and more leaks.
Berman, in his telling, was part of the dam. And according to the Times, his book provides new details on how he faced private pressure to prosecute two Trump targets in particular: former Secretary of State John Kerry and former Obama White House Counsel Greg Craig. In both cases, Berman reveals a troubling pattern: Once he concluded no charges were merited, top Trump appointees working under the attorney general simply reassigned each case to another US Attorney’s office in the hope of a different outcome.”
…
“Despite Trump’s many efforts to bend the Justice Department to his whims, officials resisted many of his demands. None of his big targets — Clinton, Kerry, the Bidens, Comey, and McCabe — were prosecuted, and the Department largely did not assist him in his attempts to overturn the 2020 election result.
But if Trump should return to power after 2024, there’s no guarantee that resistance will continue. He would no longer need to constrain himself for reelection, and after January 6, he’s embittered against traditional Republican establishment forces he believes abandoned him.
So Trump and his team may well become more skilled at identifying and empowering true loyalists who really would act in Trump’s personal interests, defying law or tradition. Indeed, his recent legal peril will make that of paramount personal importance to him.
Furthermore, Trump allies have recently been floating a plan to purge many career government officials, including at the Justice Department and FBI, should he return to power, according to Axios’s Jonathan Swan. Trump has repeatedly argued that the Justice Department has been politicized against him, after four years of trying to politicize it against his enemies. So there’s every reason to expect he’d go much further in his second term — including to totally unprecedented places.”
“In case there is any doubt, the Justice Department has very good reasons to keep its lips shut about ongoing criminal investigations.
One reason is fairly obvious. If prosecutors and law enforcement speak openly about a criminal investigation, they could reveal information to a suspect that could undercut the investigation. Trump could conceivably destroy evidence if he knows the DOJ is looking for it, or he might attempt to intimidate a witness if he knows that witness is one of the DOJ’s sources.
Indeed, while the Supreme Court has said that “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents,” lower courts have held that this right can be overcome by the government’s need to keep sensitive information about ongoing investigations secret. As the US Court of Appeals for the 11th Circuit, which oversees federal cases in Florida, said in one case, documents may be kept secret when there is a “substantial probability that the government’s ongoing investigation would be severely compromised if the sealed documents were released.”
(That doesn’t necessarily mean that the entire warrant affidavit in Trump’s case must be kept secret, but it does mean that it will likely remain under seal if it could compromise the DOJ’s investigation of Trump.)
There’s also another reason the Justice Department rarely speaks about ongoing investigations: Doing so is unfair to criminal suspects — including Trump.
If Trump is eventually indicted for an alleged violation of a federal criminal law, he has a right to stand trial and will have an opportunity to present evidence that he is, in fact, innocent. Assuming that he does not accept a plea deal, a jury will weigh the evidence and return a verdict of “guilty” or “not guilty.” Technically, a “not guilty” verdict would not be a declaration that Trump is actually innocent — it merely means that the prosecution failed to prove its case beyond a reasonable doubt — but it would go a long way toward clearing the cloud of suspicion that hangs over anyone charged with a crime.
But if the Justice Department speaks openly about a criminal investigation before anyone is actually arrested, they place that cloud over a criminal suspect’s head without giving that suspect a forum to vindicate their reputation. As former deputy attorneys general Jamie Gorelick and Larry Thompson explained in a 2016 Washington Post op-ed, the Justice Department’s “long-standing and well-established traditions limiting disclosure of ongoing investigations” that might influence elections prevent prosecutors from “creating unfair innuendo to which an accused party cannot properly respond.”
So we should expect the Justice Department to be very quiet from here on out about its investigation of Donald Trump, unless that investigation leads to arrests. This silence is not an attempt to stonewall. It is consistent with longstanding DOJ policies that protect both the department and anyone accused of a federal crime.”
“Idaho’s abortion trigger ban, which was passed in 2020 and is slated to go into effect on August 25, bans all abortions outright. Rather than offering a narrow list of exceptions, as other anti-abortion laws do, Idaho’s law simply provides an affirmative legal defense for doctors arrested and charged with performing abortions. If a doctor can prove by a “preponderance of the evidence” that “[he] determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman,” or if the physician has a copy of the patient’s police report of rape, such doctors cannot be found guilty of performing an illegal abortion. However, if doctors charged with providing abortions fail to meet this standard, they can face up to five years in prison.
“Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful,” Louise King, an OB-GYN at Brigham and Women’s Hospital in Boston, told NPR, referring to new abortion restrictions taking effect across the U.S. “The penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions.” Idaho’s law would likely incentivize doctors to delay care for dangerous pregnancy complications until a woman’s death is imminent.
“When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient’s emergency medical condition, it is required by federal law to provide that treatment,” Garland said during a press conference on August 2, noting that Idaho’s law “would subject doctors to arrest and criminal prosecution, even if they perform an abortion to save a woman’s life.”
The DOJ is suing Idaho over this law, arguing that its blanket ban on abortions, even when the procedure is necessary to save a woman’s life or preserve her health, violates federal law. The Emergency Medical Treatment and Labor Act (EMTALA) is a 1986 federal law requiring hospitals that receive Medicare funds (which includes the vast majority of hospitals) to provide stabilizing care to their patients before discharging them. The DOJ argues that by banning abortions when they are necessary to stabilize a patient’s medical condition (such as when an abortion prevents a deadly septic infection during an incomplete miscarriage or is necessary to begin treatment for newly diagnosed cancer), Idaho’s abortion ban violates federal law and, therefore, must be struck down in accordance with the Supremacy Clause of the Constitution.”
“The US House committee investigating the January 6, 2021, attack on the Capitol and the Trump White House’s role in it is charging ahead. But — thanks in part to the limited power of congressional inquiries — the success of their next steps depends on the Justice Department.
And at least right now, the committee appears to be losing faith in that department, and specifically in Attorney General Merrick Garland, who has thus far been reluctant to prosecute high-ranking Trump administration officials who’ve stonewalled the committee. Several members of the committee criticized Garland for failing to prosecute at least one former top Trump aide whom Congress voted to hold in contempt. In the words of Rep. Elaine Luria (D-VA), “Attorney General Garland, do your job so we can do ours.”
The committee also voted unanimously..to hold two former Trump White House aides in contempt of Congress. The former aides, trade adviser Peter Navarro and social media director Dan Scavino, both refused to comply with a subpoena seeking documents and testimony.
In the likely event that the full House agrees that the two men should be held in contempt, both could be fined and face up to a year of incarceration — though the decision whether to prosecute the two former White House aides will be made by the Justice Department and not by Congress.”
“In front of judges and in court filings, the Justice Department is engaged in a delicate rhetorical dance on the domestic terrorism issue. Seeking to satisfy a large swath of the public outraged by the Jan. 6 riot, prosecutors have declared that the event “certainly” qualifies as domestic terrorism. But they’ve kept their powder dry thus far on invoking the terrorism sentencing boost — potentially because its impact can be so severe.”
…
“Invoking the terrorism enhancement typically adds about 15 years in prison to a defendant’s recommended sentence, sets the minimum calculation at 17 and a half years, and also flips the person charged into the criminal-history category used for serial offenders.”
“One of Sessions’ final moves in office was to sharply limit when the Justice Department could enter into consent decrees. Vanita Gupta, who ran the Civil Rights Division during the Obama administration, called that policy “a slap in the face to the dedicated career staff of the department who work tirelessly to enforce our nation’s civil rights laws.” The Biden administration rolled back Sessions’ directive, and Gupta is now back at the Justice Department as an associate attorney general.
Sessions was correct that consent decrees should be used judiciously. Justice Department investigations and settlements are a heavy-handed imposition of federal authority. But they can also provide recourse for citizens who have been betrayed by rotten police departments and indifferent local governments.”
“On Wednesday, CNN Executive Vice President and General Counsel David Vigilante made a revelation sure to startle those unaware of the state’s vast power to not just seize information from journalists but bully their employers into silence about it under penalty of jail time.
“Since July 17, 2020,” Vigilante wrote, “I have been bound by a gag order or a sealing order that prohibited me from discussing, or even acknowledging, that the government was seeking to compel the disclosure of the professional email communications of CNN reporter Barbara Starr.”
The Justice Department under Attorney General William Barr had been requesting email header data and phone logs of Starr, a Pentagon reporter, dating from June 1 to July 31 of 2017, for reasons that are still unknown to any third parties aside from some federal judges operating a secret court. (Starr herself was not the target of the investigation, the feds confirmed to reporters.)
The Trump administration launched a crackdown in 2017 against national security-related leaks, an effort that led to the secret seizure of three Washington Post reporters’ phone records, which was revealed only last month. In doing so, former President Donald Trump’s DOJ prosecutors followed the rules and legal justifications established by their predecessors in the Obama administration, which prosecuted more leakers than every prior presidency combined, even charging Fox News White House chief James Rosen as “at the very least, either…an aider, abettor, and/or co-conspirator.””
…
“one of the only judges to lay eyes on the DOJ’s reasoning for harassing CNN concluded that it was based on “speculative predictions, assumptions, and scenarios unanchored in any facts.”
Commented CNN’s Vigilante: “This was the first characterization of the evidence we had seen, and it was stunning: After months of secret proceedings and heavy-handed enforcement tactics, a neutral judge said that, in large part, the emperor had no clothes.””
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“As Nick Gillespie and I wrote six years ago, “From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting ‘voluntary’ confidentiality.””
…
“while the increasing but still comparatively rare open clashes between the DOJ and news organizations tend to make headlines, the real data collection is happening every day, quietly, in the form of requests and subpoenas to social media companies and other third-party vendors.”
“That the Department of Justice sought the private phone data of US lawmakers without their knowledge is remarkable and disturbing. While details are still emerging, the exchange sets a concerning precedent about the ability of the executive branch to obtain the digital records of lawmakers as well as tech companies’ roles in complying with such orders.”
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“The DOJ’s inspector general, Michael Horowitz, announced on Friday that he will start a review of the agency’s actions under the Trump administration and will look at “whether any such uses, or the investigations, were based upon improper considerations.””
“The most alarming move from the Justice Department lately came from a surprising source: the US attorney for the Middle District of Pennsylvania, David Freed.
Many details about the underlying situation here are still murky. But on Monday, Freed’s office and the FBI began “an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections,” Freed said in a statement.
If there are reports of issues with ballots, the Justice Department should naturally investigate. But the way this information was dribbled out seemed designed to bolster President Trump’s baseless claims that mail voting is deeply flawed — when Freed’s actual findings have so far revealed no such thing.”
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“And indeed, Trump campaign spokesperson Matt Wolking quickly tweeted out Freed’s statement, writing: “BREAKING: FBI finds military mail-in ballots discarded in Pennsylvania. 100% of them were cast for President Trump. Democrats are trying to steal the election.” (Wolking eventually deleted the tweet after it had been retweeted thousands of times.)
But Freed’s longer letter about his findings so far, released later Thursday, contains nothing to back up the inflammatory “steal the election” claim. Indeed, it seemed entirely possible that the military ballots were opened accidentally because the election board staff thought they could have been ballot requests instead of the ballots themselves.
It’s also unclear whether the local election board’s practice was simply in keeping with a recent ruling from the Pennsylvania supreme court — that any mailed ballots lacking an inner “secrecy envelope” have to be discarded. Republicans in the state have supported this ruling, and Freed’s statement did not comment on the issue.
So it’s uncertain whether local officials did anything wrong at all, and there’s certainly been no evidence of a dastardly plot to steal the election. Yet Freed’s statement seemed designed to bolster Trump’s baseless claims to this effect. And ABC News’ Alexander Mallin reported that Barr had personally briefed Trump about the investigation, explaining why the White House was so prepared to pounce.”