If At First You Don't Succeed...

U.S. District Judge Cameron Currie issued her ruling as to whether Lindsey Halligan, who purported to serve as interim U.S. Attorney for the Eastern District of Virginia, was lawfully appointed. In a word, the Judge's answer is: No. Currie, a senior district judge from South Carolina, was assigned to hear the motion to avoid a conflict of interest with the judges in Virginia's Eastern District.

Currie's decision was not unexpected. And it follows similar decisions finding that other U.S. Attorneys were unlawfully appointed, including Alina Habba in New Jersey and Bill Essayli in the U.S. Attorneys' Office in the Central District of California.

This fiasco saga began when Trump nominated Eric Siebert to serve as U.S. Attorney for the Eastern District of Virginia. Unlike Essayli in California, his nomination was unopposed by the two Democratic senators from his state. He was awaiting Senate confirmation and was serving in an interim capacity. Under the law, he could only serve for 120 days in that role. Once that time elapsed, it then fell to the district court to put someone in that position, and they decided to keep Siebert in the role. It was only after Siebert expressed his reluctance to pursue criminal charges against New York AG Letitia James and former FBI Director James Comey that he was forced out of the position.

After Donald Trump publicly called for criminal charges to be filed against both James and Comey, Lindsey Halligan was then named as "interim" U.S. Attorney despite the fact that the 120 days had already expired, and the law does not allow successive interim appointments. Given that, it was a pretty easy question for the judge to decide, and she concluded the appointment was unlawful.

Since Halligan was unlawfully serving as U.S. Attorney, everything she did in that role was unauthorized and invalid. So, the Judge had to decide what happens to the cases against Comey and James. To address this, Currie closely examined Halligan's role in the grand jury proceedings. Not only was Halligan the only person to prepare and sign the indictments, she was the only person from her office to present the case to the grand jury. Because she acted alone, both indictments were improper. "This case presents the unique, if not unprecedented, situation where an unconstitutionally appointed prosecutor, exercising 'power [she] did not lawfully possess,' acted alone in conducting a grand jury proceeding and securing an indictment. In light of the near complete control that prosecutors wield over the grand-jury process, such an error necessarily 'affect[s] the entire framework within which the proceeding occurs...'" wrote Currie.

The Court also found that AG Pam Bondi's attempt to retroactively appoint Halligan as a "special attorney" was improper. While Halligan is indeed special, the Court held that "the Government has identified no authority allowing the Attorney General to reach back in time and rewrite the terms of a past appointment." Likewise, Bondi's argument that she "ratified" Halligan's actions after the fact and somehow made them legal was unpersuasive. "The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street—attorney or not—into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law."

Given that the indictments are invalid, the court dismissed both cases. But Currie dismissed them without prejudice, meaning the DoJ could re-indict. With respect to Comey, however, the problem for the government is that the statute of limitations ran its course on September 30, so that ship has likely sailed.

Meanwhile, flying under the radar is the Judge's order that only the district court has the authority to appoint an interim U.S. Attorney for the Eastern District of Virginia until Trump nominates someone who is confirmed by the Senate. So, conceivably the Court could ask Siebert to resume that role. That would be a poke in the eye to Trump, as we already know Siebert has no intention of re-indicting either James or Comey.

There's also another wrinkle to this story that could affect whether Letitia James is re-indicted. Bill Pulte, the guy currently heading up the Federal Housing Finance Agency, and who is ginning up all these alleged mortgage fraud cases, is himself under investigation for improperly combing through private data. Pulte has been a thorn in the side of other Trump officials along with Ed Martin, the self-appointed "weaponization" czar who's been shuffled around and is currently Jeanine Pirro's problem in the D.C. U.S. Attorney's office. Given the embarrassing missteps in these cases, they could make nice scapegoats and give the administration a way to save face and quietly move on from these overtly political prosecutions.

The other option in the James and Comey cases is an appeal, which the government says it will pursue. They might want to think twice about that. Yesterday's dismissals were on the relatively technical issue of the legality of Halligan's appointment. But the cases are full of other holes that have yet to be scrutinized by a judge, among them misconduct in front of the grand jury and vindictive and selective prosecution. The administration might want to consider taking its ball and going home, before suffering more and larger black eyes here. Of course, this group is not known for strategic thinking, so they will probably continue to tilt at very, very stupid windmills. (L)

...Try, Try Again?

Whatever happens with Letitia James and James Comey, the Trump administration has a new target in its sights. In timing that presumably wasn't coincidental, as it came within minutes of the news of the James/Comey dismissals, the Department of Defense posted a message to eX-Twitter announcing that it's launching an investigation into Sen. Mark Kelly (D-AZ), in response to the video that he and five other Democratic members of Congress recorded and released this week:

The Department of War has received serious allegations of misconduct against Captain Mark Kelly, USN (Ret.). In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures. This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.

The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces. Any violations will be addressed through appropriate legal channels.

All servicemembers are reminded that they have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful. A servicemember's personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.

Although this was issued in the name of the entire Department, it can hardly be doubted that this came directly from Secretary Pete Hegseth. Whether Hegseth was undertaking one of his own personal crusades, or he was trying to please a boss whose fee-fees were hurt by the James/Comey setbacks, or both, is something only he knows.

What is much clearer is that if Hegseth was trying to find an even weaker cause of action than the ones used against James and Comey, he most certainly succeeded. Military law is sometimes a bit wonky, and there are some differences between it and civilian law, but here are four giant problems with any sort of legal action against Kelly:

1. Kelly is a civilian, and so not subject to the Uniform Code of Military Justice anymore (except under very narrow circumstances, which do not apply here). It is true that active-duty military have greater constraints on what they can say publicly. It is equally true that you do not permanently encumber your First Amendment rights when you join the military, and that you go back to being able to speak as you see fit (within the bounds of civilian law) once you separate from the armed forces.
   
   
2. Not only is Kelly a civilian, he is also a United States Senator. It is not clear where the video was recorded, because a background filter was used, but it was likely in his Senate office. If so, then he is likely covered by the Speech or Debate Clause, which actually gives him far greater latitude to speak his mind than an ordinary citizen would have.
   
   
3. Because of the nature of the video (with the six speakers taking turns), the most "provocative" thing that Kelly personally said was: "Our laws are clear: You can refuse illegal orders." For the record, here is everything else he personally said: "I'm Senator Mark Kelly," "I was a captain in the United States Navy," "We want to speak directly to members of the military," "This administration is pitting our uniformed military," "Like us, you all swore an oath," "And that it's a difficult time to be a public servant," "Your vigilance is critical," "And who we are as Americans," and "Don't give up."
   
   Nothing there is remotely actionable. His most direct statement—"You can refuse illegal orders"—is a fact, and repeating facts is not actionable. Even if Kelly had said "I really think soldiers should disobey their orders," that is STILL not actionable. Under the Brandenburg test, for speech to be punished by the government, it has to be "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action." In other words, Kelly would have to say something like, "Your commander just ordered you to conduct a reconnaissance of the area immediately surrounding the base where you were stationed. DO NOT DO IT."
   
   
4. The charge that members of the Trump administration, including Trump himself, are bandying about, is sedition (or seditious conspiracy). That sounds scary, which is presumably why Trump likes to use the word as if it were a billy club. And it actually is scary, because it means trying to overthrow the government. But of course, Kelly and his five colleagues did not come within a country mile of suggesting the government should be overthrown.

Right now, John Bolton is undoubtedly jealous. He wishes the case against HIM was this weak.

And then there are the politics of this persecution-masquerading-as-prosecution. Kelly is a war hero, who flew more than three dozen combat missions during the Persian Gulf War, and who received two Defense Superior Service Medals, one Legion of Merit, two Distinguished Flying Crosses, four Air Medals and a chestful of other decorations. That's pretty good and then, after all that, he was an astronaut. Fighter pilot and THEN astronaut? That was the fantasy of approximately 99% of Baby Boom-generation males. If the next Captain America turns out to be Mark Kelly under the mask, would anyone really be surprised? Certainly, this is not the ideal opponent to face off against when you're trying to win battles in the court of public opinion.

If Hegseth had half a brain, he'd see the legal and PR problems he's up against, and he'd quietly drop this whole matter (which, by the way, Kelly and the Democrats are already using for fundraising). That said, if Hegseth had half a brain, he would never have traveled down this stupid road, and tilted at this very stupid windmill, in the first place. So, we have to assume he'll pursue this with Don Quixote-like vigor until a judge tells him to pound sand in, oh, about 6 weeks. (Z)

Incidentally, Mark Kelly Has a Point

Again, neither Mark Kelly, nor any of the other five Democrats, offered any specifics as to what illegal orders they might have in mind. And when they have been asked about the matter since releasing the video, they have basically demurred. But they clearly think there's already a problem, or that there will soon be a problem. Otherwise, why record and release that video?

The obvious area of concern (at the present) is the various attacks on civilian boats in the Caribbean. And even if the six Democrats are not saying openly that the strikes are illegal, there are plenty of others who are willing to say it. Indeed, if you had to pick one person who would be THE expert on whether the strikes are not legal, wouldn't that be the senior judge advocate general for the U.S. Southern Command in Miami? That person is Col. Paul Meagher, who issued an opinion that the strikes are indeed illegal. This opinion was reviewed by lawyers within the White House, who are undoubtedly crackerjack experts in both military and maritime law. Amazingly, with Donald Trump sitting a few hundred feet away, they decided that Meagher doesn't know what he's talking about, and the strikes are perfectly copacetic.

How about another opinion? The British know a thing or two about the laws of war. After all, they made many of them, and they've broken all of them. His Majesty's Government has taken a long look at what the Trump administration is doing in the Caribbean, and is not happy. So, the Brits are now withholding intelligence gathered in the Caribbean, because they do not wish to be party to illegal attacks on civilians.

Even the Trump administration itself has indirectly signaled that it knows the attacks are illegal. There have been at least a dozen strikes so far, resulting in more than 80 deaths. However, there were a couple of survivors recovered after one of the attacks. If the Trump administration was telling the truth, and these people are drug kingpins (or mules for drug kingpins), then surely the White House would want to detain these men and interrogate them for information about their activities and their network, right?

Instead, the U.S. government hustled them back to their home countries (Colombia and Ecuador). The reason is plain: Their continued presence in the U.S., and their detention at the hands of the administration, would have triggered court cases that would have raised difficult (and unanswerable) questions about the legal authority under which Team Trump is operating. The only way to avoid dealing with those questions was to send the two men home.

It really could not be clearer that the administration is operating outside the bounds of the law right now. It won't be easy to put a stop to it anytime soon, since the (slight) majority of the 535 people who have the power to do it are more than willing to look the other way. The only good news, such as it is, is that the voting public overwhelmingly opposes the attacks. According to Reuters/Ipsos, 51% of voters are opposed, while only 29% are in favor, which means "opposed" is +22 points. And the margin is even higher among independents, at +31 points (53% to 22%). So, maybe this will cause some of those look-the-other-way members of Congress to find their spines. Failing that, maybe it will cause some of them to lose their jobs next November, to be replaced by people who WILL try to rein the administration in. (Z)

Beshear Is In...

Gov. Andy Beshear (D-KY) wrote an op-ed that was published in yesterday's edition of The Washington Post. Here's the concluding, and most important, portion:

When I first ran for governor in 2019, I narrowly won Henderson County. Since then, we've opened the cleanest, greenest recycled paper mill there, with 320 jobs that start at almost $40 an hour including benefits. This mill is in a former coal town that, like too many places in my state, had felt forgotten.

That paper mill resurrected the American Dream for 320 families. And in 2023, I won Henderson County by double digits.

That's part of what Democrats can do to win in the areas that have been slipping away. Another is to start talking like normal human beings again. We're not going to win the messaging battle if we say that Trump's policies make people "food insecure." No, they make people hungry. Kentucky was hit hard by the opioid epidemic. I didn't lose friends and acquaintances to "substance use disorder"; I lost them to addiction. Addiction is hard, it's mean, and it kills people. So when people triumph over it, we should give them the credit they deserve by calling it what it is.

Finally, we have to start communicating our "why." For me, it's my faith. I vetoed the nastiest piece of anti-LGBTQ legislation in the country knowing full well that the Republicans in the Kentucky legislature passed it to use in an election year. But tens of millions of dollars of misleading attack ads against me didn't work. Why? Because I gave Kentuckians the respect of explaining my veto—that I believe all children are children of God and that I didn't think the legislature should be picking on vulnerable kids.

Democrats are good at explaining our "what." Let's get good at explaining our "why."

That's how we will win back the American people. We have to do the hard work of convincing American families that Democrats are the party committed to addressing their day-to-day concerns, that we believe in a brighter future for their children and that we will always give them straight talk. That we will do, in other words, what Donald Trump and the Republicans have shown they will not.

The explainer text tells readers that Beshear felt the need to write this op-ed because he's about to commence his term as leader of the Democratic Governors Association.

Uh, huh. Undoubtedly, the American people were clamoring for a breakdown of the Governor's vision for leadership of an organization that most of them have never even heard of. So, allow us to properly translate what Beshear is really saying here. To make things a little more interesting, we present 10 different translations; readers can decide which one they like the best:

1. Magistratum praesidis anno MMXXVIII petam.

2. Iyay amyay unningray orfay esidentpray inyay 2028.

3. tera' DIS 2028 che'wI' vIgheSlI'

4. .. / .- -- / .-. ..- -. -. .. -. --. / ..-. --- .-. / .--. .-. . ... .. -.. . -. - / .. -. / ..--- ----- ..--- ---..

5.



6.



7.



8.



9.



10.

We checked the Latin with a professor of history who is fluent in the language, so it is not necessary to e-mail us with grammar corrections.

We continue to think that Democratic voters are going to be very conservative in their choice of candidates in 2028, and are not going to choose anyone who might further drive away non-college white male voters. Four of the last five Democrats to win presidential elections were personable white guys, three of those four were also Southerners, and two of those three (aka, 40% of the Democrats who have won presidential elections in the last 60 years) were Southern governors. A personable, white Southern governor is going to sound awfully good to a lot of Democratic primary voters, particularly the ones who vote in South Carolina, and the ones who vote on all-important Super Tuesday.

Meanwhile, judging by his verbiage, both in the part of the op-ed we excerpted, and in the part we didn't, Beshear is talking about the kinds of things Democrats are supposed to be talking about, and in the way they are supposed to be talking about them. And notice that he manages to do it while pointedly NOT throwing LGBTQ people under the bus.

Of course, the road to the White House is lined with the corpses of candidates who looked really good on paper, but who wilted once they were under the big, bright spotlight. Ted Kennedy. Rudy Giuliani. Gary Hart. Jeb! Will Beshear be one of those? Clearly, we are going to find out. (Z)

...And So Is... Doug Jones?

You can't beat somebody with nobody, and until yesterday, the Democrats only had a bunch of nobodies running for governor in Alabama. A hemp farmer. A perennial candidate. An online pastor. None of these people would even dent the armor of Sen. Tommy Tuberville (R-AL), who is sure to be the Republican nominee.

As of yesterday, however, the Democrats have a somebody, as former Senator Doug Jones jumped into the race. Given that he is the only Democrat to win statewide election in the 18 years since Jim Folsom Jr. was elected lieutenant governor, and given the name recognition that entails, Jones will easily clear the field of the unknowns, setting up a head-to-head showdown with Tuberville.

Cygnus foresaw this turn of events, and so has already released a poll of the Jones-Tuberville matchup. The good news for Jones is that the poll projects he will improve on the last Democrat to run for governor of Alabama (Yolanda Flowers) by 19 points. Wow! The bad news is that Gov. Kay Ivey (R-AL) won that election by 38 points, which means Jones is still 19 points in the hole.

Tuberville is, of course, dumb as a stump. Surely, he is the stupidest senator to serve in this century. In a normal world, that would be a political liability. In Alabama, in the year 2026, it most certainly is not, especially since he has the extremely relevant and all-important experience of having been a football coach. Given that "he's dumb" is not going to work, Jones has already made clear that he will focus on painting Tuberville as a carpetbagger, someone who actually lives in Florida and doesn't know or care about the issues in Alabama.

It's as good an angle as any, especially given that Southerners are not known for their love of carpetbaggers. That said, it surely is not enough to overcome such a huge deficit in the polls, and in a state that hasn't elected a Democrat to the governor's mansion since before the turn of the century. Jones' only real hope, we have to assume, is that he gets the same kind of assist he got in the Roy Moore election, and dirt about Tuberville, involving underage sexual dalliances, comes to light. Republican voters these days have an awful lot of tolerance for an awful lot of things, but underage sex stuff is apparently still a bridge too far, judging by the furor over the Epstein files.

But if Tuberville had that kind of skeleton in his closet, it surely would have come to light by now, right? It's possible that Jones knows something we don't, and that he has some very juicy oppo research he's just waiting to unleash at the perfect time. Stranger things have happened, we suppose. But until such a thing actually comes to pass, we have to assume his campaign is a lost cause. (Z)

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