Dem
47
GOP
53
The animosity between Donald Trump and his minions and the federal judiciary is reaching a fever pitch. Exhibit A is yet another defeat in Trump's ongoing efforts to steal future elections. In service of her Dear Leader, "Attorney General" Pam Bondi has been going around to various states to demand voter rolls and other non-public information about registered voters. She sent a letter to Michigan demanding full names, birth dates, addresses, driver's license numbers and partial social security numbers for all of the state's voters. When Michigan told the DOJ to pound sand, it sued. And now, the DOJ has lost. Judge Hala Jarbou, chief judge for the U.S. District Court for the Western District of Michigan and a Trump appointee, dismissed the suit on the grounds that federal voting laws do not require states to turn over the information demanded. This follows dismissal of similar suits in Oregon and California. Cases from the other states are still pending.
Exhibit B is the DOJ's defiance of court orders stripping U.S. Attorneys of their titles after a finding that they were unlawfully appointed. While Alina Habba and Lindsey Halligan eventually stepped down, Bill Essayli and Sigal Chattah are still serving as the top federal prosecutors in Central California and Nevada, respectively, despite also being disqualified (though Trump has nominated a permanent replacement for Chattah).
Last month, a court found that John Sarcone was unlawfully serving as U.S. Attorney for the northern district of New York. Instead of stepping down, he assumed the title of "first assistant" and continued in the top job. But without Senate confirmation, even a lawful appointment is only temporary and when his 210-day term expired this week, the Vacancies Act states that, in the absence of a Senate-confirmed U.S. Attorney, the district court judges in that district must select a U.S. Attorney. On Wednesday, the judges appointed Donald Kinsella to the position and swore him in during a private ceremony. On Thursday, the White House purported to fire Kinsella by e-mail. This was followed by a social media post from Deputy AG Todd Blanche, firing Kinsella and excoriating the judges for doing their jobs.
It's unclear what happens now or if the district judges have any recourse. There's no indication that the Department of Justice has appealed the ruling disqualifying Sarcone; it seems to just be ignoring it. Conceivably, the judges can file a suit for declaratory relief to get a ruling on the legality of their appointment of Kinsella. But more to the point, to have the DoJ publicly defy all the judges in a particular district and then brag about it on ex-Twitter is astounding. It also compromises public safety. The reason those judges refused to keep Sarcone in the job is because he is unqualified and incompetent. Kinsella, by all accounts, is an experienced federal prosecutor, which is critical for these offices to function effectively.
On another front, after Sen. Mark Kelly (D-AZ) exercised his First Amendment rights by recording a video reminding military personnel of their rights to refuse illegal orders, he was censured by Secretary of Defense Pete Kegseth, er, Hegseth and a hearing was scheduled to reopen the determination of his retired grade, including his pay grade (he retired from the Navy with the rank of Captain). Kelly sued to stop this proceeding from going forward, arguing that as a retired military officer, he enjoys the same rights as any other American, including the right to speak out against the unlawful use of the military.
Yesterday, Judge Richard J. Leon, district court judge for the District of Columbia, agreed and granted Kelly's motion for a preliminary injunction prohibiting any change to his retired grade. Leon (a George W. Bush appointee) was not subtle in his rebuke to Hegseth and the Department of Defense: "This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, 'You don't need a weatherman to know which way the wind blows.'" As we've written, federal judges are serious and typically understated in their written opinions. Here, Leon's ruling contains at least seven exclamation points. One example: "To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!" And our personal favorite: "Horsefeathers!" This is one exasperated judge.
Leon agreed with Kelly that retired military personnel do not have the same restrictions on speech that active-duty military do. And that is doubly true when one is also a sitting member of Congress, as Kelly is. The court also agreed that Hegseth and the Department of Defense censured him and initiated a proceeding to downgrade his grade and his pay to retaliate against Kelly for exercising his First Amendment rights. The judge cited an amicus brief signed by 41 retired officers who said they are afraid to participate in public debates on the conduct of government out of fear of reprisal. "That is a troubling development in a free country!" The Court also found that Kelly had suffered "irreparable harm" as a result of the government's violation of his free speech rights: "And the Supreme Court recently confirmed that '[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'"
Judge Leon concludes, "Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department's approach to these issues."
Where this case goes from here is anyone's guess but Hegseth can, of course, appeal. That would be incredibly short-sighted, as it would give another, higher court a chance to extol Kelly's military service, his bravery and all his sacrifices. In Leon's written opinion, he devotes several paragraphs to Kelly's background and his determination to continue to assert his rights in the face of intense governmental pressure to shut him up. He even compares Kelly's criticisms to Alexander Hamilton's questioning of "President Adams's fitness to command during the Quasi-war." Of course, Hegseth specializes in short-sighted. Cue the woodwinds and the snare drum. (L)