The Trump DOJ Comedy of Errors

The Felon has long valued blind loyalty from his minions rather than competency. This is certainly true of his second regime where his cabinet is filled with billionaires with no experience in the areas of the government they now control and sycophants. Perhaps nowhere is the phenomenon more visible than in the Department of Justice under Pam Bondi, someone who in my view should be disbarred. Hundreds of career prosecutors have been fired or have sought to leave a department where competence, proper procedures, evidentiary requirements, and professionalism have been jettisoned in favor of loyal hacks who will do the Felon's bidding.  The good news, however, is that this incompetence is undermining the Felon's vengeance prosecutions and even the Texas gerrymandering effort.  All are unforced errors and the result of appointing loyalists versus those who actually know what they are don't. The revenge prosecution against James Comey is a stark example.  When no career prosecutors would file the case,  the Felon/Bondi appointed Lindsey Halligan, an insurance litigation attorney as U.S. Attorney to file the case.  To say that Halligan's handling of the case has been disastrous is an understatement. A column in the New York Times looks at the bungled Comey case and other examples of DOJ incompetence.  Here are column highlights:

I was a litigator for 21 years, and it’s safe to say that I never witnessed the level of legal incompetence that we are witnessing from the Trump administration.

Consider two stories, both from this week alone. First, on Monday, William Fitzpatrick, a federal magistrate judge who is assisting Michael Nachmanoff, the federal judge presiding over the administration’s prosecution of James Comey, the former director of the Federal Bureau of Investigation, released an opinion about a series of staggering procedural irregularities that originated with Lindsey Halligan, Trump’s handpicked prosecutor in the case.

The magistrate didn’t recommend dismissing the case (at least not yet), but he did take the highly unusual step of ordering the administration to release otherwise-confidential information about the grand jury proceedings, a move that could very well lay the foundation for dismissal.

The judge found that the prosecutors had mishandled attorney-client communications between Comey and one of his former lawyers, Daniel Richman, who is a law professor at Columbia Law School and a personal friend of Comey’s.

Attorney-client privilege is sacred in the law, and the Trump administration not only abandoned normal Department of Justice procedures for evaluating whether it had seized privileged information when it executed search warrants against Richman during Trump’s first term, it may have even used privileged information to make its case to the grand jury — a gross violation of Comey’s rights

That’s not the only administration failure in Comey’s case. The magistrate also raised concerns about whether the Trump F.B.I. “complied with a fundamental requirement of the Fourth Amendment” when it executed the Richman search.

To be clear, search warrants are supposed to be narrow and precise. Law enforcement is only supposed to seize evidence that is potentially relevant to the underlying crimes under investigation. That’s not what happened here.

So that’s a second grave breach of legal standards. But there’s more — it also appears that Halligan misled the grand jury by misstating one of the basic elements of constitutional law.

According to the magistrate, when grand jurors challenged Halligan on the strength of the evidence against Comey, Halligan responded with a “fundamental and highly prejudicial misstatement of the law that suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial.”

In other words, she may have wrongly suggested that it would be up to Comey to disprove the allegations against him, rather than properly placing the burden of proof on the prosecution.

It gets worse. Halligan also seemed to assure the grand jury that “they did not have to rely on the record before them to determine probable cause, but could be assured that the government had more evidence — perhaps better evidence — that would be presented at trial.”

“It is elementary that the grand jury is supposed to consider the evidence in the record and not make assumptions about other evidence the government may or may not have.”

Halligan also appears to have completely botched the process of securing the indictment. She sought a three-count indictment, but the grand jury indicted only on two counts. Yet, through a mysterious series of events, she signed two different indictments — a first indictment that, according to the magistrate, “indicated that the grand jury failed to find probable cause as to any count” and a two-count indictment that didn’t include the rejected third count.

Compounding the problem, at a court hearing on Wednesday, the D.O.J. admitted that it never presented the two-count indictment to the full grand jury. Instead, Halligan seems to have copied the two approved counts into a new document and discussed it with the foreperson without returning to the grand jury.

Wednesday’s hearing also contained another bombshell. As my newsroom colleagues wrote, “one of Ms. Halligan’s subordinates, Tyler Lemons, acknowledged that someone in the deputy attorney general’s office had instructed him not to discuss in open court whether his predecessors had — or had not — written a memo laying out their reasons for not bringing charges, because that was privileged information.”

We do not yet know if Halligan’s procedural irregularities will be fatal to the case, but I do know that if I’d committed that level of malpractice when I was litigating, it would have been instantly fatal to my continued employment.

Just when I thought we were reaching peak legal incompetence, I read a court opinion on Tuesday that made me realize that levels of legal buffoonery exist that I find it hard to imagine.

A three-judge federal panel issued a 2-to-1 opinion striking down the recent Texas gerrymander that was designed to engineer more safe seats for Republican representatives to the House. The majority opinion is by Judge Jeffrey Brown, a Trump appointee.

If you’re a state government, it’s actually hard to lose a gerrymandering case. . . . . Unless you’re the Trump administration. Then, you’ll write a letter to the state of Texas ordering it to change the racial composition of its congressional districts.

That’s exactly what the Department of Justice did. The Trump administration accused Texas of racial gerrymandering when it created the districts, but then tried to argue that the remedy for a racial gerrymander was … another racial gerrymander. As the court wrote, “the remedy for such racial gerrymandering, according to D.O.J., is to change the offending districts’ racial makeup.”

The judge was scathing. “It’s challenging to unpack the D.O.J. letter,” he wrote, “because it contains so many factual, legal, and typographical errors. Indeed, even attorneys employed by the Texas attorney general — who professes to be a political ally of the Trump administration — describe the D.O.J. Letter as ‘legally unsound,’ ‘baseless,’ ‘erroneous,’ ‘ham-fisted,’ and ‘a mess.’ ”

While we don’t know how the courts will ultimately rule (Texas has appealed, and the law still favors . . . rtisan gerrymanders), it is now quite possible that the Republican Party could lose control of the House in part because the Trump administration was too incompetent to rig the districts properly.

Don’t think for a second that I’ve simply cherry-picked two bad moments from what is otherwise a parade of legal excellence. While there are good lawyers on Trump’s legal teams (the solicitor general, D. John Sauer, for example, is a very effective advocate), the Trump team’s lies, distortions and shortcuts are causing problems in case after case after case after case.

But the culture of authoritarianism magnifies this problem. Authoritarians want you to follow their will, not the law; they value personal loyalty over party loyalty; and they tend to erupt over disagreement and dissent, viewing it as a betrayal. They are often quite keen to enrich themselves, and they build loyalty by enriching their allies and punishing their enemies, justice be damned.

Authoritarian incompetence can be a profound mercy. . . . Trumpist incompetence is also a mercy to America. So long as America’s judges retain their independence, they can and will swat aside his worst arguments and block his worst actions. In this way, he is actually making it easier for judges to resist his worst impulses. He undermines his own legal position. He creates the conditions that will make him lose cases that better and more effective leaders could win.

When Trump is angry, he tends to escalate, not retreat (and retreats only as a last resort), and even the most incompetent men can get their way if they’re powerful enough, brutal enough and relentless enough to keep pushing until rival institutions crumble, crack and fall.