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.
The Richman search warrant dates back to Trump’s first term. The F.B.I. executed a search on an entirely unrelated matter. It was investigating whether Comey had stolen government property and improperly transmitted national defense information. It dropped the investigation, but it retained Richman’s documents. This year, it went back to look at the documents again, this time to investigate a separate crime.
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. As Andrew McCarthy, a former federal prosecutor, wrote in National Review, “The search warrants imposed temporal limits on which of Richman’s communications the F.B.I. was permitted to search.”
“According to Fitzpatrick,” McCarthy continued, “those limits were ignored: The government grabbed digital files indiscriminately.”
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.”
Again, this is not the standard. As McCarthy wrote, “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.
As the magistrate wrote, “If this procedure did not take place, then the court is in uncharted legal territory in that the indictment returned in open court was not the same charging document presented to and deliberated upon by 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.”
Lemons then admitted that this memo exists.
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. The Supreme Court has made it clear that it will not intervene to block partisan gerrymanders. If you want to draw crazy maps to maximize the number of Republican or Democratic voters in a given district, have at it.
It is still possible (for now) to challenge a gerrymander on racial grounds, but those are difficult cases to win — especially when race and partisanship overlap. In the Deep South, to take the most salient example, white voters are overwhelmingly Republican and Black voters are overwhelmingly Democratic. This makes it difficult to discern where partisanship ends and explicit racial gerrymandering begins.
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 partisan 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.
Even normal levels of partisanship can breed incompetence. Partisans tend to limit jobs for the best available Republican or the best available Democrat — a limitation that can remove from consideration countless qualified candidates. 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.
Competent and conscientious people tend to often shun such an environment, but corrupt opportunists love it. They wallow in it. It is, after, all the best place for them to thrive.
Authoritarian incompetence can be a profound mercy. If the Russian Army had been as professional as the American military, it would have almost certainly occupied Kyiv long ago. On paper, the Russian Army vastly overmatched the Ukrainian military, but decades of brutality and graft had resulted in troops being poorly trained, vehicles being poorly maintained and tactics that were suicidally stupid.
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.
While ineptitude can hamper Trump, it won’t stop him. There are areas — such as his conduct of foreign policy — where Trump and his sycophants reign supreme.
There’s an additional danger, especially over the long term. Institutions that authoritarians can’t master, they often seek to destroy.
And so it is with the judiciary. Stephen Miller, perhaps Trump’s most influential adviser, has accused judges of participating in a “legal insurrection” for blocking Trump’s unlawful orders, and many of Trump’s allies are calling for him to defy the courts.
Trump sued all 15 Maryland Federal District Court judges after the chief judge of the United States District Court for the District of Maryland issued a two-day hold on deportations for immigrants who had filed a writ of habeas corpus.
Normally, an administration appeals a ruling it believes to be erroneous. Here the administration sued the judges directly.
It was a ridiculous lawsuit, and it was promptly tossed out by Judge Thomas Cullen, another Trump appointee. But the battle is not won, and the judiciary is not safe. This month, for example, Brandon Gill, a Republican representative from Texas, introduced articles of impeachment against Judge James Boasberg for the second time, claiming that by approving subpoenas of Republican legislators as part of former Special Counsel Jack Smith’s investigation into Trump’s effort to subvert the 2020 election, Boasberg committed an impeachable offense.
Nor can we forget that many federal judges are facing threats to their lives simply for doing their jobs.
Trump remains on the offensive in American politics. Every day his administration batters the judiciary. Every day, his MAGA movement attacks and terrifies its opponents. Every day, he’s inching forward. His minions often don’t fight with skill, but they fight, and they fight hard.
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.
Some other things I did
On Sunday, I wrote about the Catholic Church’s response to Trump’s immigration crackdown. A clear Christian resistance to MAGA has emerged, and it’s emerging in the right way:
Partisanship is poisonous to the church. Neither party’s political platform truly embodies the teachings of the New Testament. Each party has its moral strengths and weaknesses, which is why you can find Christians and people of every faith and no faith on both sides of the political aisle.
But when partisanship becomes part of your identity — much less part of your faith — it has a pernicious effect: It causes you to highlight the deficiencies of the other side while tempting you to rationalize or minimize the injustices on your own. Partisanship makes hypocrites of us all. I know it made a hypocrite of me on my worst partisan days.
The approach that Pope Leo takes, by contrast, puts virtue outside and above politics. His declarations are the living embodiment of Martin Luther King Jr.’s admonition that the church “is not to be the master or the servant of the state, but the conscience of the state.”
On Saturday, my round-table discussion with my colleagues Jamelle Bouie and Michelle Cottle focused on the Epstein files. Why is this scandal sticking to Trump when so many others haven’t? The answer is complicated, but part of the reason is that Trump is behaving differently. He’s acting like he’s got something to hide:
And then also there’s this other thing, that this is about the only scandal in the Trump era where he’s engaging in that classic political dissembling that makes voters’ antennae go up. Like, is there something real here? Because the other way that he’s dealt with scandal in the past in his administration is just to do it, right out in the public.
I wrote about this. He pardons a guy whose company helped pump up the value of Trump crypto, and he just does it. Or he just releases the memo about trying to extort a political investigation out of Zelensky. He just puts it all out there, and it really confuses voters because they’re not used to politicians just dumping their scandal out on the public and just saying: Here it is. But this is classic political scandal conduct — hiding the ball, working very hard to keep things concealed. And all of that broadcasts to the public that there’s something bad here. And so I think it’d be malpractice for the Democrats not to lean into that in the short term.
Thank you for being a subscriber
If you’re enjoying what you’re reading, please consider recommending it to others. They can sign up here. Browse all of our subscriber-only newsletters here.
Have feedback? Send me a note at [email protected].
You can also follow me on Threads (@davidfrenchjag).
The post The Comey Case Is a Comedy of Errors appeared first on New York Times.
