Category Archives: Department of Justice

“Already Pardoned by Trump, Jan. 6 Rioters Push for Compensation”

authoritarian threats in US, Department of Justice, election subversion risk

Bizarro World continues:

The rioters who attacked the Capitol on Jan. 6, 2021, secured a shocking double victory this year.

President Trump granted them clemency for their crimes on his first day back in the White House, and in the months that followed, he allowed his Justice Department to purge many of the federal agents and prosecutors who sought to hold them accountable.

But even though the president has given the rioters their freedom and has taken steps toward satisfying their desire for retribution, they are asking for more. In the past several weeks, the rioters and their lawyers have pushed the Trump administration to pay them restitution for what they believe were unfair prosecutions.

On Thursday, one of the lawyers, Mark McCloskey, said during a public meeting on social media that he had recently met with top officials at the Justice Department and pitched them on a plan to create a special panel that would dole out financial damages to the rioters — much like the arrangement of a special master to award money to the victims of the Sept. 11, 2001, terrorist attacks.

The panel, which Mr. McCloskey called a “voluntary nonjudicial resolution committee,” would consider rioters’ cases individually, he said, then assign them sums according to harms they had purportedly suffered at the hands of the federal government.

Mr. McCloskey said that he wanted the panel to be overseen by Jeanine Pirro, who runs the federal prosecutors’ office in Washington that took the lead in filing charges against nearly 1,600 rioters who joined in the Capitol attack.

“The only thing I can do as your lawyer,” he told the rioters who were at the online meeting, “is to turn your losses into dollar bills.”

Neither Ms. Pirro nor a spokesman for the Justice Department responded on Sunday to messages seeking comment on Mr. McCloskey’s plan, and it remains unclear how seriously top administration officials are taking it….

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“Emil Bove Continued to Work at Justice Dept. After Judicial Confirmation”

conflict of interest laws, Department of Justice

NYT:

Emil Bove III, a senior Trump administration official, was narrowly confirmed last month to serve as an appeals court judge, brushing past a bitter confirmation fight despite concerns that he would carry out the president’s directives while on the federal bench.

Still, Mr. Bove has continued to work at the Justice Department, appearing just last week at a department event to celebrate the crime-fighting takeover of the Washington police, according to video of the gathering. It was just one instance of Mr. Bove’s presence at the department, where he has also attended meetings, according to people familiar with the matter who spoke on the condition of anonymity to describe the department’s inner workings.

The code of conduct for federal judges does not appear to apply to Mr. Bove, who court records show has yet to be sworn in. But the fact that he has remained at the Justice Department has raised eyebrows. Some legal experts said that working for the administration after being confirmed could undermine faith in the court system. Others expressed worry that Mr. Bove could expose himself to potential conflicts, advising Justice Department officials on matters that may eventually land before him as a federal judge.

“What the rules protect is public trust and confidence in the independence of the judiciary, which is of great value to the country, whether or not there is anything else that is untoward,” said Stephen Gillers, an expert on legal ethics at New York University’s law school. “Socializing with Trump is fine. Advising Trump is not fine. Putting himself physically in a place where it looks like he is identifying with the president’s political agenda is not fine.”…

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“Justice Dept. Broadens Inquiry Into Key Players in Russia Investigation”

authoritarian threats in US, chicanery, Department of Justice

NYT:

Pursuing a theory promoted by Trump loyalists, the Justice Department is investigating whether F.B.I. officials during and after the Biden administration tried to hide or secretly destroy documents that might cast doubt on the earlier inquiry into Russia’s attempt to tilt the 2016 election in President Trump’s favor, two people with knowledge of the matter said.

The steps taken by the Justice Department are the latest in a series of efforts by Mr. Trump and his allies to impugn the Russia investigation, which the president sees as having been a partisan witch hunt that unfairly dogged him throughout his first term.

The new inquiry seeks to determine if senior F.B.I. officials spent years working to cover up the supposed misdeeds of James B. Comey, the F.B.I. director at the time of the Russia investigation, and John O. Brennan, who was then the C.I.A. director, after the two men left government by squirreling away potentially damaging classified documents.

The disclosures bring into sharper focus how Kash Patel, now the F.B.I. director, is intent on substantiating longstanding claims Mr. Trump has peddled to his base that he was framed by the Obama administration. Under Mr. Patel and his deputy, Dan Bongino, the bureau has moved to oust employees they believe are disloyal or who have worked on investigations into Mr. Trump….

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“Reframing Jan. 6: After the Pardons, the Purge”

authoritarian threats in US, Department of Justice

NYT:

The lawyer took the elevator 32 floors to the U.S. attorney’s office, where for eight years he had worked as a highly regarded prosecutor. He had a container of homemade chocolate chip cookies to share and some thoughts to keep to himself.

“You have to be polite,” the lawyer, Michael Gordon, explained as the elevator rose. “But I don’t want to minimize it, or make it seem like everything’s OK. It’s not.”

Mr. Gordon was heading up on this steaming late July day in Tampa, Fla., to collect his things and say goodbye. Three weeks earlier, and just two days after receiving yet another outstanding performance review, he had been interviewing a witness online when a grim-faced colleague interrupted to hand him a letter. It said he was being “removed from federal service effective immediately” — as in, now.

Although the brief letter, signed by Attorney General Pam Bondi, provided no justification, Mr. Gordon knew the likely reason: Jan. 6, 2021.

He was being fired for successfully prosecuting people who had stormed the United States Capitol that day — assaulting police officers, vandalizing a national landmark and disrupting that sacrosanct moment in a democracy, the transfer of presidential power.

He was being fired for doing his job.

The letter did more than inform Mr. Gordon, a 47-year-old father of two, that he was unemployed. It confirmed for him his view that the Justice Department he had been honored to work for was now helping to whitewash a traumatic event in American history, supporting President Trump’s reframing of its violence as patriotic — and those who had prosecuted rioters in the name of justice as villains, perhaps even traitors….

In the seven months since Mr. Trump, newly returned to the White House, granted clemency to nearly 1,600 people charged in the largest criminal investigation in Justice Department history, his administration has turned the agency upside down….

To date, the Justice Department has fired or demoted more than two dozen prosecutors who were assigned to hold the rioters accountable — roughly a quarter of the complement. Some were junior prosecutors, like Sara Levine, who had secured a guilty plea from a rioter who had grabbed a police officer. Others were veterans, including Greg Rosen, who had led the department’s Jan. 6 task force. Scores more prosecutors, involved in these and other cases, have left, either in fear of where the ax might next fall or out of sheer disgust.

The Justice Department declined to comment for this article, but a White House spokesman, Harrison Fields, described the agency during the Biden administration as “a cabal of anti-Trump sycophants” engaged in a “relentless pursuit to throw the book at President Trump and his allies.” By “uprooting the foot soldiers,” Mr. Fields added, Mr. Trump’s attorney general, Ms. Bondi, “is restoring the integrity of the department.”

And so Mr. Gordon. As the elevator climbed, he braced himself. In an interview the day before, he had talked about what had happened to him and many of his colleagues from the Justice Department’s once-vital and now-defunct Capitol Siege Section. Disbelief colored his every word.

“When you stand up in court and say, ‘Mike Gordon for the United States,’ you don’t say, ‘Mike Gordon for Donald Trump,’” he had said, adding: “I’m standing up there, and I’m speaking for the government. For all the people of the country.”…

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Federal Government Files Supreme Court Brief in NRSC Case Arguing That an Aspect of Federal Campaign Finance Law Violates the First Amendment

campaign finance, Department of Justice, federal election commission, Supreme Court

You can find the government’s brief on the merits here. You can find the brief of the Republican Party making similar arguments here. Because the government has taken the unusual position in attacking the constitutionality of a law passed by Congress, the Court appointed an amicus to argue in favor of the law’s constitutionality. The Democratic Party also intervened to defend the law. Their briefs will be filed later.

The Republican Party brief cites a blog post by Rick Pildes and Bob Bauer, The Supreme Court, the Political Parties, and the SuperPACs, ELECTION LAW BLOG (June 24, 2025).

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DOJ increases pressure to vacuum up voter files

Department of Justice, election administration, voter registration

A month ago, I noted that the DOJ’s Civil Rights Division had sent demands to a bunch of states for copies of the voter files.  These letters were pretty unusual.  I didn’t think DOJ’s ostensible rationale for demanding the files made much sense.  I didn’t think the statutes DOJ cited entitled them to the information they were demanding.  Indeed, I thought federal law precluded DOJ from amassing this information (at least until they do some more homework).

Now the Civil Rights Division is out with a new letter (as before, it’s not clear how many states were recipients, but it seems to be widespread, and perhaps national).  The new letter is from the head of the Civil Rights Division, Assistant AG Harmeet Dhillon (previous iterations were from the acting chief of the Voting Section).  It cites some different statutes.  But it’s not ultimately more persuasive on any of the points above.

It sure looks like the Civil Rights Division is trying to do what the Pence-Kobach Commission failed to do eight years ago: assemble a national voter file.  (Why?  I’m not sure.  And that’s part of the problem.  I’ve got guesses, but federal law says I don’t have to guess.  Before the federal government does something like this, it has to explain itself.)  I thought that was likely illegal then, and I think it’s still likely illegal now.

What follows takes a closer look at these new letters. (It’s a longer analysis, so I’ve tucked the good stuff away under the headers below.)

The ostensible rationale for the files (the NVRA/HAVA).

The NVRA and HAVA each require states to conduct general programs of list maintenance that make reasonable efforts to clean the rolls.  (Here’s the NVRA version, here’s the HAVA version.)  There are more specific provisions in each statute protecting against inaccurate overcleaning: list maintenance comes with a thumb on the scales for not tossing potentially eligible voters if you’re not sure.  But the main point is that both statutes put list maintenance firmly in the hands of the states, and in that endeavor, both require reasonable maintenance procedures, not record-by-record assurance that every ineligible voter is removed.

The new letters offer a very different vision.  “In charging the Attorney General with enforcement of the voter registration list requirements in HAVA and in the NVRA, Congress plainly intended that DOJ be able to conduct an independent review of each state’s list.”  Not just a review of a state’s general program of list maintenance – a review of each state’s list.  Each state’s list.  That staggering assertion of federal intervention comes with no citation to any specific statutory provision, and is not supported by any that I’m aware of (nor any historical DOJ practice, nor any judicial precedent).  But the Civil Rights Division thinks it so important that it copied the sentence twice, verbatim, in a 2½-page letter.  Maybe they think repeating it makes it seem truthier?

If the Civil Rights Division were focused instead on the actual language of the statute, they’d recognize that the responsibility they actually have is reviewing a state’s general program of list maintenance.  That means that it’s entirely legit to ask questions about state procedures for cleaning the rolls, and even to ask for statistics that might touch on those procedures’ efficacy.  (While federal law puts some constraints on collecting personal voter information – see below – it’s entirely agnostic about DOJ questions on procedures and stats.)  But data on particular individuals isn’t particularly helpful in enforcing the NVRA/HAVA provisions the letters cite.  Knowing whether “Justin Levitt” is on the voter rolls in a particular state, and knowing Levitt’s Social Security digits, isn’t especially responsive to whether that state has or doesn’t have the general program required by statute.

The new statutory citation (the Civil Rights Act).

Earlier versions of the gimme-all-your-data letter focused on the NVRA’s provision for public access to the voter rolls, which has been repeatedly construed to allow states to keep sensitive info (like Social Security digits) private even while requiring public disclosure of a lot of other material.  The new letter makes clear that the Civil Rights Division wants all fields – which, again, the letter says twice, because then you know it’s serious.  And the new letter cites a different source of authority: the Civil Rights Act of 1960. But that statute doesn’t do what DOJ wants it to do either.

The Civil Rights Act of 1960 has a provision that requires election officials to keep election-related records for 22 months.  And it has a provision that authorizes the Attorney General to ask to inspect, reproduce, or copy any such record (which is cited in the letter), with a written note explaining the basis and the purpose for the demand (which is not cited in the letter).

There’s admittedly not a ton of caselaw on this provision, and what little there is was developed around Southern jurisdictions at a time when records involved less personal data and more blatant discrimination.  But I’ve always thought of the retention provision like a litigation hold: election officials, don’t throw anything out for 22 months, in case there’s a problem.  If DOJ has reason to believe there was a problem, it may come asking for specific records later.  The litigation hold is for everything, but any particular DOJ request from that universe isn’t automatically coextensive with “everything”: each request has to have not merely a “purpose,” but also – and separately under the statute, lest it be mere surplusage – a “basis.”  That’s a little like probable cause — it’s not terribly demanding (the articulation in an internal justification memo for opening an investigation in the first instance would normally more than suffice), and properly gives a lot of latitude to the government, but “I’m just curious” isn’t enough. 

And this all makes sense, given the recordkeeping environment of 1960.  If the Civil Rights Division had reason to believe that particular eligible voters had been denied the right to vote, it’s clear that this provision authorized the Division to go look up their registration cards and go look at the pollbooks to see if they checked in.  But it’s just as clear to me that this provision didn’t authorize DOJ to collect copies of all of the registration cards from all of the states — “each state’s list” — to go fishing to see what they could find.  Such a demand wouldn’t have the “basis” the statute requires.

The affirmative restriction on the federal government (the Privacy Act).

Everything above is about why the statutes in the letter don’t authorize the Civil Rights Division to get what it wants.  But there’s a different federal statute that I think affirmatively prevents the DOJ from getting what it wants, and the statutes above have to be read in light of that statute too.

That statute is the Privacy Act of 1974.  It says that before the federal government collects records on individuals, the government has to facilitate a public conversation – a Federal Register notice and notification to congressional committees — about what information it plans to collect, why it needs the information, who has access, and the like.  That’s 5 U.S.C. § 552a(e)(4) and 552a(r).  Federal officials who collect info on Americans without this public notice are committing a federal crime.  State officials who intend to help the Civil Rights Division blow past this notice requirement may be abetting that crime.

The new letters mention a totally different part of the Privacy Act, and otherwise make some noises about privacy, but those are mostly non sequiturs.  I still haven’t seen any indication that the Civil Rights Division has done the homework the Privacy Act requires to collect the voter files.  They’ve provided notices on some information the Division maintains in the course of regular enforcement work: enforcing civil rights means you’ll collect some info about victims and targets and witnesses.  But none of those notices fairly flag that the Division plans to accumulate a national voter file, with the personal information (and First Amendment activity) of Americans who aren’t any of the above.

The Privacy Act isn’t just a process barrier of its own.  It also provides important context for understanding the litigation-hold provisions of the Civil Rights Act of 1960.  Given increasing congressional skepticism of federal government acquisition of Americans’ personal data in 1974, it would be deeply weird (not to mention ahistorical) to read the 1960 statute to override the careful constraints in the Privacy Act, giving the Civil Rights Division the authority to vacuum up information on more than 155 million voters, without  any individualized “basis” and in service of an invented federal power to double-check every state’s list.  Instead, reading the two statutes together helps confirm that the Civil Rights Act authority is as we thought it was: authorizing the AG to get specific information where there’s reason to believe there was a particularized problem in an election within the last 22 months.

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“Voting Rights and Private Rights of Action: An Empirical Study of Litigation Under Section 2 of the Voting Rights Act, 1982-2024”

Department of Justice, Supreme Court, Voting Rights Act

Chris Seaman has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:

The Voting Rights Act is perhaps the most effective civil rights law ever enacted, bringing millions of Americans who have historically been discriminated against into the democratic polity and facilitating the election of candidates of their choice.  But for more than a decade, the rights guaranteed by this landmark statute have been undermined by the courts.  Recently, the Eighth Circuit has eroded what remains of the Act by holding that private plaintiffs cannot sue to enforce the protections of Section 2 in federal court. This holding—which is in conflict with several other circuits, as well as prior Supreme Court decisions regarding implied rights of action to enforce other parts of the Voting Rights Act—seems likely to be reviewed by the Court.

To assess the potential impact of a possible nationwide ban on private plaintiffs bringing Section 2 claims, this Article reports findings from a comprehensive empirical study of over 1500 challenges brought in federal court between 1982 and 2024.  It finds that over 90% of Section 2 challenges were brought by private plaintiffs rather than the Attorney General. Moreover, private plaintiffs were highly successful in these challenges, winning nearly two-thirds of the time.  The Article then explains why, if Section 2 lacks a private cause of action, the federal government is ill-equipped as both a practical and a political matter to fill this gap in enforcement. 

Looking forward to reading this!

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“Former Trump prosecutor Jack Smith faces investigation by Office of Special Counsel”

authoritarian threats in US, chicanery, Department of Justice

WaPo:

The U.S. Office of special counsel said Saturday it is investigating Jack Smith, the former Justice Department official who oversaw two federal prosecutions of Donald Trump, for potentially violating the law barring federal officials from political activity.

The independent agencytasked with overseeing investigations into partisan influence and coercion confirmed its investigation of Smith over potential Hatch Act violations.

The Hatch Act prohibits most federal employees from using their official authority to influence elections or engage in overt political activity on the job. If the office concludes a federal employee has violated the law, it refers the case to the president. Discipline can range from a reprimand to a removal from federal service. Criminal penalties are rare.

Smith, who resigned from the Justice Department in the days before Trump’s inauguration this year, became the public face of the department’s efforts to hold Trump accountable for two sets of alleged crimes. Trump was accused of trying to block Joe Biden’s 2020 election victory, and, after leaving the White House upon completion of his first term, mishandling highly classified documents and obstructing government efforts to retrieve them. Neither case went to trial.

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“DOJ Is Said to Plan to Contact All 50 States on Voting Systems”

chicanery, Department of Justice, election administration

Democracy Docket:

The U.S. Department of Justice (DOJ) has said it intends to contact all 50 states about their compliance with federal voting law, a national association of state election officials told Democracy Docket. 

“As states recently began to receive letters on the National Voter Registration Act (NVRA) and Help America Vote Act (HAVA) from the U.S. Department of Justice, NASS staff reached out to hopefully provide members with additional information and context,” Maria Benson, a spokesperson for the National Association of Secretaries of State (NASS) said in a statement. “DOJ staff told NASS staff that all states would be contacted eventually on NVRA and HAVA matters. We passed along this information to members.”

“NASS staff has also asked DOJ to join a future NASS Elections Committee virtual meeting to address questions on these letters,” Benson added.

In recent weeks, letters sent by DOJ’s Civil Rights division to numerous states of all political stripes have asked for sensitive voter roll data, which DOJ has said is needed to ensure compliance with the NVRA and HAVA. The inquiries appear intended to gather information that could boost the Trump administration’s hunt for illegal voting.

“Most of the letters are very vague about why the DOJ is asking for this data,” Justin Levitt, a constitutional law scholar and a former deputy assistant attorney general in the DOJ’s Civil Rights division, as well as a former voting adviser to former President Joe Biden, told Democracy Docket. “Most of these letters cite generally HAVA and the NVRA. That’s not good enough. HAVA and the NVRA have very particular requirements for state and local jurisdictions.”…

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“Justice department asked California to give info on non-citizens on voter rolls”

chicanery, Department of Justice, election administration

The Guardian:

The Department of Justice has asked several large California counties to provide detailed personal information of non-citizens who got on to the state voter rolls, an unusual request that comes as the Trump administration has asked about a dozen states to provide wide swaths of information about voters and election practices.

The justice department’s voting section sent identical letters to local election officials in Los Angeles, San Francisco and San Diego on 9 July. The request asks the officials to provide the total number of non-citizens who had their voter registrations cancelled since 2020 as well as a copy of their voter registration records, voting history, date of birth, driver’s license numbers, and the last four digits of a social security number. The department sent a similar request to Orange county last month and then sued the county after officials redacted some information….

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“Minnesota rejects DOJ demand for state’s voter rolls”

Department of Justice, voter registration

Minnesota Star Tribune:

The Justice Department asked Minnesota election officials in June for voter rolls and other information to show proof of compliance with federal election law. Similar requests were made to other states, including Colorado, Wisconsin and Pennsylvania.

In a letter sent Friday, Justin Erickson, general counsel for the Secretary of State’s Office, said the Justice Department did not “identify any legal basis” for its request, nor did it explain how the data would be “used, stored and secured.”

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“Fired prosecutor who handled Capitol riot cases sues government”

authoritarian threats in US, Department of Justice, election subversion risk

Washington Post:

A prosecutor who handled some of the most high-profile cases against Jan. 6, 2021 rioters is suing the government over his dismissal last month, arguing that the decision was politically motivated.

Former assistant U.S. attorney Michael Gordon is one of dozens of federal prosecutors the Justice Department has fired since President Donald Trump returned to office, despite such measures generally only being used in cases of misconduct, as The Washington Post reported last month.

On Thursday, Gordon and two other former DOJ employees — Patricia A. Hartman, who was a public affairs specialist in the U.S. attorney’s office for the District of Columbia, and Joseph W. Tirrell, who led the department’s ethics office — filed a lawsuit Thursday over their terminations, which they said disregarded “long-standing statutory and regulatory protections that govern how and when members of the civil service can be terminated, and the limits thereof.”

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Toobin: “The Line Trump Crossed by Accusing Obama of Treason”

Department of Justice, Supreme Court

Jeffrey Toobin in NYT on President Trump’s assertion that former President Obama engaged in “treason” in connection with the investigation into Russian efforts to influence the 2016 election:

President Trump’s history of intemperate remarks has earned him a perverse kind of immunity; the more outrageous his statement, the faster it is often dismissed. But Mr. Trump doesn’t deserve this bloviator’s privilege. He’s not just the president, but, more to the point, he’s the overseer of an unusually compliant Justice Department, and his offhand condemnation of his predecessor is as significant as it is chilling. . . .

The absurdity of this investigation is underlined, too, by the fact that Mr. Obama is almost certainly immune from prosecution — thanks to Mr. Trump and the Supreme Court. In its decision last year in Trump v. United States, the court held that there was a presumption that former presidents could not be prosecuted for any “official” conduct during their time in office. The preparation and dissemination of intelligence findings are certainly official functions of the presidency, and accordingly, they would be off limits as the bases for any criminal charges.

But pointing this out seems almost unfair to Mr. Obama; it suggests that he would escape prosecution only because of the lamentable technicality established by the Supreme Court in the Trump case. The more important reason is simpler: Mr. Obama committed no crime.

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“Michigan becomes latest target of Justice Department inquiry on voter roll maintenance”

Department of Justice, voter registration

Votebeat:

The U.S. Justice Department is asking Michigan for a copy of its voter rolls and information about how the state maintains them, as well as a series of questions about its high levels of voter registration.

In its letter to Secretary of State Jocelyn Benson, dated July 21 and obtained by Votebeat, the Justice Department also said it has received a complaint about the state’s compliance with a provision in federal law requiring all voters to be assigned unique identifiers.

It is the latest in a series of letters the Justice Department has sent to states about their management of voter rolls, following directives in President Donald Trump’s March executive order on elections.

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