Not Just for Alien Enemies Anymore
Over the last few weeks, the Trump Administration has announced an array of domestic criminal investigations. How many will lead to prosecutions?
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Justice in Brief
In the Central District of California, a Russian citizen was indicted for controlling the Qakbot ransomware product using the wire fraud statute. The case has already resulted in the seizure of $24 million worth of cryptocurrency.
In the Northern District of Georgia, a man was charged with bank fraud related to fraudulent loans he received through the COVID Payroll Protection Plan Program. He received approximately $700,000 in loans.
In the southwestern districts, the government charged more than 1100 people with immigration-related offenses last week. Nearly all of these are illegal re-entry cases.
Updates…
In the Southern District of New York, the RICO case against Sean “Diddy” Combs continues as the government is still presenting its case-in-chief.
After withdrawing his name as US Attorney for DC, President Trump named Ed Martin the lead Pardon Attorney for the Justice Department and serve as the head of its Weaponization Task Force. Martin said, “There are some really bad actors, some people that did some really bad things to the American people. And if they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, they should be people that are ashamed. And that’s a fact. That’s the way things work. And so that’s, that’s how I believe the job operates.”
Justice Department official and former Donald Trump defense attorney Emil Bove has been discussed for a seat on the Third Circuit Court of Appeals.
Judge Hannah Dugan was indicted in Wisconsin for her alleged efforts to obstruct ICE agents attempting to detain a person ordered deported.
Allegations are not evidence
At the end of every Justice Department press release involving criminal matters reads the following: An indictment is merely an allegation. All defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law. Rules of professional conduct require these statements so that people do not mistake the allegations made in the legal documents for evidence that the defendant is guilty of any crime. In other words, the government believes this person committed this crime but until a court finds, beyond a reasonable doubt, that the defendant is guilty, the defendant is considered innocent. Of course, our minds don’t work this way. We read these facts and presume the defendant is guilty. We immediately begin to think about the person differently. If that person is a public figure, it might significantly harm the person’s reputation.
Over the last few weeks, the Justice Department and President Trump have announced investigations and potential investigations against numerous public figures. These announcements cover an array of offenses, some more significant than others. Some more credible than others. What ties these cases together, beyond that they are public figures, is that they are people who oppose President Trump.
Newark Mayor Ras Baraka
On May 9th, Newark Mayor Ras Baraka arrived at an Immigration and Customs Enforcement facility in Newark, New Jersey, with members of a Congressional delegation. Baraka, along with several others, is running for New Jersey governor and has expressed opposition to President Trump’s immigration policy implementation. Once inside the facility, they encountered several ICE agents who instructed Baraka to leave. A scuffle ensued and the mayor eventually left the facility. After leaving, multiple ICE agents located Baraka and arrested him. The US Attorney’s office for the District of New Jersey charged Baraka with misdemeanor trespass. At the time, US Attorney Alina Habba stated that Baraka “has willingly chosen to disregard the law. That will not stand in this state. He has been taken into custody.” She added, in all capitals, that no one is above the law. Less than two weeks later, however, she dismissed the case because security at the facility had permitted Baraka to enter the facility.
NJ Congresswoman LaMonica McIver
At the same time US Attorney Habba announced the dismissal of the case against Baraka, she announced criminal charges against LaMonica McIver, a Democratic Representative from New Jersey. The complaint indicates that McIver blocked those attempting to arrest Baraka from doing so, including by placing her arms around Baraka. She also used her forearm to block the agents from getting closer to Baraka. The conduct, according to Habba, violated 18 USC 111 that prohibits assaulting certain government employees. That requires the government to prove Representative McIver “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties.” The key to the case hinges on the “forcibly” aspect. Courts have said that passive resistance, without more, does not satisfy the statute’s requirements. Based on this, the government will have a difficult time establishing Representative McIver’s conduct, by wrapping her arms around Baraka, constituted “forcibly.” However, the use of her forearm to push back against the ICE officer may qualify.
Andrew Cuomo
It also emerged this week that the Justice Department is investigating former New York Governor Andrew Cuomo. The former governor is considered the front runner for New York’s mayoral election. The same election that features Mayor Eric Adams, who had his criminal charges dropped by the Justice Department earlier this year. Cuomo resigned as governor in 2021 after allegation emerged that he sexually harassed multiple women. That is not the conduct under investigation, however. Instead, according to government sources, Cuomo is under investigation for statements he made to Congress about his handling of the Coronavirus pandemic. The matter had been referred to the Justice Department from Congress last year.
James Comey
Concerns also emerged recently about former FBI Director, Deputy Attorney General, and assistant US Attorney James Comey. While walking on the beach, Comey came across an unusual shell pattern. He photographed it and posted it on his Instagram page. The shells formed “8647”. Comey said that he took it to be a political protest and a statement to remove President Trump from office. Others saw a darker message and that it was a threat to assassinate the President. Comey is one of President Trump’s long-time targets. As FBI Director, Comey refused to ignore alleged criminal conduct engaged in by President Trump’s first choice for National Security Advisor. Comey also did not promise the President that he would be loyal to the President. Soon after, President Trump fired Comey. Since that time, Comey has been a vocal Trump critic. Those in the government who support charging Comey refer to 18 USC 871. This requires the person “knowingly and willfully” makes a threat to the life or to inflict bodily harm to the president. Any case would hinge on Comey’s knowledge about the meaning behind the numbers. Formal definitions state that the number “86” means to remove or deny service. Thus, it is unlikely the government could prove Comey knew it had a more specific meaning.
Jill Biden
One of the Justice Department’s leaders in enforcing Civil Rights, Leo Terrell, chimed in with his thoughts on former President Job Biden’s cancer diagnosis. In a post on X, he thought that Jill Biden might be guilty of elder abuse for not getting him help and allowing his to run for a second term as president. While this was not likely a serious post, especially considering the federal government would not have jurisdiction, it is not something a Justice Department employee should allege. It detracts from the seriousness of the Department’s work.
Bruce Springsteen
Recently Bruce Springsteen began a concern tour in the United Kingdom. At the start of one concert he labeled the Trump Administration as “corrupt, incompetent, and treasonous.” This touched off a brief social media war between Springsteen and the President. It concluded with President stating that he intends to call for an investigation into how much Springsteen was paid to endorse the President’s 2024 opponent Kamala Harris. The President also referenced several other performers who endorsed Harris, including Beyonce, Oprah and Bono. He alleged that all were paid by Harris “under the guise of paying for entertainment.” Proving this will be difficult, of course. Campaign finance disclosures reveal the amounts paid to each of them. The amounts correspond to expenses for the performances. Somehow, the government would need to prove otherwise. This is unlikely but would not stop a criminal investigation from proceeding.
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None of these instances, taken alone, present much of a problem, at least in terms of criminal liability. There is little likelihood that any will result in a conviction. Baraka’s case has already been dismissed with prejudice. McIver’s conduct is likely covered by the Constitution’s Speech or Debate clause. Article I, Section 6 of the Constitution protects member of Congress from being questioned about anything they do within their legislative roles in any other place. As the visit was about oversight of the federal government’s immigration detention facility, it is likely this will fall under that umbrella. There is likely little ongoing in the Cuomo investigation. The government can legitimately say the matter is under investigation based on the mere fact that a referral has been made to them from Congress. This does not mean, however, that anything is happening. On the Comey matter, the Secret Service will look into the post and speak with Comey. Nothing will come of it due to proof problems. The Jill Biden comments were inappropriate and outside the Justice Department’s jurisdiction. That leaves the Springsteen investigation. Once again, there are significant proof problems.
If none of these will result in criminal charges then why are these incidents important? During the campaign, whether serious or not, Donald Trump insisted he would prosecute his enemies. He said he would have loyal people at the Justice Department who would do this. Thus far, most of their high-profile work has been devoted to advancing the Administration’s conduct, namely reducing the size of the federal government and dealing with immigration issues. The closest the Department has come to using its discretionary authority in a politicized manner has been to dismiss the case against New York Mayor Eric Adams. These incidents, however, portend a shift. Ed Martin, most recently the interim US Attorney for the District of Columbia, has assumed the lead role in the Justice Department’s Weaponization Task Force. Alina Habba, just before assuming her role as interim US Attorney for New Jersey, indicated that her goal was to turn New Jersey into a red state. Both seem set on using their discretionary authority to pursue President Trump’s enemies. While the threat of investigation is damaging, it does not force the person to appear in court and present a defense. Initiating criminal charges does. It remains to be seen whether the Justice Department will use its discretionary authority to prosecute political enemies. The case against McIver is close but is at least supported with probable cause. Will the Justice Department go further? That remains to be seen.
The other important aspect to these incidents is that the Justice Department is harming its reputation with a large segment of the population and, more importantly, with the courts. Courts expect federal prosecutors to present the evidence and let the evidence speak for itself. While the Department might have enforcement preferences and priorities, it also has a strong reputation for not bringing spurious or insufficient cases. Making these statements and conducting these investigations undermines that reputation. This will, in the long run, hurt the Department’s efforts to make American safe again.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!