Rxan Smith writes on his blog about America’s broken prison system. We spend more on prisons than any other nation and have the highest recidivism. Our “get-tough” approach to crime is a failure, and a very costly one.
Here’s an uncomfortable math problem nobody in Washington wants to do out loud:
America spends $182 billion per year locking people up.
That’s billion. With a B. Every year.
Not to rehabilitate. Not to reduce crime. Not to make you safer.
Just to warehouse human beings in a system so thoroughly designed to fail that two out of every three people released from prison are arrested again within three years.
Our country’s criminal justice system does not offer criminal justice, and it’s barely worthy of being called a system at all.
It’s a revolving door — and somebody built that door on purpose, installed it at taxpayer expense, and charges you rent every time it spins.
Uncomfortable Truth About “Tough on Crime”
For fifty years, American politicians — left, right, and everything in between — have campaigned on being “tough on crime.”
You know what “tough on crime” actually produced?
*The largest incarcerated population on earth: over 2 million people
*A recidivism rate of 67% within 3 years of release
*A $182 billion annual price tag that grows every year
*Communities so stripped of working-age adults that poverty compounds across generations
“Tough on crime” didn’t reduce crime. It industrialized it.
It turned human failure into a growth industry — complete with lobbyists, quarterly earnings calls, and a political class that discovered you can always raise money by scaring people.
Meanwhile, Norway — with its functional approach — runs a prison system with a 20% recidivism rate.
Ours is 67%.
Norway’s isn’t radical. It’s just effective. The difference? They decided prisons should actually produce people who don’t go back.
The Numbers Behind the Nightmare
Let’s get specific, because the specifics are infuriating:
The Scale
*United States incarcerates 655 people per 100,000 — highest rate on earth
*Rwanda is second. We beat Rwanda. Let that land.
*43% of inmates are Black Americans, who represent 13% of the population
*Average cost per inmate: $39,000 per year — more than a year at many state universities
The Recidivism Machine
*67% of released prisoners are rearrested within 3 years
*83% are rearrested within 9 years
*People released with less than $50 in their pocket, a bus ticket, and a criminal record that disqualifies them from housing, jobs, and student loans
*Then we act surprised when they come back
The Private Prison Problem
*Private prison companies manage roughly 8% of inmates but spend millions lobbying for longer sentences, mandatory minimums, and policies that ensure full occupancy
*CoreCivic and GEO Group spent over $25 million on lobbying and political donations between 2000-2020
*They are literally paid to make sure prisons stay full…
What We Got Instead of Rehabilitation
The American philosophy of incarceration rests on three pillars, all of which are broken:
Deterrence: The idea that long sentences scare people away from crime.
Reality: Most crimes are not committed by people weighing a rational cost-benefit analysis. They’re committed by desperate, mentally ill, or addicted people who aren’t doing the math. The death penalty states don’t have lower murder rates. The math doesn’t work.
Incapacitation: Lock them up so they can’t hurt anyone.
Reality: The average sentence ends. People come out. If they come out with zero support, no job prospects, and the same addiction or mental illness that got them there — you haven’t solved the problem, you’ve aged it.
Punishment: They did something wrong; they should suffer.
Reality: Fine. But suffering without any change in behavior just produces someone who suffered. If we want public safety, we need to care about what happens after the punishment ends.
We skipped the part where any of this was supposed to work.
What Rehabilitation Actually Looks Like
Other countries figured this out. We just refused to copy the homework.
The Norwegian Model (No, It’s Not Soft. It’s Smart.)
Halden Prison in Norway has a music studio, a jogging trail, a kitchen where inmates learn to cook, and individual cells with windows. Guards eat lunch with inmates. The focus is on preparing people to live normal lives.
Result: 20% recidivism rate.
The cynical American response: “That’s not punishment.”
The functional response: “Their prisons actually work.”
Robert Reich has selected the Supreme Court Justice whom he believes is the worst in modern history. The two likeliest nominees are clearly Samuel Alito, who wrote the decision that reversed Roe v. Wade and that is responsible for the deaths of many women who were unjustly denied medical care because of Justice Alito.
But no, he chooses Justice Clarence Thomas. In this post, he explains why.
Friends,
I’ve long assumed that Samuel Alito was the worst.
Alito — who authored the majority opinion in Dobbs v. Jackson Women’s Health Organization (2022), the case that ended constitutional abortion rights by merely asserting that the high court’s prior opinion in Roe v. Wade (1973) was wrongly decided; who accepted a 2008 luxury fishing trip to Alaska, including private jet travel, from hedge fund billionaire and GOP donor Paul Singer yet failed to disclose it on Alito’s financial forms and didn’t even recuse himself from decisions involving Singer’s subsequent business before the Supreme Court; who hoisted an inverted American flag outside his Virginia home shortly after the January 6 Capitol riot, a symbol of support for Trump’s false claims of a stolen 2020 election — has the moral and intellectual stature of a poisonous toad.
But I’ve come to revise my view of the court’s worst Justice.
Clarence Thomas is 77 years old. He has now served on the Supreme Court for over 34 years, making him the longest-serving member of the Court. He is a bitter, angry, severe hard-right, intellectually dishonest, ideologue. After reading his latest thoughts on America, I’ve concluded Thomas is even worse than Alito.
Last Wednesday, Thomas gave a rare public address at the University of Texas in Austin that began as a banal tribute to the Declaration of Independence before degenerating into a misleading screed against progressivism.
“At the beginning of the twentieth century, a new set of first principles of government was introduced into the American mainstream,” Thomas intoned. “The proponents of this new set of first principles, most prominently among them the twenty-eighth president, Woodrow Wilson, called it progressivism.”
Thomas went on to blame progressives for the worst crimes of the 20th century, insisting that “Stalin, Hitler, Mussolini, and Mao” were all “intertwined with the rise of progressivism,” as was “racial segregation,” “eugenics,” and other evils.
This is pure rubbish.
In reality, America’s Progressive era emerged at the start of the 20th century from the corruption and excesses of America’s first Gilded Age (we’re now in the second, if you hadn’t noticed) — its record inequalities of income and wealth, its “robber barons” who monopolized industries and handed out sacks of money to pliant legislators, it’s dangerous factories and unsafe working conditions, its violent attacks on workers who tried to form unions, its corporate control over all facets of government, its widespread poverty and disease, and its corrupt party machines.
In many ways, the Progressive Era — whose most prominent leader was Republican president Theodore Roosevelt, not Woodrow Wilson, by the way — saved capitalism from its own excesses by instituting a progressive income tax, an estate tax, pure food and drug laws, and America’s first laws against corporate influence in politics.
Then, under Teddy Roosevelt’s fifth cousin (Franklin D.), came Social Security, the 40-hour workweek (with time-and-a-half for overtime), the right to form unions, and laws and regulations that limited Wall Street’s ability to gamble with other people’s money.
Clarence Thomas got it exactly backwards. Had we not had the Progressive Era and its reforms extending through the 1930s, America might well have succumbed to fascism — as did Germany under Hitler, and Italy under Mussolini, or to communist fascism, as did Russia under Stalin. Progressive and New Deal reforms acted as bulwarks against the rise of fascism in America.
In fact, it’s been the demise of such reforms since Ronald Reagan that have opened the way to Trumpian neo-fascism.
Over a third of American workers in the private sector were unionized in the 1950s, giving them bargaining leverage to get higher wages and better working conditions. Now, fewer than 6 percent are unionized, which has contributed to the flattening of wages, a contracting middle class, inequalities of income and wealth rivaling the first Gilded Age, and an angry and suspicious working class that’s become easy prey for demagogues.
Wall Street has been deregulated — allowing it to go on gambling sprees such as the one that produced the financial crisis of 2008, which claimed millions of working peoples’ homes, savings, and jobs.
America’s social safety nets have become so frayed that almost a fifth of the nation’s children are now in poverty. Yet Reagan, George W. Bush, and Trump have slashed taxes on the rich and on big corporations and have allowed giant corporations to merge into giant monopolies rivaling the trusts of the first Gilded Age. And Trump has ushered in an era of corruption the likes of which America hasn’t seen since that earlier disgraceful era.
Thomas claims that “The century of progressivism did not go well.” Baloney. It helped America create the largest middle class the world had ever seen, while also extending prosperity to millions of Black and brown people.
The tragedy is that America turned its back on progressivism and on social progress, in part because of the Supreme Court and Justice Clarence Thomas.
Flashback: I was in law school in 1973 when the Supreme Court decided Roe, protecting a pregnant person’s right to privacy under the 14th amendment to the Constitution.
Clarence Thomas was in my law school class at the time, as was Hillary Rodham (later Hillary Clinton) and Bill Clinton.
The professors used the “Socratic method” – asking hard questions about the cases they were discussing and waiting for students to raise their hands in response, and then criticizing the responses. It was a hair-raising but effective way to learn the law.
One of the principles guiding those discussions is called stare decisis — Latin for “to stand by things decided.” It’s the doctrine of judicial precedent. If a court has already ruled on an issue (say, on reproductive rights), future courts should decide similar cases the same way. Supreme Courts can change their minds and rule differently than they did before, but they need good reasons to do so, and it helps if their opinion is unanimous or nearly so. Otherwise, their rulings appear (and are) arbitrary — even, shall we say? — partisan.
In those classroom discussions almost fifty years ago, Hillary’s hand was always first in the air. When she was called upon, she gave perfect answers – whole paragraphs, precisely phrased. She distinguished one case from another, using precedents and stare decisis to guide her thinking. I was awed.
My hand was in the air about half the time, and when called on, my answers were meh.
Clarence’s hand was never in the air. I don’t recall him saying anything, ever.
Bill was never in class.
Only one of us now sits on the Supreme Court. And he has shown no respect for stare decisis.
Nor has he respected judicial ethics.
A federal law — 28 U.S. Code § 455 — requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
In the aftermath of the 2020 election, Thomas’s wife, Ginni, actively strategized with White House chief of staff Mark Meadows on overturning the election results. Between Election Day 2020 and the days following the January 6th attack on the Capitol, she exchanged 29 text messages with Meadows, in which she spread false theories about the election, urged Meadows to overturn the election results, and called for specific actions from the White House to help overturn the election. She also served as one of nine board members of a group that helped lead the “Stop the Steal” movement and called for the punishment of House Republicans who participated in the U.S. House Select Committee investigating the January 6th attack.
Yet Clarence Thomas has repeatedly participated in cases that have come to the high court directly or indirectly involving the 2020 election results, refusing to disqualify himself.
In addition, he failed to disclose his wife’s income from her work at the Heritage Foundation, in violation of the Ethics in Government Act.
Finally, there’s his speech last week in Austin. How can Americans be expected to believe in the impartiality of the Supreme Court in general and Clarence Thomas in particular when he condemns an entire philosophy of government — progressivism — and all the people who continue to call themselves progressives, in effect labeling them neo-fascists?
At the start of his speech last week in Austin, Clarence Thomas noted that “My wife Virginia and I have many wonderful friends and acquaintances here, and it is so special to have our dear friends Harlan and Kathy Crow join us today.”
He was, of course, referring to the Republican mega-donor who has spent the last twenty years lavishing Thomas with personal gifts, luxury yacht trips, fancy vacations, and funding for Ginni Thomas’s political organization.
Small wonder that Clarence Thomas prefers the Gilded Age over the Progressive Era. He’s the living embodiment of The Gilded Age’s public-be-damned excesses.
Hence, he’s my nominee for the worst justice in modern Supreme Court history.
Judge J. Michael Luttig has always been considered a conservative Republican. He worked in the Reagan administration and clerked for Justice Antonin Scalia and Chief Justice Warren Burger. In 1991, he was appointed to the Fourth District Court of Appeals by President George H.W. Bush. Luttig resigned his judgeship in 2006 to work as general counsel for Boeing.
Although a stalwart conservative, Luttig was appalled by Trump’s attempt to overturn the election he lost in 2020. He testified to the House January 6 committee that Trump and his allies were “a clear and present danger to American democracy.” In 2023, he co-wrote an article with liberal legal scholar Laurence Tribe arguing that Trump should be barred from running for the Presidency because of his role in the 2021 insurrection (Section 3 of the 14th Amendment).
When Trump was leading the field in 2024, Luttig predicted that Trump’s election would be “catastrophic” for the United States, and he subsequently endorsed Kamala Harris.
Luttig has continued to put the Constitution and the rule of law over partisan politics.
Judge Luttig wrote this article on his Substack blog. I reposted about half of it. To read it in full, open the link or subscribe.
Judge Luttig wrote:
On January 11, 2026, with America and the world anxiously watching — and hoping — Federal Reserve Board Chairman Jerome “Jay” Powell fearlessly stood up to the President of the United States, and his truth put the lie to Donald Trump.
For their honorable and courageous stands against the President of the United States, Chairman Powell and Judge Boasberg may have earned Donald Trump’s eternal enmity, but they have earned the nation’s and the world’s eternal gratitude.
On that day, Chairman Powell became the first elected or appointed public official to stand in the breach in America’s time of testing and confront the President of the United States, man to man. The first public figure in over five years who Donald Trump has been unable to insult, harass, threaten, or persecute into silence, bludgeon into submission, or politically destroy, the Chairman of the Federal Reserve Board became the first man to stand up to the wannabe king of the United States.
History will record that Chairman Powell’s courageous televised statement in defiance of the President of the United States marked the beginning of the end of Donald Trump’s presidency, and history will richly reward Jerome Powell with its favor.
It could just well be that this honorable humble public servant single-handedly saved America’s Democracy, Constitution, and Rule of Law, if only the others of America’s institutions of government, democracy, and law will finally summon the same courage and follow Jay Powell’s noble and courageous lead before it’s too late.
Jay Powell was always the one man in the world who could stand up to Donald Trump, and Trump knew it, which is why, despite his false bravado, he feared the Reserve Board Chairman. Trump forced the latest confrontation with Jay Powell in one last desperate attempt to force Powell from office so that he could finally seize control over the independent Federal Reserve Bank in the eleventh hour and manipulate the interest rates to disguise the crippling economic impact of his sweeping, unconstitutional global tariffs and his unconstitutional war in Iran. It turned out to be the worst miscalculation of his life.
Donald Trump considered his years-long effort to fire Powell or force his resignation and to gain control over the independent Federal Reserve Bank to be the decisive showdown of his presidency. His face-off with the Federal Reserve was always to be Donald Trump’s Armageddon in which he victoriously vanquished his archnemesis Jay Powell and took the victor’s spoil of control over the Federal Reserve Bank.
When, not if, he succeeded, his conquest was to be the crowning achievement of his presidency — the conquest that assured the success of his entire presidency, because he would control the monetary policy of the United States and, along with it, interest rates, and thereby the economies of the world, to do with them whatever he pleased.
But Donald Trump’s gloriously imagined victory over Jay Powell and the Federal Reserve Bank was never to be and, like the Greek tragedy that it was, everyone in the world knew it, except Donald Trump.
When the day of the world heavy-weight championship finally arrived, the favored heavy-weight Reserve Board Chairman knocked out the reigning light-weight President of the United States in the opening round. The President was TKO’d in the championship fight of his life by the man he had insulted, tormented, and belittled for years.
Donald Trump had finally crossed the wrong man. It was the demure, universally respected Jay Powell who finally called Trump’s bluff, revealing that the humiliated emperor embarrassingly has no clothes.
Both America and the world had longed for a David to slay America’s Goliath and save the nation and the world from the giant’s tyrannical rampage. On January 11, As he spoke clearly, plainly, and truthfully about his ludicrously corrupt pretextual prosecution by the bully president, the entire world cheered on their new David-hero.
America and the world at last had their longed-for hero in the pitched battle for the heart and soul of America, The Honorable Jerome Powell, the courageous Chairman of the Federal Reserve Board.
History is written by the victor, Winston Churchill is (mis)reported to have said. On January 11, 2026, Jay Powell wrote the victor’s history of the 47th President of the United States before the would-be victor even got the chance.
It poetically fell to The Honorable James Boasberg to mop up after Donald Trump’s humiliating defeat at the hands of the Fed Chairman. Judge Boasberg’s swift and withering judicial confirmation of the president’s utter contempt for the Constitution and Rule of Law officially ratified the beginning of the end of Donald Trump’s presidency that Jay Powell had wrought. For his distinguished service to the country and to the Constitution, The Honorable James Boasberg is America’s other Profile in Courage and Hero in the battle for America and its future.
I subscribe to Marc Elias’ blog called “Democracy Docket.” Marc is a veteran prosecutor who is actively pursing lawsuits against the crimes of the Trump administration and winning many of them.
Together they discuss how the Trump regime has corrupted the rule of law; how grand juries have usually stood firm in defending it; why Trump and his cronies must be held accountable for their efforts to destroy our democracy; why Merrick Garland was weak but Jack Smith was strong; why the Department of Justice must always be apolitical and hold members of both parties accountable; how Pam Bondi has repeatedly broken the law; and why the Epstein Files will eventually reveal a massive coverup.
All that is to say that I found the discussion to be enlightening and informative. These two—Elias and Kirschner–are truly experts, not just someone fulminating at the latest outage.
Since the content of the blog is for subscribers only, I can’t post it in full. It is definitely worth your while to subscribe.
Here is Marc Elias’ introduction to the dialogue:
For decades, the American justice system has operated on a “presumption of regularity” — the idea that the government acts in good faith. But as we enter the second year of this administration, that presumption has become a dangerous fantasy. Glenn Kirschner spent 30 years as a federal prosecutor, and he knows that when the rule of law is hanging by a thread, there’s no such thing as “business as usual.”
Glenn joined me to explain why we need a “scorched earth” mission to investigate the criminal enterprise currently occupying the White House. We also dive deep into the Epstein files cover-up and discuss what it takes to hold the Trump administration accountable when we take back the White House in 2029.
And here is a brief snippet from Kirschner’s remarks:
Glenn: I think accountability doesn’t look like “you’ve got to throw them all in prison, they all need to be in orange jumpsuits.” That’s not accountability. My version of accountability, my definition of accountability, is if we fairly, impartially, aggressively — and I mean scorched earth — investigate in an apolitical fashion every crime that we see with our own eyes. The President and his cabinet, basically this is a criminal enterprise. I prosecuted lengthy RICO cases in federal district court in Washington, D.C. I don’t say that flippantly. This is a criminal enterprise.
So what we need to do is make sure every crime gets fully investigated through an apolitical investigation whereby we give all of the evidence to the grand jury and we let them serve as the first check on our instincts with respect to who should be prosecuted. Do we have enough evidence to make out, one, probable cause, and two, beyond that, do we prosecutors believe we have a reasonable likelihood of success on the merits, which looks like a conviction at trial? That’s some of the language taken from the U.S. Attorney’s Manual. That is our procedural Bible at the Department of Justice. Once we secure indictments against everybody who has been victimizing the American people and violating our nation’s laws, then we move into the courtroom. We try the case as best we can. We deliver it to the jury and they begin to deliberate.
Accountability is done at that point. That may sound counterintuitive coming from a prosecutor who liked winning convictions. I enjoyed holding perpetrators accountable, vindicating the rights of victims, and protecting the community. But the result is not as important as the process. Justice is a process. And once we deliver it to the second check on our instincts—the trial jury sitting as the conscience of the community, just as grand jurors do—we live with the result, win, lose, or draw: conviction, acquittal, or mistrial because it’s a hung jury where the jurors couldn’t agree unanimously on a verdict. That’s what accountability looks like: putting everybody fairly and apolitically through the criminal justice system and let first the grand jurors decide and then we let the trial jurors decide.
Trump and his Department of Justice have a very bad practice of appointing federal prosecutors without bothering to have them confirmed by the U.S. Senate, as the Constitution requires.
Several of his choices have been disqualified by federal courts. If a vacancy exists, the judges appoint a replacement. But Trump and Bondi then fire the judges’s choice.
Remember Lindsey Halligan, Trump’s personal attorney? He named her the U.S. Attorney for Eastern Virginia. She got an indictment against New York State Attorney General Letitia James, but she was never confirmed by the Senate. After six months as interim U.S. Attorney, she was removed by federal judges, and the indictment she won was dismissed as illegal.
In New Jersey, Trump picked another personal attorney, Alina Habba, as U.S. Attorney, again bypassed the Senate, and a panel of judges removed her. When the judges named a qualified replacement, Trump and the Department of Justice fired him. Having been involved in more than 4,000 lawsuits, Trump has a very long list of personal attorneys.
Judge Matthew W. Brann ruled that the appointment of the three prosecutors was illegal. Brann, a conservative Republican appointed by Obama, said that this unconstitutional maneuver put in jeopardy all the convictions secured by this office since December, when the troika took charge.
He wrote:
Using italics that demonstrated the heightened tenor of his ruling, he wrote that the Trump administration had shown through its statements and actions that it cared far more about who was running the New Jersey U.S. attorney’s office “than whether it is running at all.”
Judge Brann pointedly said that the president’s continued reliance on unlawful mechanisms to appoint top federal prosecutors meant that “scores of dangerous criminals could have their cases dismissed or convictions eventually reversed…”
During Mr. Trump’s second term, when judges have installed a U.S. attorney, the Justice Department has fired them. After it did so with an interim U.S. attorney in upstate New York recently, the deputy attorney general, Todd Blanche, wrote on social media: “Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution.”
Judge Brann, a federal judge who typically sits in Pennsylvania but was designated to handle the matter in New Jersey, referred to that statement and others like it as “combative (and legally incomplete).” He said that such assertions clearly indicated that “the Department of Justice would not permit anyone to hold any United States attorney’s office if that person was not handpicked by the president…”
Judge Brann joins a growing collection of district court judges in New Jersey and around the country whose rulings are increasingly colored by their frustration with what they have consistently characterized as the lawless behavior of the Trump administration.
In several such rulings, judges appear to be seeking strategies to address frequent violations of the law. At least three in New Jersey have proposed new processes or tactics that they clearly hope will curb the administration’s conduct.
At the same time, the administration has grown more and more belligerent toward the judiciary. Top officials ridiculed the Supreme Court after it ruled against Mr. Trump’s tariffs, and Justice Department lawyers began an appeals court brief last week by saying: “Courts cannot tell the president what to say. Courts cannot tell the president what not to say.”
Since last summer, the New Jersey prosecutor’s office has been a casualty of the chaos created by the Trump administration’s moves to retain control. Dozens of seasoned lawyers have left the office, and trial court judges have been forced to grapple with the possibility that decisions they make about criminal cases could be overturned.
The Trump administration is trying to destroy what it does not control: the electoral process, the legal system, the public’s belief in the fairness of democracy as a way of government.
Despite the Trump regime attacking the Constitution, eroding our rights, and filling every office with incompetent or malevolent individuals, our legal system has frustrated some (certainly not all) of their evil designs.
Not three hurrahs but only two. Why? The Department of Justice is now wholly under Trump’s control. It has become Trump’s law firm, answering only to him. The U.S. Supreme Court has been far too accepting of Trump’s reckless policies. Too many federal judges have gone along with him.
All too often, the regime has ignored the judges. Rulings against Trump’s policies have come from all kinds of judges, including some appointed by Trump. Grand juries have refused his efforts to indict his enemies.
Nonetheless, many federal judges across the country have repeatedly blocked the regime. Many have defended the right of due process for immigrants, many of whom are arrested without a warrant or access to a lawyer, then disappeared into a detention camp or deported to a country they never lived in.
Here are reasons for cheer.
The U.S. Supreme Court declared that Trump does not have the power to slap tariffs on every other country, because the Constitution gives the power of the purse to Congress, not the President. Trump, furious, responded by slapping a 10% tariff on every country, then raised it to 15%. Will the Supreme Court ignore his open defiance?
This is the same Court that ruled that the President is above the law. Absolute immunity. Trump is the kind of guy who loves absolute immunity for any actions he takes.
Even more powerful than the decisions of judges has been the refusal of grand juries to indict Trump’s enemies and critics. That’s why he attacked Iran without congressional approval. Why should he bother? He is above the law, the dream of a habitual law-breaker.
Many federal judges have repeatedly defended the very American idea that immigrants–even undocumented immigrants–have legal rights. They have repeatedly interfered with ICE’s efforts to arrest, detain, and oust immigrants, without a hearing, without due process.
Federal judges confounded Trump’s vendetta against big law firms who represented Trump’s enemies.They frustrated his vengeance so consistently that the Justice Department dropped the charges. The law firms that quickly acquiesced to Trump have egg on heir collective faces.
The grand juries have been dogged in their refusal to bow to Trump’s pursuit of vengeance.
When Sean Charles Dunn, a paralegal in the Justice Department hurled his footlong Subway sandwich (turkey) at US Customs and Border Patrol agents, he was charged with a crime, fired from his job, and hauled before a grand jury. The grand jury refused to indict him. The “Sandwich Guy” was briefly a folk hero for his defiance.
Mark Joseph Stern, writing in Slate, said that the grand jury’s refusal to indict appeared to be an instance of jury nullification, stating that “a grand jury will typically indict a ham sandwich, but it turns out a D.C. grand jury won’t indict the guy who threw the sandwich.”
Trump told Pam Bondi to go after his enemies and she did.
She charged former FBI Director James Comey with lying to Congress, but the grand jury refused to indict him. She charged him again, and the next grand jury did not indict him.
Bondi then went after New York State Attorney General Leticia James, who won successful convictions of Donald Trump in New York state courts.
Trump wanted her indicted for bank fraud and mortgage fraud. (DOJ allegedly received confidential information from Bill Pulte, chair of the Federal Housing Finance Agency). Eric Siebert, the first interim federal prosecutor in Virginia, who was respected by both parties, refused to bring charges because the evidence was flimsy. He resigned and was replaced by Lindsay Halligan, a personal attorney of Trump’s who had no experience as a prosecutor.
Halligan persuaded a grand jury to indict James but the prosecution was invalidated because Halligan had not been confirmed by the Senate and her predecessor had used up the 120 days when he was interim prosecutor.
Two new grand juries refused to indict James, even though they heard only the prosecutors’ evidence, not her defense. .
In another high-profile case, Secretary of Hegseth wanted to punish six members of Congress–all military veterans–who endorsed a video declaring that members of the military should not obey illegal orders. Hegseth himself was on video saying exactly the same thing a few years ago, but no matter. Trump said that their actions were “seditious” and deserved the death penalty. In another comment, he called them “traitors.” Trump’s top aide Stephen Miller said that the six were engaged in an “insurrection.”
The case was put before a grand jury by the U.S. Attorney for D.C., Jeanine Pirro, a former FOX News host.
Not one member of the Grand Jury supported the indictment.
In a separate case, Hegseth tried to reduce Senator Mark Kelly’s rank and pension to punish him for participating in the video. Kelly said he had free speech rights. Federal Judge Richard Leon, a Bush II appointee, enjoined Hegseth’s actions. Hegseth is appealing; he wants to bring Kelly down. His case, however, is absurd. How can a U.S. Senator be muzzled because he is a veteran? How can the Secretary of Defense be allowed to vindictively reduce the rank and pension of those who served honorably but had the temerity to speak their mind?
A few days ago, Federal Judge Brian Murphy in Massachusetts ruled that the government’s policy of deporting immigrants to third countries–countries they have never lived in–is illegal. This is an unusually cruel policy. The decision will of course be appealed.
So three cheers for the brave judges who stand up for the rights of individuals.
Three cheers for Grand Juries, especially those who think for themselves and refuse to be cowed by political bigwigs.
And two cheers for our legal system, which moves very slowly and can bankrupt anyone who does not have a pro bono lawyer.
At the beginning of his second term, Trump demanded that many large law firms be punished because they had opposed him in the past or represented his opponents. He threatened to bar them from any federal work unless they agreed to donate millions of dollars in pro bono services to causes of his choosing. Most law firms, among the most prestigious in the country, quickly accepted Trump’s demands.
Four major law firms decided to fight the executive order. They won in federal courts. Yesterday the Trump Department of Justice announced that it was dropping its efforts to punish the four resisting firms. The ones who quickly conceded owe Trump nearly $1 billion in legal services.
As historian Timothy Snyder wrote in his book On Tyranny, Do Not Obey in Advance. The losing law firms did not fight for their independence. They obeyed in advance.
The Trump administration plans to abandon its defense of the president’s executive orders sanctioning several law firms, according to people familiar with the matter.
The Justice Department as soon as Monday was expected to drop its appeals of four trial-court rulings that struck down President Trump’s actions against law firms Jenner & Block, WilmerHale, Perkins Coie, and Susman Godfrey.
Trump issued a string of executive orders last year against several law firms and individual lawyers that would have stripped security clearances, restricted their access to federal buildings and directed agencies to end any federal contracts with the firms and their clients.
While the administration lost its battle in court, the executive orders nonetheless put a lasting chill on the industry. Fear of the orders prompted nine large firms to make deals with the president, promising nearly $1 billion in pro bono work for causes favored by the administration. Many of the same firms that took a leading role opposing the Trump administration in court during his first term have shied away from taking on pro bono cases adverse to the government.
“This affected the interest of big law firms doing what they normally do, to stand up for people without representation,” said Scott Cummings, a law professor at the University of California, Los Angeles. “In that sense, Trump achieved something important that will linger.”
In targeting the firms, Trump cited their connections to his political rivals and criticized their diversity initiatives and pro bono work advocating for immigrants, transgender rights and voting protections. The White House had singled out these firms for representing clients including Hillary Clinton and George Soros, and for ties to figures such as Robert Mueller, who as special counsel led the investigation into Russian interference in the 2016 election.
The orders set off a panic among law firm leaders across the country, especially after one of the biggest firms, Paul Weiss, chose to settle with the White House rather than gamble on suing the administration.
Others chose a combative approach, arguing in a series of lawsuits that Trump’s actions amounted to unconstitutional retaliation and an abuse of executive power. The firms said the orders would be devastating to their business and that they risked losing lucrative clients that work with the federal government….
An ideological mix of judges ruled against the administration, saying the executive orders undermined bedrock principles of the U.S. legal system. In one decision, Judge Richard Leon, an appointee of President George W. Bush, said blocking the sanctions was necessary to preserve an “independent bar willing to tackle unpopular cases, however daunting.”
Joyce Vance has an excellent post about the law firms that defended themselves and those that capitulated at once to Trump.
She wrote:
So far, four different federal judges have held the orders are unconstitutional. While one of those judges was appointed by Barack Obama and another by Joe Biden, two of them were appointed by George W. Bush— bad math for the administration.
As for the firms that capitulated early on, they too appear to have miscalculated. Neera Tanden, who served in the White House during the Biden administration, explained the cost on Twitter:
Former Associate Attorney General Vanita Gupta, who is now the Director of the Center for Law and Public Trust at NYU Law School, explained it like this: “The law firms that capitulated to blatantly unconstitutional orders out of fear and for increased profit undermined the rule of law and the legal profession in this country. This episode will be remembered as demonstrating the difference between institutions that had the courage to uphold the Constitution and fight bullying, and those that didn’t and gained nothing. Let’s hope that media companies, universities, and other organizations pay heed.”
Standing up to the bully is the right response. Yes, it requires some initial courage. But the bully ultimately backs down. And every time he does, we win. Today, we won again, thanks to some lawyers who were willing to take the risk and be brave.
Erwin Chemerinsky is a leading Constitutional scholar and dean of the law school at Berkeley. He wrote the following analysis for CAFE, a publication of legal scholars
He writes:
The attack on Iran shows how far this country has gone in abandoning checks and balances and creating a president with virtually limitless power. President Trump could have and should have sought congressional approval for this military action, as President George W. Bush did after 9/11 in having Congress adopt the Authorization for the Use of Military Force. But instead, President Trump acted unilaterally, again rendering Congress meaningless.
The Constitution created an elegant structure that was meant to require two branches of government to be involved for any major action of the federal government. Enacting a law required the involvement of Congress and the President. Enforcing a law necessitated a prosecution by the executive branch and a conviction by the courts. Appointing ambassadors or Supreme Court justices required nomination by the President and confirmation by the Senate. A treaty is negotiated by the President, but effective only if ratified by the Senate.
War powers, too, were divided between Congress and the President. Under Article I of the Constitution, Congress has the power to declare war, while Article II says that the President is the Commander-in-Chief. Although there has long been debate over the power of the President to use troops without congressional approval, the Constitution was meant to have both branches of government involved before the United States goes to war. Most simply, the framework of the Constitution intended that Congress would decide whether the United States would be involved in a war, and if so, then it would be for the President to decide how to wage it.
Of course, there can be emergencies where it is impossible for Congress to be consulted or involved before troops are used. But no one realistically can say there was an emergency that required military action in Iran. That country’s development of nuclear weapons and its human rights violations are not new. In fact, this is the second military action against Iran in the last year. President Trump has been threatening new military action against Iran for weeks.
Moreover, the War Powers Resolution, a federal statute adopted in 1973, requires congressional approval for the United States to be involved in a war. Under that statute, the president must notify Congress within 48 hours of the military action, and must seek congressional approval for troops to remain for more than 60 days. Congress adopted this in an attempt to reassert its powers after the disastrous war in Vietnam. The War Powers Resolution reinforces the basic constitutional principle of checks and balances and the Constitution’s rejection of unconstrained presidential power.
There is no doubt that we are at war in Iran. President Trump has described this as a “massive” military effort and has warned that there likely will be the loss of lives, in Iran and Israel, across the Middle East, and of American soldiers.
No one person should be able to make this choice under a Constitution based on the separation of powers. President Trump should have sought congressional approval, like the Authorization for the Use of Military Force passed in 2001. This would have allowed scrutiny of President Trump’s claims about the need for this military action.
President Trump has asserted that the military action was needed because Iran had enough available nuclear material to build a bomb within days and was developing long-range missiles that would soon be capable of hitting the United States. President Trump’s long history of lying to serve his purposes certainly should warrant scrutiny of his claims. Congress should have had the opportunity to do this before the United States went to war in Iran.
There is strong reason to believe that President Trump’s claims of a need for this military action are simply false. There are serious doubts that Iran has sufficient nuclear material to construct an atomic bomb. In fact, President Trump declared not long ago, after the first military action against Iran, that we had successfully destroyed Iran’s nuclear capacity. Experts also disagree that Iran has long-range missiles.
None of this is to deny that Iran has engaged in brutal repression. Nor is it to deny the concern over the dangers of Iran having nuclear weapons. But whether these fears justified military action should have been scrutinized, debated, and decided in Congress.
President Trump likely feared that if he had gone to Congress for authority to launch military actions against Iran, even the Republican controlled House and Senate would have said no. But that is exactly why the Constitution intended two branches of government to be involved in war-making decisions.
President Trump certainly also believes that he did not need congressional approval and that, as Commander in Chief, he can use the military however he wants. Unfortunately, there have been many instances in which both Republican and Democratic Presidents have used troops without congressional authorization.
But under a Constitution committed to checks and balances, there must be some limit on what the President can do unilaterally, especially in a matter so grave as involving the United States in war. It is now imperative that Congress exercise its constitutional powers. It should immediately hold oversight hearings to learn the objectives of the military action in Iran. Congress must be part of deciding what comes next.
More fundamentally, we need to recognize a serious flaw in how the Constitution has come to be implemented. There is no separation of powers and no checks and balances when it comes to war powers. We have come to empower the President to do whatever he wants. We should recoil at this and be very frightened by it, regardless of who is in the White House.
It is impossible to know the outcome of the military action in Iran. Will it lead to a regime change, an end to Iran’s nuclear program, and a humane, even democratic, government? Or will it create a power vacuum and lead to a disaster like the one that occurred in Iraq after the military action there? Will the loss of life from this military action be minimal, or will a desperate regime in Iran cause catastrophic harm?
But it is precisely the uncertainty over grave consequences whenever there is a war that justifies why no single person should be able to have so much power. We must find a way to ensure checks and balances in the exercise of the war-making power.
Stay Informed, Erwin
CAFE Contributor Erwin Chemerinsky is the Dean of Berkeley Law, where he also serves as the Jesse H. Choper Distinguished Professor of Law. He is the author of over 200 law review articles and nineteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. He is a contributing writer for the Los Angeles Times Opinion section, and writes regularly for the Sacramento Bee, the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. He also argues appellate cases, including before the United States Supreme Court.
One batch in particular was missing. It consisted of FBI interviews with a woman who claimed she was raped when she was a minor by both Jeffrey Epstein and Donald Trump.
The law requiring the release of the files specifically said that the names of victims should be redacted, but not the names of the perpetrators.
There is a coverup underway. Unlike in other countries, no one is being held accountable for their participation in Epstein’s illicit activities. At least a few are taking responsibility: Bill Gates apologized to the staff of his foundation and admitted having affairs with two Russian women.
The vast trove of documents released by the Justice Department from its investigations into the convicted sex offender Jeffrey Epstein failed to include some key materials related to a woman who made an accusation against President Trump, according to a review by The New York Times.
The materials are F.B.I. memos summarizing interviews the bureau did in connection to claims made in 2019 by a woman who came forward after Mr. Epstein’s arrest to say she had been sexually assaulted by both Mr. Trump and the financier decades earlier, when she was a minor.
The existence of the memos was revealed in an index listing the investigative materials related to her account, which was publicly released. According to that index, the F.B.I. conducted four interviews in connection with her claims and wrote summaries about each one. But only one summary of the four interviews, which describes her accusations against Mr. Epstein, was released by the Justice Department. The other three are missing.
The public files also do not include the underlying interview notes, which the index also indicates are part of the file. The Justice Department released similar interview notes in connection to F.B.I. interviews with other potential witnesses and victims.
It is unclear why the materials are missing. The Justice Department said in a statement to The Times on Monday that “the only materials that have been withheld were either privileged or duplicates.” In a new statement on Tuesday, the department also noted that documents could have been withheld because of “an ongoing federal investigation.” Officials did not directly address why the memos related to the woman’s claim were not released.
The woman’s description of being assaulted by Mr. Trump in the 1980s is among a number of uncorroborated accusations against well-known men, including the president, that are contained in the millions of documents released by the Justice Department.
When the files were made public late last month, officials described the trove as including all material sent by the public to the F.B.I. “Some of the documents contain untrue and sensationalist claims against President Trump that were submitted to the F.B.I. right before the 2020 election,” the department said in a statement at the time, calling such claims “unfounded and false.”
Mr. Trump has repeatedly denied wrongdoing. In a statement on Tuesday, a White House spokeswoman, Abigail Jackson, said Mr. Trump had “been totally exonerated on anything relating to Epstein…”
The woman who made the accusation about Mr. Trump came forward in July 2019, days after federal investigators arrested Mr. Epstein on sex-trafficking charges, according to records in the public files of tips the F.B.I. received during that period. She claimed that she had been repeatedly assaulted by Mr. Epstein when she was a minor in the 1980s, according to a summary of an F.B.I. interview with her on July 24, 2019.
The F.B.I. did three subsequent interviews to assess her account in August and October 2019 and made a summary of each interview, according to the index of records compiled in the case. But the memos describing those three interviews were not publicly released.
The public files do contain a 2025 description of her account, as well as other accusations against prominent men contained in the documents. In that 2025 memo, federal officials wrote that the woman had said that Mr. Epstein introduced her to Mr. Trump, and that she claimed Mr. Trump had assaulted her in a violent and lurid encounter. The documents say the alleged incident would have occurred in the mid-1980s when she was 13 to 15 years old, but they do not include any assessment by the F.B.I. about the credibility of her accusation.
The Times’ examination of a set of serial numbers on the individual pages in the public files suggests that more than 50 pages of investigative materials related to her claims are not in the publicly available files. The missing materials were reported earlier by the journalist Roger Sollenberger on Substack and by NPR.
Joyce Vance is a former federal prosecutor who explains legal issues to the lay public. Her writing is clear, concise, and free of legalese..
She writes here about Judge Aileen Cannon, who has almost single-handedly protected Trump from facing criminal prosecution by her tactics and rulings.
Her post is titled, “If DOJ Is Trump’s Law Firm, Aileen Cannon Is His Judge.” I have heard speculation that if Alito or Thomas should retire, Trump may well replace him with Cannon because she saved him from trial and ignominy.
In her latest ruling, a few days ago, she barred the public release of special prosecutor Jack Smith’s report about Trump and his retention of classified documents after leaving office. As Vance says, the public release of such reports is routine. But Judge Cannon saw something in the report that might be embarrassing for Trump, so she blocked their release.
Hopefully, a higher court will overrule her or some anonymous person who has the report will post it on the Internet.
I am not pasting Vance’s commentary in full. I urge you to open the link and finish reading.
Vance writes:
South District of Florida federal Judge Aileen Cannon has history with Donald Trump. He appointed her to the bench in May 2020. She was confirmed that November. Then came the June 2023 indictment of Trump by federal prosecutors. It landed on her desk.
Some judges would have recused. There is no precedent, because no former president had been indicted previously. But a reasonable jurist might have thought that the public wouldn’t have confidence in the objectivity of a judge sitting on a criminal case against the president who appointed her. It would have been the safe bet for someone concerned about the integrity of the judicial branch of government. Judge Cannon did not recuse.
To be fair, the government didn’t ask her to. That turned out to be a miscalculation.
From the earliest moments of the case, even before it was indicted, Cannon’s decisions were questionable. Mar-a-Lago was searched on August 8, 2022, well before Trump’s indictment and Jack Smith’s appointment as special counsel. Cannon was asked to consider the unusual motion Trump’s lawyers filed to restrict the Justice Department’s ability to use evidence seized during the search. It was an attempt to impose an unprecedented (back when that word still had meaning) constraint on the government’s ability to investigate a criminal case.
But Cannon agreed with Trump’s position, assigning a special master to review seized documents. Her decision dramatically slowed the progress prosecutors were able to make. On December 1, shortly after Jack Smith’s appointment in November, the Eleventh Circuit Court of Appeals reversed Cannon. The per curiam order did not mince words: “This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”
The manifestly unmeritorious decision she made in Trump’s favor pre-indictment was a harbinger of everything that was to come. The case was indicted on June 8, 2023. There is no way to know how much the loss of four months in giving prosecutors full access to the evidence against Trump contributed to the ultimate demise of the case, which was dismissed without going to trial on Smith’s own motion, once Trump was reelected.
Once Trump and his co-defendants were charged, Judge Cannon ruled in their favor at virtually every opportunity. She ruled for them on pretrial motions, like this one, after delaying. She rejected a request by prosecutors, a fairly routine one, to protect witness identities pre-trial. A timeline of her rulings and the delays they engendered is set out at length in this ABC report. Ultimately, Smith’s request to dismiss the case went to the Eleventh Circuit because Cannon had dismissed the prosecution in July 2024, accepting the highly questionable defense theory that Jack Smith’s appointment was unlawful. That decision was on appeal when Trump was elected.
We discussed Cannon’s decision in this post, where I noted that “Until today, every federal judge that considered the issue—all eight of them—unanimously found that attorneys general have the constitutional authority to appoint a special counsel. But Judge Aileen Cannon disagrees. In a 93-page opinion, nicely timed for the first day of the Republican convention … she dismissed the entire indictment.”
But pursuant to DOJ rules that prohibit the prosecution of a sitting president, Smith had little choice but to ask the Eleventh Circuit to dismiss the case as to Trump. When he did so, he wrote: “This outcome is not based on the merits or strength of the case against the defendant.”
That catches us up, more or less, to what happened today, when Judge Cannon ruled on what she characterizes as two “unopposed” motions, one by Trump, one by his co-defendants, both designed to prevent release of Volume II of Jack Smith’s special counsel report, the one covering the Mar-a-Lago case. If it weren’t such a serious matter, “unopposed” would be funny—these motions preventing the routine release of a special counsel’s report are only unopposed because the Attorney General, who should have filed an opposition, lives in Trump’s hip pocket. Cannon has managed to hold up the release of Volume II for over a year at this point.
Please open the link to finish this valuable analysis.
Diane Ravitch's blog 