Harry Litman's First Substack Post - Constitution in Crisis - Bulletin 1

The DOJ, DJT, Matt Gaetz and why they led me to Substack

SOURCE: Zack Frank / Shutterstock.com

Along the path of this long, strange trip, I’ve often been encouraged to start a Substack. I always decided against it—but here I am, toes on the high dive, about to jump into the Substack pool. Why now? And what can I bring to this already crowded space?

I was on with Chris Hayes on Friday talking about Matt Gaetz—much more on that below. But Chris started out by generously noting what he described as my “unique” perspective on the Department of Justice and the rule of law: I’ve been a senior official on the fourth floor of Main Justice, an important culture unto itself; a United States Attorney, running one of the 93 offices in the field; and, before that, a line prosecutor, one of the 10,000 or so in the trenches. I’ve also taught criminal law and constitutional law, examining these issues from a scholarly perspective, and penned a weekly column in the LA Times.

I have to say, I don’t know anyone else with quite that combination of vantage points on the DOJ, criminal prosecution, and the Constitution.

Goody goody for me, right? But what does this panoply of experience mean today, at the advent of what feels like an impossibly long stretch in the desert under Donald Trump’s second presidency?

In the wake of the election, I know that a lot of people have checked out—from exhaustion and disappointment. I totally get it. The prospect of explaining the perils of Trump’s actions over the next two years—starting with just the first two weeks, already replete with aggressive lurches toward authoritarianism—feels exhausting even to me. For those who need a break right now, that’s more than understandable.

But here’s the thing: Donald Trump is about to seize the levers of federal power. Indeed, he’s already acting as if he has. For the past 18 months, we’ve been bludgeoned by warring megaphones of political claims that, at times, have felt like an ingenious torture for POWs. But now, the steps toward authoritarianism and the erosion of democracy won’t come in broad proclamations. Rather, they will involve the manipulation of government power in ways that are likely inscrutable to most people.

The Constitution is in crisis.

So that’s why you see me on the high dive about to take the plunge. I anticipate in Trump 2.0 a weekly erosion of norms, abuses of law, harassment of enemies, and weakening of federal law enforcement functions—all with sharp and possibly irreversible costs to our liberty and security. That’s a far-reaching and highfalutin claim, I know, but I think the evidence of the last nine years more than justifies it. And if I’m wrong, well, in a way, all the better.

Other really good people are out there explaining the intricacies of the political drama—the hand-to-hand combat, the hope of recapturing at least the House in 2026, the personalities, and the psychopathology of the new government. My goal with this Substack is to explain, in a clear but nuanced way, the damage Trump and his allies are wreaking on our constitutional system and our long-standing commitment to the rule of law.

Much of this will be a greatly improved version of the discourse I’ve tried to deliver with long tweet threads on Twitter. That was always awkward—dozens of sound bites meant to substitute for an entire meal—and I don’t think a lot of people followed through to the end. And that was before Twitter became so degraded, partisan, and crass. Like many of my colleagues, I’ve now joined Bluesky.

I’ve offered more thought-through analyses in my LA Times column, but that’s only about three times a month, and it costs twice as much to subscribe as this Substack. (Fun fact: You can get it for free—along with a lot of other content, including monthly Q&As with me—if you join the Patreon for Talking Feds: patreon.com/talkingfeds.) I’m still doing TV hits—six this past week on CBS, CNN, and MSNBC—but TV is hardly a reliable way to convey detailed thoughts precisely.

Which brings me back to Matt Gaetz and my discussion with Chris Hayes last week (which has been widely reported in the media). The issue for public debate is whether the House should release the Ethics Committee report detailing a long series of accusations of sexual misconduct and serious drug use. Gaetz resigned from Congress after the Attorney General nomination in a ham-handed effort to keep the report from being made public, since the committee’s jurisdiction is limited to current members. And now, Speaker of the House Mike Johnson is defending that regular practice by saying the report should not see the light of day.

Gaetz’s defense is that the Department of Justice conducted a lengthy investigation into possible federal criminal violations and opted not to charge him—though they charged and convicted his partner in crime, Joel Greenberg, who is currently serving an 11-year sentence after pleading guilty to multiple federal crimes, including sex trafficking.

On the merits, Gaetz repeatedly denies wrongdoing, arguing that he was “cleared” by the DOJ. His attorney even claimed: “Merrick Garland’s DOJ cleared Matt Gaetz and didn’t charge him. Are you alleging Garland is part of a cover-up?”

Both these points—the Ethics Committee’s jurisdictional limits and the DOJ’s decision not to prosecute—are red herrings.

Gaetz’s reliance on Merrick Garland’s DOJ is wildly inappropriate, especially for someone aspiring to lead federal law enforcement. It’s axiomatic—and critical to protecting defendants everywhere—that a decision not to prosecute does not imply innocence. In Gaetz’s case, it seems the government verified much of his alleged misconduct: a party lifestyle centered on finding young women via a sugar daddy app and engaging in group sex fueled by MDMA and cocaine. He came within a hair’s breadth of indictment, but the government ultimately concluded that the alleged victim—a young woman under 18—was a poor witness for several reasons. The main point for current purposes is that this is light-years away from a clean bill of health regarding the conduct now at issue.

Similarly, Speaker Johnson’s stand for consistency in not publicizing reports on former members is entirely beside the point. If anything, it works against Gaetz, as it insists on following routine practice. In the case of Gaetz—a nominee for a cabinet position and potentially the chief federal enforcement officer in the nation—routine practice requires a full-field background investigation to uncover all potentially relevant information. This allows the Senate to exercise its constitutional role of advice and consent.

When I was at Main Justice, I reviewed scores of background investigations for judicial candidates and underwent two full-field investigations myself for high-level government positions. To cut to the chase, if even 10% of the allegations against Gaetz were substantiated, it would categorically disqualify him from serving as Attorney General in any normal era.

Indeed, such conduct would disqualify him from even an entry-level professional position at the DOJ. All DOJ professionals undergo background investigations—less intrusive than full-field cabinet-level investigations, but still fairly thorough. When I was at the DOJ, we set clear criteria for disqualifying behavior. For example, repeated use of MDMA and cocaine after law school would immediately exclude an applicant.

This isn’t just about moral condemnation of federal criminal behavior (the standards are more forgiving for marijuana use). The primary concern is the security clearance process, which ensures federal law enforcement personnel—especially those with access to classified information—aren’t vulnerable to blackmail.

This is no idle concern. As the Mar-a-Lago case demonstrated, breaches of classified information can have catastrophic consequences for national security. Since 9/11, the DOJ has had wide-ranging national security authority, which includes access to sensitive intelligence that adversaries could exploit, potentially endangering U.S. assets.

Apply this to Matt Gaetz, and the risks are off the charts. As the head of federal law enforcement, he would have access to everything. His political prominence increases both his vulnerability and the potential damage should classified information be compromised. Worse, Gaetz denies all wrongdoing, which means anyone with credible evidence against him—Joel Greenberg and others from Gaetz’s years of questionable behavior—has significant leverage over him.

And that’s before we consider whether Gaetz’s documented behavior disqualifies him in the Senate’s eyes from the high responsibility of cabinet-level service. Many nominees have had their ambitions dashed by far less eyebrow-raising conduct.

What urgently needs to happen is the normal constitutional process: the Senate must exercise its role of advice and consent. That requires the FBI to conduct a full-field investigation, including the allegations in the Ethics Committee report and beyond. Gaetz would be interviewed, and any untruthful responses would constitute felonies as well as red flags. The FBI would then interview scores of colleagues, neighbors, and associates, asking wide-ranging questions about his behavior, including any derogatory statements about specific groups.

The entire package, along with other biographical materials, would then go to the Senate. It’s a nightmare scenario for Senate Republicans, many of whom fear appearing disloyal to Trump. But it’s their constitutional duty to exercise judgment on behalf of the people regarding whether Gaetz’s character and conduct disqualify him from serving in one of the most sensitive positions in the federal government. If the Senate gives him a pass, it will mark a spectacular breakdown in the advice and consent process.

The other real danger is Trump manipulating the law to evade this scrutiny altogether. The idea of manufacturing a recess to enable a recess appointment—thereby bypassing Senate review—is another serious transgression and a giant step toward authoritarianism. I may explore this further in another post, but suffice it to say, understanding how the process should work is critical to grasping why this would be such a dangerous move.

So there you have it. I’m now soaked from taking the plunge into the Substack pool. I plan to post 2–3 entries a week here. As with all our work on Talking Feds, we remain completely independent. Even the podcast has minimal advertising to ensure a better listening experience.

If you think these Substack contributions will be valuable, subscribing would be a great way to support us—especially as we’re just starting out. But in any event, I hope you’ll check out the next few entries and see if this is the kind of content you’d like to follow as Trump 2.0 delivers constitutional crises and challenges to democracy that I aim to elucidate.

I know there are countless Substacks out there, but I hope this one will carve out its own distinctive and valuable niche.

Talk to you later.