Not Too Shabby

A week that, on balance, cut for democracy.

This article would normally be exclusive to paid subscribers because it’s our third essay of the week. But these are dark times, and when there are genuine rays of hope to share, I want everyone to have access to them. If your circumstances permit, I hope you’ll consider subscribing—your support is what makes this newsletter possible. And truly, thank you for being part of the Talking Feds community. It’s community and engagement that will defeat perhaps the gravest challenge to democracy in the history of the Republic.

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Lighter Fare

It’s been a heavy week of authoritarian assaults on our institutions by Trump, Blanche, and the administration’s foot soldiers. Many of you are feeling a sense of hopelessness in the face of relentless abuses of power. Here at Talking Feds, we like to lighten things up on Fridays with our five-words-or-fewer contests—and this week, we have even more reason to do so. I’m here to share five heartening developments for the rule of law.

Before we get into the good news, let’s start by kicking off a new five-words-or-fewer contest. The Melania director, Brett Ratner, traveled with Trump to China. We asked our panel of Alyson Camerota, Adam Klasfeld, and Elliot Willians: What new film is Ratner working on? You can check out our answers at 57:08 in last week’s episode, “Race to the Bottom.” You can join in on the fun by submitting your best answer for a chance to win a Talking Feds mug. I’m looking forward to reading your answers.

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Every week brings up fresh rot from the cesspool that Donald Trump occupies. This week was no exception: we reckoned with shameless reprisal prosecutions, the grotesque construction projects to turn D.C. into Trump’s temple, and, worst of all, the sickening slush fund to enrich insurrectionists at taxpayers’ expense.

But the week also brought several genuinely heartening developments, each worth taking a beat to savor on a Friday. And that’s in addition to the opinion striking down the administration’s effort to impose an official MAGA-style ideology on the instruction at West Point, a development I chronicled in yesterday’s Substack. And I’m not even counting the late-breaking news of the arrest of an ICE agent, Christian Castro, on Minnesota state charges of assault for the shooting of a Venezuelan immigrant during Operation Metro Surge.

Let’s take the five in order of ascending consequence.

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1. Judges Shut Down Alabama’s Redistricting Attempt

The Supreme Court’s decision in Louisiana v. Callais last month left Section 2 of the Voting Rights Act with barely a pulse. The decision, which I’ve written about at length, sent Republican legislatures scrambling across the South to redraw districts and squeeze out Democratic seats. They’ve posted some disheartening gains, with further assistance in a couple of instances from the Supreme Court.

In Alabama, state officials decided to dust off the same 2023 congressional map that a three-judge federal panel had already struck down, figuring that Callais had changed the legal landscape enough to let it through. The Supreme Court, in a terse, unexplained one-paragraph order, sent the case back to that same panel for another look.

The panel looked. Its answer, issued Tuesday in a 79-page opinion by judges Marcus, Manasco, and Moorer—one Clinton appointee, two named by Trump—was once again no. Callais changed the Section 2 standard, the panel said, but the district court had also found that Alabama’s map violated the Fourteenth Amendment through intentional racial discrimination, a constitutional red line that Callais didn’t erase. That constitutional finding—built on an 11-day trial, 51 witnesses, nearly 800 exhibits, and a 268-page opinion documenting a legislative process that made it “mathematically impossible” to draw a second opportunity district—stands on its own. “Our re-examination in light of Callais yields the same conclusion.”

The ruling is the last hurrah of a record assembled before states knew they needed to camouflage racial motivation as partisanship. Going forward, as Justice Elena Kagan warned in her Callais dissent, legislatures will simply call it politics — which the Court’s decision in Rucho put beyond federal court reach. But here Alabama is stuck with the record it made before Callais turned Section 2 on its head.

Alabama’s AG Steve Marshall reacted to the loss with defiance, boasting it’s “not a matter of whether we win this case, only when.” He has raced to the Supreme Court for an emergency stay. His odds are long: the Court’s opinion in Callais defended its decision by insisting, disingenuously, that section 2 still reaches intentional discrimination, and the record of that here is robust.

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2. South Carolina Stands Down from Redistricting

The second development came the same day, in South Carolina, and it required no court at all—just a few Republican state senators with a little backbone and common sense.

South Carolina has one majority-Black congressional district, currently represented by Jim Clyburn, one of the most influential and respected figures in American politics. His early endorsement of Joe Biden in 2020 was widely seen as decisive in rescuing Biden’s candidacy.

Republicans in the state legislature had a motion before them to redraw the map and eliminate that district, even as early voting had already begun. They couldn’t muster the votes. Several Republican senators said, in substance: we are not going to throw everything into chaos for voters who are already casting ballots, and we are not going to redistrict Jim Clyburn’s seat out of existence mid-election. Ethics and common sense, to say nothing of the sheer prominence of the figure they were targeting, carried the day.

In the redistricting wars that Callais triggered, and that to date have worked to Republicans’ advantage, that makes two last-minute seats preserved for Democrats in one day.

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3. Judge Hannah Dugan’s Possible Route to Overturning Conviction

Now, the case of former Milwaukee County Judge Hannah Dugan, which has taken a dramatic turn that most coverage has missed entirely.

Dugan was convicted last year of felony obstruction under 18 U.S.C. § 1505. The evidence at trial was that she had knocked heads with ICE agents who had come to the courthouse to arrest an undocumented immigrant, Eduardo Flores Ruiz, who was in her courtroom on a separate charge.

The jury acquitted Dugan of a misdemeanor count of concealing Ruiz from ICE. But it convicted her under §1505 of obstructing or impeding a “pending proceeding” before a federal agency or department. She has since resigned her seat.

The felony conviction was the Trump Justice Department’s signature win in its relentless campaign to criminalize any pushback against its immigration enforcement.

But her conviction has now been thrown into serious doubt by a recent legal development.

The jury that convicted Dugan was instructed about the “pending proceeding” element in a way that naturally swept in the ICE operation to arrest Ruiz. The judge relied on a district court case, U.S. v. Hernandez.

But here’s the big turn: earlier this month, the Fourth Circuit overturned the Hernandez case. It found that ICE’s arrest efforts didn’t constitute a “pending proceeding.”

It makes sense. ICE’s operations based on its own administrative warrant, signed by the agency itself, are not comparable to a judicial proceeding based on a judicial warrant issued by a neutral magistrate after a probable cause determination; it’s more comparable to police writing and issuing a ticket.

Armed with the overruling of the case on which the trial judge, Lynn Adelman, had relied in issuing instructions, Dugan’s lawyers went back to the court. And Judge Adelman has now postponed the sentencing and scheduled oral argument for next Wednesday.

Reversals based on flawed evidentiary instructions are rare, but you’ve got to like Dugan’s prospects. The case on which Adelman relied is now off the books, and the court of appeals’s decision going the other way is, in the words of that court, a case of first impression, i.e., the only precedent on the issue out there.

That means Adelman’s choices are to reject the Fourth Circuit’s view (it’s not binding on him since he is in another circuit), which is the sole authority on point, or to apply it. And applying it has to mean a reversal of conviction.

The United States could still retry Dugan, but if the law as it stands is that the ICE operation wasn’t a pending proceeding, there’s no room to charge under §1505, while the concealment charge is foreclosed on double jeopardy grounds.

This matters well beyond Dugan’s case. If the ICE administrative operation is not a “pending proceeding,” then federal prosecutors lose the primary cudgel they have used to threaten local judges and courthouse personnel across the country with felony charges. And the Trump DOJ loses its one high-profile criminal conviction from its entire immigration crackdown campaign.

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4. Ingenious Filing from Former Judges Could Upend the IRS “Settlement”

There’s been an ingenious and potentially consequential brief filed in the Southern District of Florida where Trump v. IRS, the case that the administration has used to anchor the squalid $1.776 billion slush fund, was brought and voluntarily dismissed.

Recall that the judge, Kathleen Williams, had sussed out that the case might be collusive, both sides controlled by Trump, in which case it could not be heard in the federal courts. She asked for briefing on the issue, which put the DOJ to a choice between two untenable arguments: either that it was genuinely opposed to Trump, a position that contradicted the facts; or that the court nevertheless has power to act, a position that contradicted the Constitution.

The administration instead took the pusillanimous course of voluntarily dismissing the complaint before the briefing deadline, then immediately announcing a “settlement” they had never placed before the court.

Judge Williams noted, in her dismissal order, that “there is no settlement of record.” Her discomfort, a sense of something being awry, seemed evident from the opinion, but she determined that she had no choice but to allow the dismissal.

Now, thirty-five former federal judges have filed a motion advising her that she did have a choice, and she still has a choice. The roster is impressive, beginning with Michael Luttig, the eminent conservative jurist and vehement Trump critic, and including former judges Nancy Gertner, John Jones III, Shira Scheindlin, Paul Michel, Fern Smith, and Kathleen O’Malley.

Her former colleagues urge Judge Williams to reopen Trump’s case under Federal Rule of Civil Procedure 60. Rule 60 operates as a narrow exception to the general rule that a final judgment—which her dismissal effected—cannot be reopened. In fact, as I wrote about last month, Rule 60 permits a final judgement to be reopened where there has been fraud on the court, and also when the court lacked jurisdiction over the dismissed case. More: the court can act entirely on its own motion, without anyone’s invitation.

In fact, the motion has the potential of being a game-changer in the overall pushback against the slush fund. If she accepts the invitation of the 35 former judges, as I think is likely, Judge Williams could reopen the case and hold that it was collusive or even fraudulent.

That action would leave the settlement agreement itself denuded of its legal dress: a bona fide settlement of a genuine dispute. The Judgment Fund statute and the compromise settlement authority both require a real case. If, as the judges argue, there wasn’t one, the entire statutory underpinnings collapse.

Of course, the administration could assert a “mere flesh wound” and try to tough it out with an argument that a settlement of a claim doesn’t need judicial approval. And the problem of a plaintiff with standing to sue to set aside the whole corrupt arrangement remains. But if Judge Williams adopts the course of action suggested in the amicus brief, it pulls the rug out from under the flimsy legal arguments of Trump and Blanche. At that point, the arrangement stands revealed for exactly what it is: the president settling with himself and creating an obscene bounty for his wholly undeserving friends, with no court, no adverse party, no legitimate legal authority of any kind.

We still probably would need some kind of political solution, but the opponents, including the increasing number of Republicans who are appalled by the self-dealing and terrified of having to support it to their constituents, have a much strengthened hand to play.

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5. Judge Brinkema Halts the Weaponization Slush Fund

Finally, and “this just in” as they say in the newspaper biz (is there still a newspaper biz?), this morning Judge Leonie Brinkema of the Eastern District of Virginia granted a temporary injunction forbidding the administration from taking any action to execute the $1.776 billion fund and set a quick turnaround briefing schedule on the plaintiffs’ motion for a preliminary injunction.

The plaintiffs are two individuals, and the City of New Haven, who allege weaponization by the Trump Administration harmed them—and they bring the receipts—and therefore that the fund’s selective compensation of alleged Biden Administration weaponization victims singles them out for disfavored treatment based on viewpoint and politics. Added to that are two organizations, Common Cause and the National Abortion Federation, which allege that the awards from the fund will be used by the beneficiaries to target them.

There are certainly going to be hotly contested standing issues here as well, but Brinkema’s order is the first to put a freeze on the whole operation. Even assuming standing problems, the order should remain in place at least through the issuance of her opinion in the wake of the hearing she has set for June 12, unless the administration is able to get emergency relief from the Fourth Circuit, which has been far from the most administration-friendly of the courts of appeals.

It may take many blows to topple the whole pernicious arrangement, but this is surely one of them.

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Enjoy the weekend. Monday brings us back to the barricades: the slush fund fight is not over, the reprisal prosecutions continue, and Trump’s ambitions for remaking Washington remain as sordid as ever. But as the week ends, these five developments are worth holding onto for a good minute.

Talk to you later.