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PaperclipPerfector  1mo ago (text post)   23310 thread views

Culture War Roundup for the week of November 24, 2025

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New updates in the Comey and James cases. Both indictments dismissed because Lindsey Halligan was not lawfully appointed as United States Attorney for the Eastern District of Virginia and so all her actions as such are void and without effect. Comey and James opinions. Though the two are substantially identical, having both been authored by the same judge. These dismissals are without prejudice meaning the government can try and secure further indictments. Although, in Comey's case this faces some additional hurdles since the statute of limitations for his offense expired several days after the first indictment against him was secured.

Note that a similar dispute is playing out in New Jersey with respect to the appointment of Alina Habba as United States Attorney for the District of New Jersey and in Nevada with respect to Sigal Chattah's appointment as United States Attorney for the District of Nevada. These cases are a little more complicated than Halligan's due to implications of the Federal Vacancies Reform Act but they arose due to circumstances like what Halligan is facing now.

At the heart of these disputes is 28 USC 546 which provides:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

The dispute is principally about whether the Attorney General is permitted to make successive 120-day appointments or whether the Attorney General gets a single 120-day appointment and then when that expires the District Court makes the appointment as to who shall be United States Attorney. In Halligan's case Erik Siebert had already been appointed for 120 days earlier this year and was appointed by the district court upon expiration of that appointment. He then resigned under pressure to prosecute James and Comey, whereupon Bondi purported to appoint Halligan under 28 USC 546. Naturally, the court finds that Attorney General Bondi has had her 120 day appointment and so authority to appoint a new USA for EDVA lies with the district court.

A lot of IMO naive discussion under this post. Lawfare is a rigged game and discussing bias political outcomes as if they were normal legal procedures is silly.

Trump: “2+2=4”

Judge: “Actually, 2+2=5. Case dismissed!”

Commentariat: “How could Trump screw up this badly? Why doesn’t Trump have competent lawyers? Does Trump hire too many bimbos? Why was his 2+2=4 case so weak?”

Etc etc

Commentariat: “How could Trump screw up this badly? Why doesn’t Trump have competent lawyers? Does Trump hire too many bimbos? Why was his 2+2=4 case so weak?”

I don't know if you understand the full scope of what happened over the past couple weeks. The broad outline is this: Back in 2019, one of Comey's attorneys was investigated as part of another case that was closed in 2020. The Justice Department seized a bunch of evidence in this attorney's possession and had it stored on DVDs. The proper way to obtain this evidence would have been for Halligan to obtain a search warrant with the proper scope delineated and have the material reviewed by a court-appointed special master to remove anything that was privileged or attorney work product. Instead she just looked at all of it and used some of it as part of her case to the Grand Jury.

This is itself evidence of either incompetence or malevolence, but I'm not going to belabor the point or argue about it because these are honestly forgivable offenses, at least for someone who is wholly inexperienced in criminal law. Regardless, this was a problem for the prosecution, because if she presented any privileged information or attorney work product to the grand jury it would be grounds for dismissing the indictment, and the possibility that she even viewed such information herself would be grounds for removing her from the case (though I doubt the defense would ask for that). The defense requested that the court take the unusual step of releasing the grand jury information to them so that they could review it and determine if they had grounds for dismissal. A court granted that request, and while Halligan did not present anything privileged to the grand jury, what transpired was much worse.

The only witness who testified was an FBI agent who had no personal knowledge of what he was testifying to but had heard things from other agents. Hearsay testimony is allowed in grand jury proceedings, but it's inadmissible at trial, and it says a lot that she couldn't get the agents with first-hand knowledge to testify. The real shocker though was the ending phase, when she was giving the jurors instructions on how to proceed. She made the following two averments:

  • In response to a question from a juror about the facts of the case, she said something to the effect that if Comey had a satisfactory answer then he could testify at trial and the jury could choose to believe him or not. She implied that a jury could draw a negative inference from the defendant's failure to testify, but more importantly, she implied that such a question would shift the burden of proof to the defendant.

  • She told the grand jury that they could assume the prosecution would present more evidence at trial. In other words, you can base your decision to indict on theoretical evidence that we might have at the time of trial.

It's been fifteen years since I graduated from law school, and I've seen a lot of incredibly stupid shit in that time. While I can't say that this is necessarily worse than anything I've witnessed, I can confidently say that I haven't seen anyone do anything remotely this bad and not get fired immediately. It certainly presents a logical conundrum for people such as yourself, because there are only three possibilities here:

  1. She's incompetent to the degree that she doesn't understand the most elementary concepts of the US criminal justice system.

  2. Her case is so weak she felt the need to lie about the law to obtain an indictment. An indictment.

  3. She's so morally bankrupt that she would intentionally lie to a grand jury regardless of the strength of her case to ensure the maximum possibility of obtaining an indictment.

And of course some combination of the three. What does not exist is this fantasy land where the case against Comey is strong, Halligan is a competent attorney who scrupulously adheres to the canons of ethics, and anyone who thinks otherwise is a crypto-Democrat trying to distract the country from how low prices are getting. In a world where Trump, Bondi, et al. were rational, they would, regardless of what they thought of the opinion, at least hedged their losses by accepting the decision and allowing the court to appoint a real US Attorney, at least while the case was under appeal. Based on my own knowledge of how they operate, I would expect them to do nothing.

But no, showing that their idiocy knows no bounds, they have somehow found an option that's even worse. After the decision disqualifying Halligan was handed down, attorneys were instructed to stop signing her name on court filings and to use the name of the First Assistant instead. That guidance lasted about an hour before it was superseded by new guidance that they were to continue to use Halligan's name. This is an administration that is so committed to law and order that they are willing to take legally dubious measures to deploy the National Guard to "Democrat cities" because of "out of control crime". Yet he is unusually willing to risk every ongoing Federal prosecution between Virginia Beach and Washington, DC. If I'm a defense attorney I'm licking my chops right now over the prospect that any motion I file while this circus continues will effectively be unopposed. If the Eastern District courts have any sense whatsoever they'll make it clear that any pleadings that come in with her name on them will be rejected, and maybe the administration will get the message. But I wouldn't bet on it.

So…why do you think Trump’s the one saying “4”?

So United States attorneys work for the Executive Branch and are supposed to be selected by the AG.

Clause (d) looks like it's just there to let courts do something to keep the district courts functioning in the case of political paralysis.

If the legislature actually wanted to strip the executive of its ability to make temporary appointments then they would have at least used "shall appoint a United States attorney" instead of "may".

Also this text has existed since at least 1986 and Lindsey Halligan is the first one a court has attempted to remove. I'm fairly sure it's not the first time there's been a second temporary appointment.

Combine that with the fact that the Eastern Virginia legal establishment strongly wants to stop these prosecutions and I think it's likely that this judge is purposefully misinterpreting the law.

On the "judges get to do what they want, actual justice gets to suck it" front and related to the thread you dislike below, a Hennepin County judge overturned a jury's verdict in one of the Somali fraud cases. The judge doesn't seem to have released any information beyond the overturn and acquittal, here's news agency commentary:

Defense attorney Joe Tamburino, who is not affiliated with the case, reviewed the decision and analyzed it for KARE 11 News. He says Judge West ruled that the state's case "relied heavily on circumstantial evidence," and that she believed the state didn't rule out other "reasonable inferences."

To my non-lawyery ear this sounds a lot like "vibes" and the jury should've known better nudge nudge wink wink.

Oh, that sounds pretty spicy.

I was able to get at the judge’s order by following these instructions. It appears the prosecution did a great job convicting the defendant’s brother. That might be good enough for some people, but it’s apparently not sufficient under MN law.

As I understand it, though, because the case can be appealed, the state gets another shot at proving it.

annnnnnnnd Rov_Scam beat me to it.

I was able to get at the judge’s order by following these instructions.

Irritating. When they said the attorney reviewed it for them I assumed it wasn't a (complicated but possible to obtain) public document.

As I understand it, though, because the case can be appealed, the state gets another shot at proving it.

While this is one of the few times a state can appeal an acquittal, appeals primarily review mistakes of law. The state does not get a do-over unless they can successfully persuade the appeals court about that first. I think Rov_Scam is being far too deferential to the judge, here -- there's a lot of judicial 'I could imagine alternative explanations' in that order -- but the standard to retry is so high I would be very surprised if they get a second go.

The judge doesn't seem to have released any information beyond the overturn and acquittal

Except a 55 page order that outlines the facts of the case in excruciating detail, accompanied by the relevant analysis. There's no way to link to the order, but you can find it by searching https://publicaccess.courts.state.mn.us/ for Case No. 27-CR-24-13734. The gist of the opinion is that the prosecution did a very good job of proving that the defendant's brother was committing fraud through a home-health entity that the defendant owned. The brother was managing the business and hired a consultant who produced documents that were submitted to Medicaid showing inflated hours for legitimate clients as well as hours billed to fictitious clients. The issue was that none of the witnesses with direct knowledge of the fraud were able to implicate the defendant. Most had never met him at all, and the few who had testified that they only met him a couple times and just made small talk. There wasn't even any evidence that he had any direct involvement in the management of the company.

The circumstances that the jury convicted on were that he was the chartered owner of the company, that he received substantial cash payments from the company, and was in possession of a company debit card. There were also a few checks with his purported signature, though the signatures are inconsistent and he was out of town on the dates that some of them were signed in Minneapolis, so it's an open question which ones are genuine. His signature also appears on the padded Medicaid submissions, but the consultant testified that she forged his signature at his brother's direction. I quote the standard in a comment below, but the gist of it is that if a case relies entirely on circumstantial evidence, then the defendant's guilt has to be the only reasonable conclusion inferred from the circumstances. Since you can also reasonably infer that the defendant was an absentee owner who simply collected money from the business and didn't participate in its day to day affairs and neither knew of nor participated in the fraud his brother was perpetrating. The prosecution, therefore, didn't reach their burden and the conviction must be set aside. You may disagree with the reasoning, but its difficult to say that she let this guy go just because she felt sorry for Somalis.

Except a 55 page order that outlines the facts of the case in excruciating detail, accompanied by the relevant analysis.

Local news sites tend to be better about actually linking useful stuff but it's such a pain in the bahonkus to get to the actual case, maybe that's why they chose laziness instead.

The brother was managing the business and hired a consultant who produced documents that were submitted to Medicaid showing inflated hours for legitimate clients as well as hours billed to fictitious clients.

Having a sibling or two is a great way to avoid court, if you're a little bit clever.

I'm familiar with a case of identical triplets that, when one was called to court, a different one would go, be all "no that was my brother you've got the wrong guy," then the case would be dismissed/delayed/etc. IIRC they got to the point of doing fingerprint verifications as they entered the court to ensure they actually had the correct brother.

For a link, see this file

To my non-lawyery ear this sounds a lot like "vibes" and the jury should've known better nudge nudge wink wink.

I'm quite curious how this will shake out on appeal. In my state, setting aside the jury verdict after a finding of guilt is a one-way ticket to reversal. The judge can only act as the "13th juror" in the most rare of circumstances. It can't just be that the State's case was weak or relied on circumstantial evidence or "didn't rule out other reasonable inferences," but rather the evidence was non-existent.

Minnesota uses a two-step analysis laid out in State v. Silvernail:

Under the circumstantial-evidence standard, we apply a two-step analysis. State v. Ortega, 813 N.W.2d 86, 100 (Minn.2012). The first step is to identify the circumstances proved. State v. Andersen, 784 N.W.2d 320, 329 (Minn.2010). In identifying the circumstances proved, we defer “ ‘to the jury's acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.’ “ Id . (quoting State v. Stein, 776 N.W.2d 709, 718 (Minn.2010) (plurality opinion)). As with direct evidence, we “construe conflicting evidence in the light most favorable to the verdict and assume that the jury believed the State's witnesses and disbelieved the defense witnesses.” State v. Tscheu, 758 N.W.2d 849, 858 (Minn.2008). Stated differently, in determining the circumstances proved, we consider only those circumstances that are consistent with the verdict. State v. Hawes, 801 N.W.2d 659, 668–69 (Minn.2011). This is because the jury is in the best position to evaluate the credibility of the evidence even in cases based on circumstantial evidence. Id. at 670.

The second step is to “determine whether the circumstances proved are ‘consistent with guilt and inconsistent with any rational hypothesis except that of guilt.’ “ State v. Palmer, 803 N.W.2d 727, 733 (Minn.2011) (quoting Andersen, 784 N.W.2d at 330). We review the circumstantial evidence not as isolated facts, but as a whole. State v. Hurd, 819 N.W.2d 591, 599 (Minn.2012). We “ ‘examine independently the reasonableness of all inferences that might be drawn from the circumstances proved’; [including the] inferences consistent with a hypothesis other than guilt.” Andersen, 784 N.W.2d at 329 (quoting Stein, 776 N.W.2d at 716 (plurality opinion)). Under this second step, we must “determine whether the circumstances proved are ‘consistent with guilt and inconsistent with any rational hypothesis except that of guilt,’ not simply whether the inferences that point to guilt are reasonable.” Palmer, 803 N.W.2d at 733 (quoting Andersen, 784 N.W.2d at 330). We give “no deference to the fact finder's choice between reasonable inferences.” Andersen, 784 N.W.2d at 329–30 (citation omitted) (internal quotation marks omitted).

Under this second step, we must “determine whether the circumstances proved are ‘consistent with guilt and inconsistent with any rational hypothesis except that of guilt,’ not simply whether the inferences that point to guilt are reasonable.”

I suspect "rational" in that standard is doing some heavy lifting, because otherwise the second step reads "not only must the State prove guilt beyond a reasonable doubt, but must disprove every other theory as well (aside from aliens or Bigfoot)." That's a big hurdle depending on how strict "rational" is.

I also wonder, but don't care enough to research, how often that second step leads to vacating a conviction. All that quoted language sounds defense-friendly, but every case there (Silvernail, Palmer, Hurd, and Anderson) upheld the murder convictions at issue. It sounds particularly prone to vacating convictions in white collar crimes where a defendant claims they didn't know. Unless there are written declarations of "I know I am committing fraud by doing X," then saying "I didn't know, it was all confusing and overwhelming" could always be a rational hypothesis of the inferences.

I suspect "rational" in that standard is doing some heavy lifting, because otherwise the second step reads "not only must the State prove guilt beyond a reasonable doubt, but must disprove every other theory as well (aside from aliens or Bigfoot)." That's a big hurdle depending on how strict "rational" is.

That second part (disprove all other theories) is a common out less entrenched judges use quite often in minor cases (most judges in state courts get crappy assignments when they start, like in traffic misdemeanor rooms) so they can avoid being appealed following a bench trial. A real life example I know of goes like this: Cop pulls up to a scene where a car hit a traffic sign of some sort (i dont recall exactly). Man is drunkenly attempting to remove the sign from the front window. Cop has him do field sobriety tests, which he fails miserably. Guy is arrested and refuses to blow at the station. Not guilty, stated reason is that the state failed to prove that defendant actually drove the vehicle.

That second part (disprove all other theories) is a common out less entrenched judges use quite often in minor cases (most judges in state courts get crappy assignments when they start, like in traffic misdemeanor rooms) so they can avoid being appealed following a bench trial.

I agree, I've seen it myself. But there is a difference between applying it in a misdemeanor to avoid an annoying appeal vs. a murder or multimillion dollar fraud case.

stated reason is that the state failed to prove that defendant actually drove the vehicle.

It's kind of amazing police don't go postal on judges more often.

Because in subsequent interviews Comey has constructively admitted to submitting false testimony on multiple occasions. He frames it as working within the system, a "we knew where the evidence was we just needed a Judge's blessing to go get it" sort of situation. But what it boils down to is that he knowingly submitted false statements and/or fruit-of-the-poisonous-tree to secure warrants.

Specifically, we now know that wire-tapping of Trump associates on suspicion of Russian Collusion was secured under false pretenses, and that Comey knew this to be the case when he testified otherwise in September of 2020.

Because in subsequent interviews Comey has constructively admitted to submitting false testimony on multiple occasions.

That is absolutely true. It also has absolutely nothing whatsoever to do with whether or not the attorney that submitted his case to the grand jury for indictment was properly appointed.

People go absolutely bonkers on procedural rulings. It wasn't even dismissal with prejudice!

It also has absolutely nothing whatsoever to do with whether or not the attorney that submitted his case to the grand jury for indictment was properly appointed.

Or even on whether or not he is guilty on the charge he was indicted for, which is for lying to Congress about a leak. My understanding is that most of the alleged wrongdoing by Comey happened back in 2017 and the Trump administration had to scrape the bottom of the barrel for a charge where the statute of limitations had not expired. And that one was a squeaker - it looks like the administration doesn't get a do-over because the statue of limitations has already expired. I don't know the US position but in England not getting do-overs on minor procedural issues is a well-known risk of litigating close to the SoL deadline and judges are unsympathetic regardless of the political valence of the case.

This is the first thing which makes me, if not exactly sympathetic to Trump, then at least unsympathetic to Comey.

Criminal procedure exists for a reason. There are plenty of jobs in the world where you can do just fine by sometimes taking shortcuts instead of doing everything by the book. Criminal investigations is not one of them. If you find yourself lying to a judge so that they will bless you violating someones constitutional rights, or engaging in parallel construction, then you are the villain. If you can't do your job while keeping within the law, then at least be honest, quit your job, wear a batman mask and beat up suspects in the night, don't pretend to serve the law while breaking it.

Sure, Trump going after you is roughly orthogonal to you having acted in a criminal manner, and this very much does not scale to a systemic solution, but if your allegations are true then I would consider a conviction at least a happy accident, like a bolt of lightning striking a serial killer.

Because I think Trump is right. James Comey lied before Congress and he knew Russiagate was a sham.

Conservatives really need to learn that the corrupt swamp cannot be taken out with the corrupt swamp's own tools. Buy guns people. You aren't fixing things by voting and things will only get worse.

edit: since I forgot how feminized this place is and don't want to get accused of fed posting. Rawls was a moron, institutions are downstream of culture. Our culture is shot, institutions will continue to degrade. The people that will inherit what is left will be people that have high trust and cohesive cultures + birth rates + guns (security). If you really want to be double safe find one that already has parallel institutions, like education (religious communities) money (crypto?) etc.

  • -17

You're not going to get far with a consistent habit of booing the outgroup and clear consensus building. I note multiple previous warnings, so I'm going to extend a 3 day ban to make this one stick.

I have to ask, will it ever be considered "rational" to talk about living up to the ideals of the American Founding and watering the tree of liberty? I currently live in a state with my Attorney General elect thinks I and my children should die because we're breeding "little fascist". His top priority is emptying the prisons into my community to see this done. At what point does it become permissible to openly discuss your natural rights to self defense against the state?

I think whatever response you give here, you should give in sufficiently general terms that I can also give it to my lefty college buddies that think we're at the point of having to pick up guns against the Ice-Nazis.

At the very least, it's "we're not even close".

Within 24 hours of this post, two National Guard members were shot and killed in Washington DC, by a shooter that alleged targeted and ambushed them.

I'm willing to give another 24 hours from now before speculating on the motives of that shooter. The shooter has been capture and is expected to survive. I'll note, however, that nationally syndicated television did not wait to see whether the man was a gangbanger or schizophrenic before giving justifications for the shooters actions.

It's possible that Dilanian is fired in a week. Would you like to make a wager?

Because I'd wager that your lefty college buds can get all the justifications and friendly tongue-washing from broadly published news media that everyone treats with far more respect than it deserves; the wig-wong waggling here doesn't really matter.

Edit: I shouldn’t trust politicians. “conflicting reports”

No argument here about the media.

Nevertheless, on an individual level, you should endorse a logic on the threshold for armed conflict that cannot transparently justify both you and your opponents.

Surprisingly, no.

Trivially, there are levels of armed conflict that would be acceptable and even laudatory. If New Yorkers could accept self-defense or defense-of-others by innocents against illegitimate threat to life and/or limb, we'd be in a much better place. Just as trivially, there are levels of endorsement I can give that are hundreds of miles short of what is not just common but already mainstreamed to the point of being room temperature; endorsing Rittenhouse is not going to give any genuine sanction to Jay Jones.

These aren't without their risks. There are definitely progressives willing to hallucinate that the knife-waving meth addict who broke into someone's house at midnight tots wasn't gonna hurt nobody, and that the police officer considering a speeding ticket was a dire threat to life; there are people who were already drooling over the shooting the children of political opponents now and did respond to the Rittenhouse defense by doubling down. But those are concerns in the same sense that a schizophrenic legitimizing a murder because the radio waves in his teeth told him it was okay, and sometimes by the same biochemical pathways.

At a deeper level, the Litany of Tarski wins. If you're arguing game theory and utilitarianism, it's not just enough to believe that pacifism is the best behavior with the best outcomes. Most advocates aren't even willing or able to pretend.

As entertaining as watching fedposters like you fedpost is, it seems bad for the sites continued existence and vaunted neutrality to enable and encourage it.

"Viewpoint neutrality" does, in theory, include permitting the viewpoint "we should massacre my enemies" (from either side). Forbidding that viewpoint is a concession to legal reality and arguably utility, not upholding neutrality.

"fedposting is bad, actually" shouldn't be a hot take

Motte:

fedposting is bad, actually

Bailey:

it seems bad for the sites [...] vaunted neutrality to enable and encourage [fedposting].

The bailey is something I feel morally obligated to oppose wherever I see it, i.e. the redefinition of terms to legitimate a preferred policy without acknowledging real tradeoffs. This is catastrophically dangerous because it leads to important principles getting hollowed out and losing their actual meaning - see "free speech doesn't include hate speech".

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.

So, defend your claim. Or retract it. Don't try to pull a fast one by retreating to a motte.

(The reason I said "arguably utility" is because it can be useful for people like me to talk people out of starting a Boogaloo, and that can't happen if the other side is deterred from speaking.)

Depends if the government is conspiring to murder you or not.

I currently live in a state with my Attorney General elect thinks I and my children should die because we're breeding "little fascist". His top priority is emptying the prisons into my community to see this done.

Please don't share more info than is wise, but out of curiosity, why not vacate that state? There are states with moderately sane AGs (and overall saner justice systems that try to lock up criminals), minimal gun laws, and lower taxes. And I don't mean places that many people dread like North Dakota or Wyoming, although the latter is a very pretty state in places and no one is going to put their nose in your business.

Trivially, there are pretty significant costs to flight.

More seriously, there's very little guarantee it would work. I'll point, again, to KendricTonn getting a Kirk Smirk in Ohio meatspace, or to my own experiences over half-a-decade ago. Crusading AGs from Blue States have brought the long arm of the law against people who did try to escape, or (as people trying to publish CAD files from Texas have found out) even if they were never in New Jersey to begin with. WhiningCoil cares a lot more about trans stuff than I do, but Wyoming specifically isn't exactly matching with his goals there despite a legislative and regulatory environment that specifically ordered or legislated it.

And then you get the federal government decides that they're going to have a new interpretation of a law and want a nice high-profile grab, you get your skull ventilated at 6AM, the cops doing that put more effort into documenting your soon-to-be-widow's morning piss than the pre-dawn raid, and no one in office in Arkansas cares. The supposed libertarians otherwise traumatized by the presence of masks for law enforcement they don't like will suddenly find crickets, the people who would burn down buildings over government overreach will suddenly decide to roleplay owls with a 'who, who'.

Trivially, there are pretty significant costs to flight.

And I'm not downplaying them. His job, his wife's job if she has one, schooling for the kid(s), church, overall support structure if family is nearby... those are all significant considerations and make moving complex. However, if the alternative is seriously weighing armed rebellion, then perhaps relocation is a more realistic first step.

As to your other points, I don't disagree. There is no perfect escape at this point. To add to your examples, in Arizona, Daniel Shaver got killed by a cop while crawling along the ground, and there certainly wasn't any rioting when the cop was acquitted of murder. And that's Arizona, so what does that say about supposedly pro-freedom states? Even so, there are an awful lot of states I'd pick before VA or NJ.

People, by revealed preference, seem to like living in the northern Rockies. But even neighboring North Carolina is a very pleasant GOP run state.

Because it's a non-argument: or rather, you're forgoing your opportunity to make an argument with an appeal to violence. Honestly, advocating others to fedpost on your behalf on social media is a cowardly and self-defeating act. A real chad just goes out and does things, you know?

I would imagine on The Motte you could make an effort post about what people would consider a morally acceptable line for either starting revolution or committing political assassinations in a completely abstract sense. Though that does invite people to come up with "hypothetical" scenarios that are thinly-veiled parallels to actual American events.

I don't see where "rationality" even comes into the picture here. If we were modding people for being "irrational", we would have far fewer participants left.

As it stands, your comment is a non-sequitur. To assess the rationality of armed resistance to what you perceive as a hostile state is not in my remit as a moderator. Questions of rationality don't even come into the warning/tempban here. He was building consensus, being a culture warrior, and so on and so forth. Fedposting isn't in the sidebar rules last time I checked, but we frown on it because:

  1. It goes against the culture and ethos of this forum. Doesn't get much more heated than that.

  2. Zorba prefers the FBI don't kick his door down. We're all here at his behest, and on his sufferance.

You want to discuss your to natural rights to defend yourself against a state? Buddy, that's half of all we talk about over here. But if things have gotten so bad across the pond that you feel the need to form a militia and shoot the AG, then take it to Facebook. And if everyone else feels that way, I think moderation guidelines will be a less than pressing concern during a civil war.

And if everyone else feels that way, I think moderation guidelines will be a less than pressing concern during a civil war.

Yeah, I'll admit that a good chunk of why I'm not protesting too loudly is because the potential circumstances where I'd be willing to infohazard-dump are basically a strict subset of the potential circumstances wherein theMotte would be imminently doomed (along with, in many cases, the entire Internet) - and hence, wherein permabanning me would be nearly meaningless.

And if everyone else feels that way, I think moderation guidelines will be a less than pressing concern during a civil war.

10/10.

Can we put this on the sidebar?

I don't see where "rationality" even comes into the picture here. If we were modding people for being "irrational", we would have far fewer participants left.

Aren't we a rationalist forum? I've always thought so, at least; a part of the rationalist diaspora, if a few steps removed from LessWrong/Overcoming Bias.

Not really, and IMO the old-guard movement is a shell of itself. I certainly wouldn't count any of Scott's other commentariat-zones as 'rationalist,' either.

I wish, I really do. Unfortunately, this place is best described as rationalist-adjacent, which is the next best thing.

LW? The ur-rats.

Scott himself? Of course.

SSC/ACX and the subreddit? Mostly the case.

Us? The blood is a bit diluted.

Of course, this is my personal opinion, but IMO, a real "rationalist" forum includes more explicit discussions of the tenets of rationality itself, which we really don't do very often. We have high standards for discourse, we have people using Bayesian arithmetic when they feel like it, but we are a more general interest kinda place. And that's fine!

Irrespective of whether it's "rational", is it really a conversation we need or want here? I'm with @FiveHourMarathon below regarding how these discussions always wind up going. I don't even think that there aren't interesting discussions to be had about how a popular uprising in the US would proceed, but the burden at this point should really be with those who want to talk about it to lead with something novel rather than another instance of "my chad tribesmen will beat the shit out of your effeminate wimps, if only the sheeple finally wake up and develop classtribal counsciousness".

"my chad tribesmen will beat the shit out of your effeminate wimps, if only the sheeple finally wake up and develop classtribal counsciousness"

Maybe I’m unusual, but I’m pretty doomer-pilled about the right’s prospects in a civil war.

Enh, 50/50.

I think they hold clear dominance in fieldcraft, and modern infrastructure is in fact so perilously fragile that a small group of dedicated individuals can have truly outsized effects. On the other hand, team red sucks at organizing in groups.

The biggest deterrent against civil war is that a vast majority of people on both political aisles are Comfortable(tm), or at least, comfortable enough that a civil war would have deleterious effects to their present quality of life and material well-being. They may not be happy or even content, but there's a gulf between that and everything else.

Also, there's nothing sadder than the yes-chad who got shot first getting less than half-hour's engagement on social media before everyone else shrugs and moves on. Nobody wants to be the one who starts a revolution if it doesn't start a revolution.

There is no winning for anyone if it comes to that. Just violence until both sides are exhausted, or one is annihilated. I can't even speak with confidence which side it would be. But funnily enough, I always remember a line out of a trashy fantasy novel I read once.

"We don't fight to win. We fight so that we don't lose."

The prevailing wisdom here cannot be "Listen, it's just 'rude' not to walk into the ovens. It would get us into trouble with the feds if we talked too openly about non-compliance with their pogroms". Are we really so committed to ensuring everyone cannot even imagine a world where they aren't forfeiting their lives for nothing?

Why does there need to be "prevailing wisdom" here on this topic at all? You treat it as a given that we can't just ignore the topic, as something that can't be discussed while maintaining the spirit and purpose of the forum, and perhaps even mean to suggest that enforcing non-discussion is tantamount to complicity with your enemies. The exact same approach has been tried on the other side, with popular glosses like "the personal is political", "silence is violence" and what-not; and look where the discussion norms built around those memes got them.

Why does there need to be "prevailing wisdom" here on this topic at all?

I'm not saying what the prevailing wisdom should be, I'm saying what it should not be.

You treat it as a given that we can't just ignore the topic, as something that can't be discussed while maintaining the spirit and purpose of the forum, and perhaps even mean to suggest that enforcing non-discussion is tantamount to complicity with your enemies. The exact same approach has been tried on the other side, with popular glosses like "the personal is political", "silence is violence" and what-not; and look where the discussion norms built around those memes got them.

This is wrong and bad faith and borders on intellectual malpractice. "Silence is violence" as deployed by the left is about compelled speech. I'm asking for free speech, non censorship. Nobody has to have an opinion about their own genocide. But I'm asking for the freedom to discuss it, as well as extra-Democratic ways to survive.

And this is exactly what people mean when they say this place, and it's rules, are too "feminized". The only possibility that can be imagined is consensus. If you disagree, you are trying to change the consensus to a different consensus. Because a consensus must exist. There must be a norm that everyone conforms to. There cannot simply be endless discussion.

So, full disclosure, I found @remzem's post obnoxious and performative, but I would not have modded him for it, even though it did get several reports. @self_made_human decided otherwise, and while I would have decided differently, I don't think he's necessarily wrong. (Yes, this does in fact mean how you do or do not get modded sometimes depends on which mod decides to take action.)

I will attempt to answer your questions directly.

Are you allowed to discuss resisting the state? Yes, you can discuss it. People discuss that all the time here! (And that's why I personally thought @remzem's post was borderline but within bounds.)

Talking specifically about people you think should be killed is not within bounds. Talking about plans to do violence is not within bounds (and would be pretty fucking stupid if you're serious).

No, we are not saying it would be "rude" to talk about not walking into ovens (really, though? Come on.) Or that you can't talk openly about "non-compliance."

But what is it, exactly, that you want to say that you think you are not allowed to say? That you hate Jay Jones and hope someone shoots him? Well, you can say you hate him, but no, you can't openly wish death on him. (Yes, his texts would have gotten him banned on the Motte.) If you want to be more indirect about it ("I really think some of our state leadership should water the tree of liberty"), we are not stupid and we're still going to tell you to knock off the fedposting. Both because, yes, it's easy for you to whine about what you're not allowed to say when you're not the one who would get visited by the FBI, and because as several others have pointed out, most people here are not really interested in reading dick-fondling threads about what people will do to their enemies when the Boogooloo happens. If that's what you're into, there are guys on Twitter whose entire niche is jerking themselves off over such fantasies, including our own Motte alum Kulak. If you want Kulak-posting, go give him a follow.

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"Silence is violence" is absolutely deployed in defense of "free speech" too - it's a mainstay in protests where students disrupt unrelated university functions to inject progressive talking points of the day, and in those cases is taken to mean that being forced to stay silent (on the talking points, at university) is tantamount to being forced to be complicit in violence. Essentially, you and they are conflating the "I have the right to be heard" notion of free speech and the "I have the right to speak wherever and whenever I want" notion; while neither can be implemented perfectly, we can get a lot closer to something like a stable equilibrium with the former.

Also, from where do you get the idea that there is a consensus here, and anyone is trying to force some other consensus? I am under the impression that, weighted by posting frequency or upvotes, this place leans mildly towards the at least boogaloo-sympathetic. I do not think that a right-wing uprising in the US would win, and I am generally pro-chaos so I would want to see it happen! Yet, I do not want it to be discussed here, just like I don't want my approximation algorithms lecture to be disrupted by people yelling about Palestine (even though I am inclined to agree with them).

In the post you replied to, self_made_human modded remzem for consensus-building and boo-outgroup, not for advocating violence. Did you mean to reply to Amadan's post?

Hey @Amadan (and the other mods, if necessary), can we actually get a ruling on the "advice to, in the event of state failure, do things that are illegal under current law" genre? I can imagine some people saying that it's incitement to crime, but others saying that in the event of state failure, the present laws will have ceased to mean anything and thus the actions wouldn't really be crime anymore in the circumstance in which they're being recommended.

(The post I'm replying to probably doesn't qualify as being in that genre, as AIUI shooting bandits attempting to loot you is pretty legal in most of the 'States. But there are certainly adjacent positions which would qualify.)

I want to register that I find call to violence posts generally boring. It inevitably leads to internet tough guy, "my team/tribe/sensei/dad could beat up yours" nonsense posting, and generally just represents a total breakdown of interesting conversation.

"how feminized this place is" - LOL. @remzem, Internet Tough Guy never impresses anyone. Do you think anyone actually believes you're the very model of a modern masculinity?

The "ruling" is that fedposting is against the rules because it could get Zorba in legal trouble, and actually advocating violence is against the rules because it's rude. We have all these feminized rules about being civil and shit.

Can you discuss what you'd do "hypothetically" in the event of the Happening? Depends. Advice about how to stock up on ammo and form your own militia - probably okay. Talking about how you're going to murder all the people you hate? Not okay.

Government by social media strikes again.

The deliverable that Lindsey Halligan was tasked with producing was not, "putting Comey in jail". It was, "generate headlins about Comey going to jail". In that light, she did about as well as she could given the circumstances. You see the same thing with Hegseth posting about court-martialling Mark Kelly.

I'm amused that progressive copium that "nobody competent will work with these assholes" is turning out not to be cope.

He did (attempt to) appoint an insurance lawyer to be an AUSA. Good grief.

You're giving her too much credit. If you want to see what an insurance case actually looks like read this. This was not the kind of thing Halligan was doing. She was in "insurance defense", which is basic civil defense. It's just called that because 99% of civil tort cases are covered by insurance; the insureds don't really care much about the suit because the settlement is covered, and the insurance companies are the ones who hire the attorneys and call most of the shots. So if you're injured in an auto accident and decide to sue, the guy who hits you's insurance company will be hiring the attorney and covering the settlement. Ditto if you slip in the parking lot of the grocery store and break your arm.

This is silly. Trump has many competent operatives. They are here outnumbered by DC saboteurs.

He does. Lindsay Halligan is not among them.

Paranoiaposting on this forum is funny, but I do wish more here held at least some pretense that they weren't.

It does help when you follow up with, “and if they do, we’ll make them suffer”.

One of the more politically enlightening experiences I had was being on a committee with a socialist who argued strenuously against the secret ballot because “people need to know there are consequences for how they vote”.

It does help when you follow up with, “and if they do, we’ll make them suffer”.

And it's indicative of something that while law firms bent the knee and universities got on their knees earlier in the year when the accusations were around anti-semitism, we're still seeing issues here.

This is important data about the Vibe Shift. Is the belief that MAGA or MAGA-adjacent leaders will have enough power to punish in the future weaker than expected? Is there an expectation that Dems will be back in office and will punish MAGA prosecutors?

Something I'm curious about is the dynamic within state level governments relative to federal for employees. Historically, AUSA is way better than local ADA or state AG's office. But right now, I'm aware of a lot of good federal lawyers looking for state level work because the federal government is unstable.

The very randomness of the Trump approach is the most effective way to rebalance the government away from the feds and towards the states.

It does help when you follow up with, “and if they do, we’ll make them suffer”.

While I am sure that the woke left punishes defectors who cooperate with Trump, it is team MAGA which has perfected using administrative decisions to go after the people who were in the past on the wrong side. I vaguely recall law firms (who by design are mercenary) who had represented people who were litigating against Trump finding themselves without security clearance at the start of the year (or at least having to do an extraordinary amount of ass-kissing to keep them).

Political retaliation is bad no matter who does it. But the way I recall it, when Musk bought Twitter, the reaction of the Biden admin was not to try their very best to burn Tesla and SpaceX to the ground. By contrast, if there was a billionaire who was as firmly committed to opposing Trump as Musk was opposed to the Democrats, I would totally expect Trump to do his best to destroy any companies where that billionaire holds significant stock.

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This just seems crazy. Obama retaliated against law firms. Law firms were attacked for filing 2020 election cases. Musk was attacked (eg FCC cancelled grants re Starlink even though Starlink by far was better than other options not cancelled or the DOJ tried to claim worker discrimination for not hiring foreigners even though they were obliged not to do so) by Biden shortly after buying Twitter.

So I think your facts are just wrong.

Technically the FCC rejection of Starlink's rural broadband subsidy application was after Musk made the offer to buy Twitter, but before the transaction took place.

And the Biden grudge against Musk was at least a year older still. Biden holding his "Electric Vehicle Summit" but then not inviting the manufacturer of a supermajority of US EVs because they weren't unionized was ... well, the phrase "crossing the Rubicon" does get overused, but that NY Post article helpfully includes the photos of Biden literally test-driving an electric Rubicon, so who am I to argue with dramatic irony?

Political retaliation is bad no matter who does it.

I definitely agree in the case of political retaliation without legitimate provocation. With respect to political retaliation which does have legitimate provocation, I would say it's bad in the same sense that war is bad. Yes, it's expensive and destructive but sometimes it's the best choice.

There's been a problem in the last few years, with abusive lawfare-style tactics on the part of certain prosecuting authorities. How does one handle such attacks? By gently entreating the attackers to stop behaving unfairly?

it is team MAGA which has perfected using administrative decisions to go after the people who were in the past on the wrong side.

The question I have about this is whether this strategy was used during the first Trump administration.

By contrast, if there was a billionaire who was as firmly committed to opposing Trump as Musk was opposed to the Democrats, I would totally expect Trump to do his best to destroy any companies where that billionaire holds significant stock.

Has Trump abused the power of the federal government to "do his best to destroy" CNN?

But the way I recall it, when Musk bought Twitter, the reaction of the Biden admin was not to try their very best to burn Tesla and SpaceX to the ground.

For that very specific example, the Biden FCC did in fact cut a major SpaceX (StarLink) contract/grant program on clearly spurious grounds (see FCC v. Starlink here for further details), the Biden EEOC brought questionable claims of anti-immigrant discrimination against SpaceX directly. And those are just the ones with Biden admin people directly signing the paper.

It does help when you follow up with, “and if they do, we’ll make them suffer”.

This is a "thing," but is it does it outweigh encouragement of people to keep their jobs, rather than create openings to be replaced?

One of the more politically enlightening experiences I had was being on a committee with a socialist who argued strenuously against the secret ballot because “people need to know there are consequences for how they vote”.

Story? What kind of committee? What kind of socialist? What consequence did they want?

The story is a bit doxxy. It was local politics, he was a Labour activist and leader of the militant wing of the committee who were in the middle of a hostile takeover. He did not have ‘I am a socialist’ tattooed on his forehead but he did have a desk full of books on Marx and biographies of 20th century socialists - I knew him and believe me he was socialist.

The consequence he wanted in this particular case was extensive public shaming. It worked too - lots of people were unhappy with the new direction but absolutely refused to say so in public.

Were they an entryist or just an asshole?

Bit of both? We got in three or four entryists at the same time and they staged a coup by getting quorum and instituting DEI minority seats making up a majority of the voting positions.

Bummer! Thanks for sharing.

Corvos probably knows more than me, but there is an extensive history of arguments about whether internal elections in left groups, and particularly in militant unions, should be by secret ballot. Some of it is good-faith arguments the scope of the principle that people voting in a representative capacity don't get a secret ballot because they are accountable to the people they are representing. Some of it is the hard left favoring public votes as a loyalty oath with democratic-sounding characteristics (cf elections in people's democracies).

The announcement that Labour MPs representing London constituencies would not get a secret ballot in the 2000 Mayoral selection was the point at which it became obvious to people paying attention that the selection was rigged and that Ken Livingstone would run as, and probably win as, an independent.

I think that there is a vast gulf between people voting as representatives and people voting on the base.

Secret elections are obviously better at establishing common knowledge of what the base actually wants.

But for a representative, it is more important that they be accountable to their electorate. If 3/4th of the senate vote for something deeply unpopular, you do not want every senator to be able to tell his voters "no, I totally voted against this. It was all the other lying senators to vote for it."

For important personnel decisions (where there may be a lot of pressure to vote a particular way), the fix would be not to have representatives vote but just let the base vote. In secret, obviously.

Very much agreed - for instance all legislators vote publicly on legislation and when electing officers such as the Speaker. But there are a lot of corner cases when it comes to internal party elections. One particularly important one is MPs electing their party leaders - which in Parliamentary democracies will usually be a de facto election of a Prime Minister or selection of a candidate Prime Minister. Almost all parties in almost all functioning Parliamentary democracies have decided to give MPs a secret ballot in the internal vote. (UK parties have a range of processes for combining the views of MPs and grassroots members when electing their leaders). Obviously MPs are expected to vote non-secretly for their party's preferred candidate for PM in the external vote.

This is why the London Labour thing was controversial - Blair made the MP ballot public even though analogous internal elections usually give MPs a secret ballot.

Something similar is supposed to happen in Congressional leadership elections in the US. The House majority caucus elects the Speaker-designate by secret ballot, and then all caucus members should vote for the chosen candidate in the recorded House vote for Speaker

Classic banana republic tier shit. Why even pretend to have a vote if you're going to use social pressure tactics. Disgusting.

Funny. I’d have thought you’d be all about accountability for government.

When you’re electing representatives, it’s nice to know their actual voting record. That’s why Congress does roll-call voting.

A similar disqualification happened in the central district for California, bringing the total to 4.

Team R has a majority in the senate. They should be running every single US Attorney through confirmation instead of stepping on rakes with this fighting over acting/interim US Attorneys. I understand the admin's "just do things" approach, but getting hung up on procedural stuff like this is amateur hour.

At least one such GOP Senator has said he will not vote to bypass the blue-slip process that has been custom for a century or so.

Even the 60-vote Obama Senate respected it, rather than allowing Obama to put a Keith Ellison type as USA in Texas.

This is all political. Competence has nothing to do with it. There is no threshold at which procedural pretexts stop being invented. It’s as if you said, “Muhammad Ali should be fighting, not getting punched. Amateur hour!”

This is all political. Competence has nothing to do with it. There is no threshold at which procedural pretexts stop being invented.

Getting US Attorneys confirmed by the Senate is presidentin' 101. This isn't some new, dazzling pretext--as Nybbler points out, this problem even hit the Jack Smith prosecutions against Trump.

"why are the people who perpetually go out of their way to step on rakes, stepping on all these rakes??? I voted for President 'i love stepping on rakes to own the libs' so he could get shit done, not step on rakes!"

Elect clowns, expect a circus

Or in this case, elect a reality TV star, expect amusing antics

This is like a form of gaslighting, where the actions of Trump’s enemies are reconfigured as Trump’s fault. No, these things don’t happen haphazardly, people worked hard to make them happen.

How is failing to confirm someone such that they have the legal authority to prosecute people when you control ALL THREE branches of government not your fault?

How is everyone in the DA's office deciding they would rather literally get fired than sign off on it the fault of "Trump's enemies"? Do you think the entire DA office is staffed with Democrat sleeper agents?

From other comments in this thread:

In this case, Siebert was the lawfully appointed U.S. Attorney for Virginia. But he wouldn’t sign the indictment. Bondi fired and replaced him with Halligan, who did. Since that skipped the confirmation process, though, it ran into the same problem which got Smith.

Typically, a line prosecutor would be in charge of the case and sign the indictment, but these indictments were so incompetently handled and obviously politically motivated that nobody else in the office was willing to sign them. Hell, her predecessor got fired for refusing to sign. So the only person who signed the indictment had as much authority to do so as you or I do, so they aren't valid.

"Wahhh it's the Dems fault"

Literally every administration has to contend with the opposing party making it difficult to enact their agenda. Trump has been gifted with a majority of all three branches greater than most administrations ever get. And Republicans have opted for a line where, rather than the legislative branch approving things, the executive simply creates its own mandates while the legislative passively allows him to.

What you are describing is the inadequacy of Republicans in Congress, which is the exact failure of leadership that created the opportunity for Trump’s election in the first place.

Yes, but that's still Trump's problem. Them not doing their job does not grant Trump authority to do it for them. Which is why a big part of every President's job is to get enough of Congress aligned with him, or vice versa. Trump is trying to skip that step and do everything through the executive, which results in a circus in the courts.

The exact mirroring is eerie, though. Some of Jack Smith's cases against Trump got dismissed because his appointment was considered unlawful by the District Judge (and Clarence Thomas).

It did ultimately lead to the clusterfuck that's happening now, though. If Bondi could have appointed a special counsel to investigate Trump's enemies, she likely would have done so. But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence. There is effectively no one in charge of four offices at this point, though I can imagine that the career supervisors there will keep things running in the meantime, at least as far as routine matters are concerned.

There is effectively no one in charge of four offices at this point

Aren't courts supposed to appoint US attorneys if the AG's choices can't secure Senate confirmation?

There is a real question about separation of powers where the court appoints an executive officer.

There's a real question about separation of powers if a President tries to appoint principal officers without the consent of the Senate.

Or if there's no one to actually run the US Attorney's office.

There's no way around the dysfunction. Congress tried to craft a compromise (muddle) solution.

https://reason.com/volokh/2025/07/26/appointment-of-interim-u-s-attorneys/

That is a shockingly bad post by Calabresi. The Constitution explicitly allows Congress to delegate the appointment of inferior officers to the Courts. Calabresi's response is that they can't have meant it because the Constitution sets up a unitary executive, and the clause allowing Congress to delegate appointment of inferior officers to the Courts can only apply to Court clerks and suchlike. [I am not a historian and don't know the reason for the clause, but my guess is that the framers expected the local district judge to be the highest federal official in the sticks, and therefore best-placed to make local interim appointments before a message could get to Washington]

But the only reason why you might think the Constitution sets up a unitary executive is the text of the Constitution and, critically, the Appointments Clause. You can't just say "if I ignore this sub-clause, the vibes of the rest of the text imply X. Because X, this sub-clause should be ignored."

I'm not sure appeals to original intent help here - the framers would have been horrified at the idea of a corps of full-time professional civilian Federal prosecutors, because they didn't want the Federal government to be creating enough civilian criminal law to support one. You should look at the words they wrote, not the vibes here. And the words are clear.

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I don't buy that argument. The statutory text makes clear that after the 120 day term expires (c2), then (d) the district court appoints until the vacancy is filled. What would the point of an expiration be if the AG just gets to repeatedly re-fill it? The entire (c)(2) provision would be surplussage.

That said, maybe the Supreme Court looks at 28USC§546 and decides the way Prof Calabresi argues here. I just don't see it.

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In theory, yes. In theory, there's also someone already in the office who would automatically become Acting US Attorney in the event of a vacancy without an appointment. In practice, both of these are the same person—a career prosecutor who anticipates outlasting the current administration and would prefer to prosecute boring criminal cases rather than participate in Trump's revenge tour. So what happens is the Administration appeals the court ruling and fires whoever the court appoints, or tries to use some backdoor shenanigans to appoint their preferred candidate to a position where she'd automatically take over as US Attorney upon her own disqualification, creating confusing arguments where one holds multiple titles at once. At least this is how it's playing out in New Jersey. I'd offer a more detailed explanation but I'm not entirely sure I understand Pam Bondi's reasoning so I'll hold off.

The upshot here, though, is that the Trump Administration is going to continue to insist that Halligan is the US Attorney for the EDV, despite a court ruling saying she isn't. Imagine if you got an email from your company saying that your boss was no longer employed there, but he continued to show up and was assigning your team work that would cost the company a lot of money. When you email top leadership they tell you he doesn't work there anymore, but when you email his immediate supervisor you're told that he does and just continue the way things have always been. How much work do you think gets done in that situation? How long can the company continue to operate amid the uncertainty? How efficient will any work be? Now assume that this guy is also entirely unqualified for the job and was hired for the position because he was his boss's college roommate and he occasionally makes bizarre decisions that no one in the company can justify. You have absolutely no idea what's going on. What do you think morale is like? This is basically what's going on in New Jersey right now, where the entire office isn't doing anything because nobody knows who has the authority to do anything.

Imagine if you got an email from your company saying that your boss was no longer employed there

Getting an email from some judge saying that your boss is no longer employed at your company would be quite unusual though; "your company" in this case is the executive branch (c'est Trump!), no?

Within Rov's analogy, "your company" is the US gov as a whole (with Trump being the "immediate supervisor").

And it was a really shitty analogy. Besides there not really being a company structured like the federal government, in this case there was a department lead that said “you are still employed” and a junior person in a different department said “nope you are fired.”

Now maybe Rov made an innocent mistake but I think he is trying to stack the deck because of his political leaning.

Companies that are structured as distinct and separate branches with no overall leader would be... quite unusual. I can't think of any, and if I could I would think it would be extremely unusual for a minor minion of one of the branches to be able to overrule the leader of a different "coequal" one. (and @pusher_robot, I'm pretty sure the DoJ already has their own HR?)

A better analogy then would be that the SVP of your division says your boss is still employed, but a SVP of a different division which contains HR says he's not

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But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence.

Could you please explain this?

I think the OP does a pretty good job of explaining Trump's interpretation of the law and why the court didn't buy it. As for the second part, there are four US Attorney's offices operating without a US Attorney for the time being. While the district courts can appoint a US Attorney, I don't know how long this will take, and I don't know what's going to happen if they appoint someone the administration doesn't approve of. Right now it's currently a matter of dispute who is, in fact, the US Attorney, if anyone even holds the position at all, and Federal prosecutions there have accordingly ground to a halt.

Judge Cannon ruled that Jack Smith had no statutory power to bring the classified documents case. Thus, Bondi couldn’t just spawn a Special Counsel to manage the lawsuits Trump wanted. She had to slot them into an existing office.

In this case, Siebert was the lawfully appointed U.S. Attorney for Virginia. But he wouldn’t sign the indictment. Bondi fired and replaced him with Halligan, who did. Since that skipped the confirmation process, though, it ran into the same problem which got Smith.

Thanks!

Easier said than done. I can't speak for the other three, but Lindsey Halligan would not make it through Senate confirmation. Her Wikipedia bio says:

After graduating from law school, Halligan worked for Cole, Scott & Kissane, an insurance law firm specializing in residential and commercial properties. She became a partner in 2018. At Cole, Scott & Kissane, Halligan represented insurance companies against lawsuits filed by homeowners and corporate plaintiffs.

This is a bit misleading for someone not familiar with the legal industry. Cole, Scott, & Kissane is what's known as a "defense mill". She did not represent insurance companies directly in coverage cases or bad faith cases, etc., she represented them as carriers covering other defendants. So if you get into an accident that's your fault and the person you hit isn't happy with what the insurance company is offering they sue you, your insurance company pays for your representation and pays the settlement. While they're the ones paying for everything and (mostly) calling the shots, they aren't the named defendant; you are. These places are known for low pay and high billing requirements, and that she made partner after five years isn't surprising because most attorneys will jump ship as soon as they get a better offer. And being partner doesn't mean that you can bring in business like it does at most firms, just that you get to bill at partner rates which are ten bucks an hour more than associate rates. This is mostly just to compensate for a lower billable requirement due to increased administrative work.

After nearly a decade of doing that, during which time she never once took a case to trial, she met Trump and he hired her as one of his personal attorneys in the classified documents case, where she basically did doc review. I don't want to denigrate what she did here (there's a kind of do review that's bottom of the barrel in the legal profession, but this isn't that), because reviewing documents and analyzing them is a core part of legal work. But it hardly qualifies one to be United States Attorney. Most of these people are career prosecutors with significant trial experience. Halligan is about as qualified to be US Attorney as I am, and I'm not qualified at all. There are people associated with this board who are more qualified by virtue of their having worked as criminal defense attorneys for some amount of time. The only real "qualification" she had was that she was willing to sign an indictment that literally no other attorney in the office was willing to sign.

Amateur hour is the fact that these indictments even happened. The Comey one was already on incredibly thin ice anyway after Halligan failed to read the corrected version of the indictment to the grand jury before they voted on it. Or that the James indictment, which didn't have a lot of meat on the bone to begin with, somehow failed to make the best argument. Or that literally everyone in the US Attorney's office for the Eastern District of Virginia, including Trump's named interim US Attorney, came to the conclusion that unemployment was preferable to being involved in these prosecutions. Given Trump's vindictiveness, it's a miracle he didn't order Halligan to fire the entire staff and just not have any prosecutions in the Eastern District for a while. If there's one silver lining to the corruption it's that it's balanced by a heavy dose of incompetence.

After nearly a decade of doing that, during which time she never once took a case to trial,

To be fair, that is a moderately impressive achievement (unless she was handing the trial work off to a trial specialist). That type of law firm avoids trials like the plague.

The Comey indictment paperwork screwup is one of the all-time great amateur hour screwups and the Lowering the Bar and/or Above the Law accounts of it are going to be coffee/keyboard risks. If Trump were more personally involved I would say it is an example of his scofflaw attitude and calculated contempt for procedural regularity and cast aspersions that he was trying to lose on a technicality deliberately in order to avoid losing on the merits, but in this case I think it is just that Halligan is incompetent and either she didn't bother to find a competent junior career AUSA to help her with the paperwork or the whole thing is so outrageous to the culture of career prosecutors that she couldn't.

The lawyer who was selected for hotness has a fool for a client.

The lawyer who was selected for hotness has a fool for a client.

Lawyers are like houses - if you judge by the usual criteria, you pay through the nose and get one no better than anyone else’s. So you need a find a criterion which is meaningful to you :P

What's the lawyer version of the worst house on the best street you can afford?

A paralegal or wet-behind-the-ears junior associate writing under a Biglaw letterhead.

The worst lawyer from a Big Four Magic Circle legal company, naturally.

Doesn't affect the argument, but Big Four is for accountants (and accountant-adjacent management consultants). The equivalent for law is Biglaw, or if you want to be specific to the top tier in prestige and not just size, White-Shoe in the US and Magic Circle (or Silver Circle for the next tier down) in the UK.

Thanks! You're right, I was thinking of the Magic Circle.

Has this objection been used before? Conversely, have previous administrations gotten away with repeated interim positions?

I seem to recall Trump I having a lot of trouble filling similar positions. Trump II has done a much better job on that front, so I’m a little surprised that they left the goal open. With control of the Senate, Republicans had to have the option, right?

I’m tentatively okay with this outcome. If your handpicked man resigns rather than take a case, it’s a sign that the case is weak.

I don't know if the repeated interim appointment thing has ever been done, but that's not really the whole story, because it likely wouldn't have mattered in the past. The problem is that she was the only one in the office to sign the indictment. Typically, a line prosecutor would be in charge of the case and sign the indictment, but these indictments were so incompetently handled and obviously politically motivated that nobody else in the office was willing to sign them. Hell, her predecessor got fired for refusing to sign. So the only person who signed the indictment had as much authority to do so as you or I do, so they aren't valid.

Has this objection been used before? Conversely, have previous administrations gotten away with repeated interim positions?

The opinion talks a little about the history. Pre-1986 there was no mechanism for the Attorney General to appoint USAs at all. Between 1986 and 2006 it seems there were a couple times the Attorney General re-appointed someone, but no one challenged it. In 2006 Congress abolished (c)(2) and (d) altogether. Then in 2007 it brought them back.

I seem to recall Trump I having a lot of trouble filling similar positions. Trump II has done a much better job on that front, so I’m a little surprised that they left the goal open. With control of the Senate, Republicans had to have the option, right?

For Halligan, specifically, I think there were timing issues. Siebert resigned on 9/19 and the statute of limitations for Comey's charges would be up on 9/30. So that's ~7 business days to get Halligan confirmed in the Senate and secure an indictment. Halligan was ultimately appointed the 22nd and the indictment was docketed on the 25th.

For the others, part of the problem is that the way they've made them "Acting" officials under the FVRA means they can't go ask the Senate for confirmation. The FVRA generally prohibits the nominee for a position from also serving as an "Acting" official in the role they are nominee for, subject to some exemptions that don't apply here.

Then in 2007 it brought them back.

The key background to this is that as soon as the 2006 law passed GW Bush fired a bunch of his own Senate-confirmed US Attorneys for no obvious reason and replaced them with long-term interims. Democrats tried to run with this as a massive abuse-of-power Bushitler scandal and Republican senators saw it as an attack on their patronage. (The mos maiorum was that home-state senators from the President's party had a major role in picking US Attorneys). So if you are trying to tea-leaf-read Congress's intent (which you should only be doing if the actual statutory text is ambiguous, but on a superficial reading it appears to be) there was a bipartisan consensus against long-term interim US Attorneys.

See my above comments, but those concerns aren't really valid when you consider:

  1. There's no way Halligan was getting Senate confirmation and

  2. This wouldn't have been an issue at all if there had been literally one other person in the office willing to sign the indictment.

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