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PaperclipPerfector  2d ago (text post)   6488 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

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

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.

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.

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.

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