I’m not generally a fan of Ellie Honig, and don’t usually think much of his on-air legal analysis, but this seems very sound:
There are some things when you're a prosecutor, you don't need anyone's permission to do," Honig said. "If I want to serve a subpoena, I don't need to get a judge's permission, I just serve the subpoena. There are some things you need to just sort of run by the judge. There's something called the pen register, where you look at what phone numbers a different phone number's calling. You need to just tell the judge, hey, judge, we're doing this, we have good reason, but you don't have to say what the reason is. Then there's a search warrant, and there you need to establish probable cause, and you need to do it with specificity and in detail. You have to write up an affidavit."
"I've done a lot of these – it's a pain," he added. "You bring it over to the judge, the judge reviews and says, okay, I find probable cause. Now, a couple of important caveats. Probable cause is a low standard. It's not nothing, but it's a [low] standard, and judges are not in any position to question the credibility of the evidence you bring them. So if you say in your affidavit, I have a witness who tells me that some crime happened, the judge is not in position to cross-examine that witness or to say, gee, I don't know if I believe that witness. So all you have to do as a prosecutor is make a facial showing. But, yes, a judge is supposed to give it, and in this case, a magistrate judge did review this and find there's probable cause that a crime was committed and that you'll find evidence of that crime in the place you're searching."
Judges tend to defer to prosecutors on search warrants, but Honig said local officials in Fulton County had no way to challenge the warrant they have protested as faulty.
"There's no way, really, for Fulton County to put in a motion to a judge and say, we didn't like that search warrant, something was improper about it, cancel it and give us our stuff back," Honig said. "There's just no procedure for that. So you're sort of at the mercy of the government until the point if and when there's ever a charge, then you can challenge."
Call it a weakness in the system. The prosecution is not supposed to act the way Trump’s DOJ does. Everyone has been very slow to figure that out.
Honig argued that the statute of limitations for any alleged crime committed around that election had likely run out by now.
"The normal statute of limitations on almost all federal crimes is five years," he said. "So the 2020 election was over five years ago, the transition period was over five years ago. So the only way they get around this, there are some crimes that have a longer statute than five years, but I can't think of one that might be applicable here. But the other thing is, if you charge a conspiracy, as long as you can show some act that carries on into your five year period, then you're okay. But they're going to have I think there's going to be a statute of limitations here."
So bringing charges is actually highly unlikely (yes, a conspiracy that was ongoing after the election and within the limitations period would toll the statute. But that would actually be harder to prove/sustain in court. That’s a critique brought up about the dismissed Georgia charges; and one reason Jack Smith limited the parties in his cases.). Not that Trump understands that. And I do think he wants more than just to harass Comey or James, or even Obama. Trump wants his pound of flesh, and the more he’s denied it, the further afield he goes to find it.
The presence of Trump's intelligence chief Tulsi Gabbard also raised Honig's eyebrows.
"No idea, totally bizarre," he said. "There's no reason for the DNI, I mean, we heard the president say, well, she's there, she's trying to ensure that the next election is safe. Why would she need to be on the ground as agents are wheeling boxes of ballots out of Fulton County, Georgia? I think it's just for show, and it's not something I've ever seen before."
I think Gabbard was just polishing a turd. She has no business there, except to prove this is not a serious criminal activity investigation. (I’m wildly speculating, but I wonder if she doesn’t introduce chain of custody issues into any proceedings based on any of these documents. I don’t seriously expect a criminal prosecution from this search, but chain of custody records would be crucial to that. Another reason I think this is just harassment and porn for Don, rather than legitimate.)
Trump wanted to require all new voter registrations and requests for mail ballots to first show proof of citizenship. The court ruled he didn’t have that authority, and permanently enjoined his efforts to do so. If nothing else, it gives every state in the union cover to refuse to follow the EO. Which doesn’t apply to them anyway, since they are sovereign states, not extensions of the administration. (Trump could just as effectively write an EO directing the Senate to eliminate “blue slips.” Which I’m sure he’d also like to do.)
This seems very familiar, too:
"The administration is pressuring [federal prosecutors in Minnesota] to file charges even when agents have not turned over body-cam footage to support the charges, and when information exists to suggest the officer may have assaulted the protester first, according to the sources, who declined to be named for fear of retribution," Mother Jones reported.
It's a sharp difference from how prosecutors typically operate.
“That’s historically not how we do things,” one told me. Traditionally, “you see the evidence first and then decide what to charge; you don’t charge and then see the evidence. It’s a horrible way of doing business.”*
Which is very much how Trump tried to proceed in 2020, and why over 60 cases were each quickly dismissed. You can’t sue and then go looking for evidence to support your suit (especially from the party you are suing. That’s what civil discovery is for, but you have to have some evidence of a valid claim to start discovery with. The concept is broadly “due process of law.”) Likewise you can’t bring criminal charges and then find evidence to support them. That’s even more egregious than filing a groundless civil suit.
In the wake of ICE's fatal shooting of 37-year-old mother Renee Good, five senior prosecutors at the Justice Department’s Civil Rights Division in Washington, D.C., a unit that specifically investigates police killings, have resigned.
“It’s a big deal, and this is fairly unprecedented,” former federal prosecutor Laurie Levenson, who is now based in Los Angeles, told Mother Jones. “You have so many leaving, and frankly on principle: We are living in unique times where prosecutors are being asked to do things they’ve never had to do before. That’s not what they signed up for.”
Meaning they didn’t sign up to take unethical orders from criminal whack jobs. Yes, your license could be at risk; but more likely your career crashes to a halt. Good prosecutors have good reputations in the private sector. But as the saying goes: lie down with dogs, and you get up with fleas.
Good luck getting those off.
It’s a slow process, but Trump’s ignorance, arrogance, and stupidity mean he’s cutting his own throat. It’s better than seeing him as the super-powerful dictator he wants to be.
*Don’t sleep on that question of who started it, either. That’s the fatal flaw with the Insurrection Act in this situation. Sure, Trump can call in the troops to quell the violence. But who’s kicking out a taillight, and who’s gunning down unarmed people in the streets? If the Marines stop the guy from kicking the car, what do they do about the ICE agent putting 10 taps in the guy in restraint? The same guy they just kicked shit out of?
