One of the nation’s strangest laws is primed for reform in a new bill from Rep. Steve Cohen, D-Tenn., that would bring a dose of logic to federal drug policy.

That unusual law — Supreme Court Justice Neil Gorsuch called it a “curious animal” — is the Controlled Substance Analogue Enforcement Act. Known as the Analogue Act for short, it’s part of the Anti-Drug Abuse Act of 1986, which was rushed into law ahead of that year’s midterm elections by a bipartisan Congress and Republican President Ronald Reagan. Passed in the shadow of high-profile deaths, including that of basketball star Len Bias, the Anti-Drug Abuse Act brought mandatory minimum sentences and a vast disparity in punishment for crack and powder cocaine offenses, respectively.

The Analogue Act separately sought to solve the problem of so-called designer drugs. The problem, as the authorities saw it, was that the law was too specific. Cocaine, heroin and other drugs were illegal because they were listed under the Nixon-era Controlled Substances Act’s drug schedules. But nothing was stopping underground chemists from tinkering with listed substances to produce new ones that the law didn’t capture. Congress could ban novel drugs as they appeared on the illicit market, but that took time and would only apply going forward. Bad actors went unpunished in the meantime, so the government thinking went.

As I laid out in my book, “Bizarro,” on the inside story of the Analogue Act and one of the most peculiar cases it spawned, law enforcement was tired of playing catchup in the cat-and-mouse game. It wanted to go on offense. The result was the Analogue Act, which expanded federal drug law to say that any substances “substantially similar” to already illegal ones like cocaine, heroin and others on the most restricted drug schedules were illegal, too.

‘Curious animal’

In solving one problem, the Analogue Act confronted another: the Constitution.

Due process means that people need notice of what’s legal, so they can live their lives accordingly. Yet the act’s substantial-similarity test outlawed a potentially infinite number of substances with a vague, unscientific standard. Whether that standard is satisfied in a given case depends on whether prosecutors can convince juries that one substance is “substantially similar” to another. The ambiguous test has led to conflicting verdicts in different cases involving the same substance.

Even the Drug Enforcement Administration’s chemists haven’t always agreed among themselves about which substances qualify as analogues. If the government’s own experts can’t agree about what’s legal, how can people subject to the law be expected to know?

Judges appointed by Republican and Democratic presidents alike have questioned the act’s constitutionality. Notable among them is Gorsuch. Before President Donald Trump appointed him to the Supreme Court in 2017, the jurist called the act a “curious animal” in a 2015 ruling when he was on the Denver-based appeals court. Gorsuch deemed the “substantially similar” test’s meaning an “open question,” as he wondered whether it gives citizens fair notice.

But even since he joined the high court, the justices have refused to consider a petition attacking the Analogue Act. The court’s lack of interest effectively has left the matter with Congress.

Taming the animal with an ‘and’

Enter the new bill announced by Cohen, who has criticized the drug war during his nearly two decades in the House. The Democrat isn’t running for re-election this year, after Tennessee Republicans passed a congressional map, backed by recent Supreme Court rulings, that splintered his Memphis base in what was the state’s only majority-Black district.

Cohen’s “Public Health and Research Reforms in Controlled Substances Act” would, as its name suggests, shift drug law from a punitive approach to one centered on public health, with a revamped scheduling system, scientific research promotion and other measures.

Its analogue amendment wouldn’t overturn the constitutionally suspect “substantially similar” test, but it would address one of its ridiculous aspects.

To understand the fix, it’s necessary to know what the act says currently. It has three sections that define what a controlled substance analogue is, according to its 1) structure, 2) effect and 3) represented effect. It defines an analogue as a substance:

i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

Beyond the vagueness at the heart of the term “substantially similar,” a key issue is the language in between each section. There’s an “or” in between the second and third sections on effect and representation, but there’s nothing in between the first and second sections on structure and effect. A draft version of the 1986 law had an “and” in between those first two sections, which would have clearly meant that, to qualify as an analogue, at least a substantially similar chemical structure was required.

It’s unclear why the “and” didn’t make it into the final version of the Analogue Act. But its omission has prompted an outlier legal argument that prosecutors only have to prove one of the three prongs: structure, effect or representation of effect. The consequences of that reading are extreme, because if only representation is required (regardless of what the substance actually is or does), then people can serve decades in prison for selling something that isn’t similar to a scheduled drug at all.

What an appeals court called an “absurd” example of that phenomenon arose in a prosecution against people who sold a mixture of candle wax and flour under the pretense that it was crack/cocaine. “The treatment of candle wax and flour, no matter how it is marketed, as a schedule I controlled substance is an ‘absurd’ result of the kind our canons of construction instruct us to avoid,” the Philadelphia-based court said in a 2003 case, reversing a district court that ruled otherwise.

Yet the concern over that absurdity was not relegated to history. Just a few years ago, a San Francisco-based appeals court suggested that the act could still be used to achieve such an outlandish outcome. Even the government wasn’t pressing for that aggressive interpretation, so the court didn’t feel bound to embrace it in that case.

But if the Analogue Act stays on the books as is, courts could keep reaching “absurd” results in future cases.

‘Open question’

Cohen’s proposed legislation would prevent that absurdity by adding the “and.” Had it been there at the time of the wax-and-flour case, the district court would have had to side with the defense, because even if the mixture was marketed as crack, its chemical structure was not substantially similar to crack by any reasonable measure.

To be sure, the new bill’s analogue amendment wouldn’t solve the due process problem inherent in the “substantially similar” test; that could probably only be done by overturning the act entirely. Still, the bill would bring a dose of logic that has been missing for four decades.

Whether that modest measure has the votes to become law with today’s Congress and White House is, as Gorsuch put it in 2015, an “open question.” But even if this bill doesn’t pass, it’s an important question to keep asking.

Subscribe to the Deadline: Legal newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.

The post Neil Gorsuch called this law a ‘curious animal.’ A new bill would tame it. appeared first on MS NOW.

Ministry of Justice figures show recalls rose 27% in year to June despite emergency measures to ease overcrowding

More people were recalled to jails in England and Wales in the first half of this year than were released, despite government efforts to reduce the prison population, according to figures released on Thursday.

Ministry of Justice (MoJ) data shows that 12,338 people were recalled to custody between the beginning of April and the end of June, while 12,278 people were released. It continues a trend set between January and March, when 13,193 people were returned to prison and 12,977 released.

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© Photograph: Tolga Akmen/EPA

© Photograph: Tolga Akmen/EPA

© Photograph: Tolga Akmen/EPA

Over the past week, the public has learned of three efforts by the Department of Justice to charge perceived enemies of President Donald Trump with federal crimes. One of those efforts, an attempt to indict former White House aide turned Jan. 6 committee star witness Cassidy Hutchinson, failed on Tuesday after a Washington, D.C., grand jury did not have the votes to return what’s known as a “true bill.”

The other two have resulted in the opening of criminal cases: one against former FBI Director James Comey, the third such effort against him in just over a year, and the other against two former FBI employees alleged to have lied to a congressional committee about what they knew about Hunter Biden’s laptop.

And with the midterm elections literally days away, despite this seeming escalation in prosecutions, the Justice Department has maintained that political considerations had nothing to do with the timing or existence of these criminal matters.

As a DOJ spokesperson told The New York Times, “The standard is purpose, not proximity to Election Day. Department policy does not require the department to stop ongoing work during an election season.”

Yet even assuming that Justice Department prosecutors are acting in good faith, that description of DOJ policy is incomplete.

A memo issued in 2024 by then-Attorney General Merrick Garland mandated that prosecutors not time “criminal charges or any other action in any matter or case for the purpose of affecting any election.” The memo went on to say, “Such a purpose, or the appearance of such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution” (emphasis added).

The Justice Department did not immediately respond to MS NOW’s request to confirm whether the memo was still in effect. MS NOW is unaware of any evidence that it has been rescinded.

Moreover, the Justice Manual — sometimes called the bible of federal prosecution by current and former DOJ personnel — provides that any issue or even “the perception of an issue” concerning an investigative or prosecutorial action during an election season demands consultation with the Public Integrity Section, the deputy attorney general and/or the attorney general themselves. In other words, Trump political appointees, up to and including Attorney General Todd Blanche, are the final arbiters of whether a prosecutor’s purpose is legitimate.

Given that, some or all of them must have signed off on these recent prosecutorial developments. But the mistakes made by DOJ lawyers in each of these cases suggest both a rush to the courthouse and a desire to stretch the law, criminal procedural rules or both in ways that might fail or have already faltered.

Take the most recent criminal charges against Comey, unsealed earlier this week. Those charges center on the purported disclosure of allegedly classified information by an FBI employee to a New York Times reporter who published an article hours later. According to the DOJ, Comey intentionally caused that disclosure on Oct. 5, 2016, knowing the information was classified.

But the case against Comey, filed 10 years later to the date, was not initiated through an indictment, which requires a vote of at least 12 grand jurors in a federal court. The Justice Department charged Comey via an information, which does not require grand jury involvement and therefore typically can be filed much more quickly than an indictment.

Because the statute of limitations for each of the charges against Comey is 10 years, the DOJ seems to have assumed it could charge Comey by information within that window and then later obtain an indictment, which (barring a defendant’s waiver) is necessary to prosecute felonies.

But now the department is instead defending Comey’s near-immediate motion to dismiss. And his legal team’s argument has nothing to do with the substance of the charges or claims of selective or vindictive prosecution, which it supported with extensive documentation in the two prior cases against Comey.

Instead, Comey’s attorneys argue that the plain language of the statute of limitations pertains only to indictments, not informations or criminal complaints, the third way federal criminal cases can begin. A Washington, D.C., federal judge will hold a hearing on that motion Friday.

The case against former FBI analyst Nikki Floris and former agent Bradley Benavides seems to show signs of a similar rush to the courthouse. That case was instigated on Oct. 20 through a criminal complaint, which typically contains a written statement of “the essential facts” of the offense charged, usually submitted by a federal law enforcement agent under oath and then approved and signed by a federal magistrate judge.

But within days — and literally in the middle of the night before a preliminary hearing — the Justice Department filed what it characterized as a “superseding” criminal complaint. The new complaint lacked a signature from either the agent, swearing to its veracity, or the judge himself. It also was filed under the name of a different FBI agent, without any explanation.

The magistrate judge, Zia Faruqui, was furious, asking the DOJ lawyer whether he was aware of any prior federal case in which a magistrate judge had allowed a superseding criminal complaint without a judge’s sign-off. The lawyer acknowledged that he was not — and ultimately, the judge refused to sign the new complaint, telling the prosecutors, “I am concerned about what your view of the law is.”

The hearing was further derailed when Bryan Witt, the agent who replaced the original affiant, took the witness stand to defend the government’s finding of probable cause to charge Floris and Benavides.

On questioning by Floris’ lawyer, Witt testified that the day after Trump complained during a national address that some FBI intelligence officials had downplayed a report that China had tried to interfere in the 2020 election in order to defeat him, FBI Director Kash Patel directed the U.S. attorney’s office in Kansas City, Missouri, to investigate some of those same officials, including Floris. Witt further testified that the letter arrived “right in the middle of a major public corruption case,” that the new investigation was “a huge distraction” and that he had concerns from the outset that “this would be viewed as political.”

He also admitted that he never interviewed Floris, though he said it would have been “incredibly useful” and normally would have been something agents did, and that the initial complaint contained factual inaccuracies. As of Wednesday afternoon, Faruqui was still weighing whether prosecutors had probable cause to charge Floris and Benavides.

In light of the challenges the DOJ has encountered in that case, one may wonder if it would have been more effective to slow down and present an indictment to a grand jury. Yet the department’s failed attempt to secure an indictment against Hutchinson — its third potential own goal in recent days in D.C. federal court — might explain why it didn’t.

Because grand jury proceedings are secret, it is unclear why the grand jury did not indict Hutchinson. But according to public reporting, including from MS NOW, lawyers from the DOJ’s Civil Rights Division proposed charging her with false statements to Congress, crimes not usually within that unit’s ambit.

The Justice Department’s inability to indict her comes after an unusual number of similar losses in other cases in Washington that have involved known targets of Trump’s ire, including an attempt to indict six members of Congress who, through a video, encouraged military service members to refuse to follow unlawful orders.

And with days to go before the midterm elections and with a president who is openly taking credit for the DOJ’s litigation strategy, it could be that no matter what charging instrument the department chooses, it is working too fast — and with too conspicuous a veneer of partisanship — to succeed.

The post DOJ says recent charges against Trump foes aren’t rushed or improper. But it keeps hitting roadblocks. appeared first on MS NOW.

Immigration and Customs Enforcement (ICE) agents slashed the tires of a couple who were recording the agents in an incident near Portland, Oregon, earlier this month. The agents then drove away without arresting or talking to the couple, video footage shows.

The American Civil Liberties Union (ACLU), which released the footage today, says it is yet another example of ICE agents retaliating against people for protected First Amendment activity. In an administrative complaint on behalf of the anonymous couple, the ACLU and the ACLU of Oregon are demanding an investigation and answers from the Department of Homeland Security (DHS) about why agents tailed, boxed in, and "vandalized" the vehicle of a U.S. citizen.

The stunning video does not resemble any sort of normal law enforcement:

"What happened to us is not unique, and that is what is so terrifying," A.P. and M.P., the unnamed husband and wife, said in a statement provided by the ACLU. "We observe and record public ICE activity in order to shine a light on their abusive behavior and to create a record of what our government is up to. Because of that, they are terrorizing us and anyone else who dares to exercise their First Amendment right to hold our government accountable. We hope that sharing our story will bring attention to their reckless and unconstitutional attacks on our communities."

According to the ACLU complaint, the unnamed married couple was driving in Hillsboro, Oregon, on the morning of October 7 when they spotted an ICE SUV. The couple followed the SUV to a supermarket parking lot, where there were also two other ICE vehicles. The couple lowered their windows and began yelling "This is ICE! This is ICE!" as well as blowing whistles and honking the car's horn.

One ICE agent grabbed a shopping cart and began approaching the couple's car. The complaint states that the couple heard the agent say something to the effect of, "Let's block them in with the cart." As the couple began driving away, several ICE agents began chasing after them on foot. 

The three ICE vehicles chased the couple after they left the parking lot, "driving aggressively and nearly colliding into" their car, according to the complaint. Additional video shows the ICE vehicles swerving aggressively in front of the couple's car and later unsuccessfully attempting to box in their car. "None of the ICE vehicles had their flashing lights or sirens on during this entire sequence of events," the complaint states.

The couple cut through an empty parking lot, and the chase continued down several more streets before the ICE vehicles turned on their emergency lights and sirens. According to the complaint, the couple continued driving for roughly a minute, fearing to pull over on an empty road with no bystanders. 

Video shows that when they stopped at a traffic light, a masked ICE agent exited his vehicle, walked up to the couple's car, stabbed one of its rear tires with a knife, and then walked back to his car. The couple's car moved slowly forward and into a turn lane before stopping again. Then the same agent got back out of his vehicle and stabbed the tire a second time before returning to his vehicle without attempting to speak to the couple.

"All three ICE vehicles turned off their flashing lights and sirens and drove off," the ACLU complaint states.

The complaint notes that the couple "experienced retaliatory action similar to that experienced by many other individuals across the country engaged in these same First Amendment protected activities."

"In particular, individuals around the country have reported being similarly tailed, boxed in, and threatened with or subjected to violence after observing, gathering information about, and recording ICE agents performing their duties in public," the complaint states.

Last October, ICE agents in the Portland area busted out the car windows of a U.S. citizen who had been filming them, dragged her out of her vehicle, and detained her for roughly seven hours before releasing her without charges.

The ACLU of Tennessee filed a class-action lawsuit in May against a federal law enforcement task force in Memphis for harassing legal observers. Memphis residents allege in declarations that they have been violently arrested, surveilled at their houses, pulled over under false pretenses, and jailed for trying to film the task force. In September, the ACLU of Tennessee published videos showing federal agents arresting the lead plaintiff in its lawsuit while he was attempting to film task force operations.

DHS and immigration officers have repeatedly accused videographers and legal observers of obstruction of justice and "doxxing," but civil liberties advocates say the DHS is flat wrong about the law: Every federal appeals court that has considered the issue—nine so far—has firmly upheld the right to record law enforcement in public.

The Supreme Court has also unequivocally upheld the First Amendment right to criticize or oppose police activity, whether verbally or through other expressive activity.

"The right to record publicly visible law enforcement activity is fundamental to our democracy," Scarlet Kim, senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, said in a press release. "Like many people across the country, our clients have been observing and recording ICE activity in their community. These videos have proven critical to exposing ICE's abuses. If we cannot see and document what our own government is doing on our streets, we cannot hold it accountable for running roughshod over our rights."

The ACLU complaint to the DHS Office of Inspector General and two other DHS oversight offices demands that the agents involved in the incident be identified, investigated, and disciplined. The ACLU is also requesting a "comprehensive investigation of a disturbing pattern of ICE agents retaliating against individuals who observe, gather information about, and record ICE activity."

The DHS did not immediately respond to a request for comment.

The post Video Shows ICE Agents Slashing Portland Couple's Car Tire Then Driving Off appeared first on Reason Magazine.

"I am very concerned about the weaponization of the Justice Department," Sen. Bill Cassidy (R–La.) told reporters in August, explaining his reservations about voting to confirm Todd Blanche as attorney general. Cassidy specifically cited the attempt to prosecute Cassidy Hutchinson, a White House aide during President Donald Trump's first term, based on her 2022 testimony before the House select committee that investigated the 2021 riot at the U.S. Capitol. "I'm told there is a grand jury being empaneled to investigate her," Cassidy said. "Why? Tell me that. Shouldn't every American be afraid of the weaponization of the Justice Department?"

Grand jurors in Washington, D.C., who on Tuesday declined to approve an indictment of Hutchinson, apparently shared the senator's concerns about the case against her. That setback is part of a pattern: Grand juries, which historically have almost never rejected charges proposed by federal prosecutors, have done so repeatedly during the last two years, reflecting the Trump administration's tendency to pursue politically motivated cases based on inadequate evidence.

A grand jury hears only the government's side of a case, and the probable cause standard for approving an indictment, which requires reasonable grounds to believe a crime has been committed and that the person identified by prosecutors committed the crime, is much less demanding than the proof beyond a reasonable doubt required for a conviction. But the Justice Department's manual for prosecutors says they should not pursue criminal charges unless "the admissible evidence will probably be sufficient" to meet the latter test. It is a pretty striking indication that prosecutors are disregarding that injunction when a grand jury determines that they have failed to meet the minimal burden of establishing probable cause.

Hutchinson, who at the time of the Capitol riot was White House Chief of Staff Mark Meadows' principal assistant, delivered the testimony at the center of the failed indictment on June 28, 2022. She described Trump as unconcerned about weapons carried by some of the people who attended the speech he delivered the day of the riot, during which he reiterated his false claim that Joe Biden had stolen the 2020 presidential election and urged his supporters to "fight like hell" against congressional ratification of his victory.

Hutchinson said Trump wanted the Secret Service to stop screening rally participants with magnetometers because he was worried it would reduce the size of the crowd. "I don't effing care that they have weapons," Trump said, according to Hutchinson's approximate recollection. "They're not here to hurt me. Take [the] effing mags away. Let my people in. They can march to the Capitol from here. Let the people in."

Hutchinson also said Trump was irate when the Secret Service told him he could not join the protesters at the Capitol. That much was consistent with the testimony of other witnesses. But Hutchinson added disputed details, saying Deputy Chief of Staff Tony Ornato had told her Trump was so angry that he "lunge[d] towards Bobby Engel," the head of his protective detail, and "reached up towards the front of the vehicle to grab at the steering wheel." The Secret Service agent who was Trump's driver that day contradicted Hutchinson's account, and Ornato said he had no recollection of any such incident.

Last March, Reps. Barry Loudermilk (R–Ga.) and Jim Jordan (R–Ohio) urged the Justice Department to prosecute Hutchinson for lying to Congress. "Hutchinson's potential prosecution became a point of controversy between lawmakers and employees of the Justice Department," CNN reports. "Some inside the department believed there was not enough evidence to bring a viable criminal case."

You would expect such a case to be handled by Jeanine Pirro, the U.S. attorney for the District of Columbia. But the investigation of Hutchinson was instead conducted by the Justice Department's Civil Rights Division, which is run by Assistant Attorney General Harmeet Dhillon, another Trump loyalist.

You might wonder what scrutinizing Hutchinson's testimony had to do with "protecting the civil and constitutional rights of all Americans," which is how Dhillon's division describes its mission. Dhillon's involvement is all the more puzzling given that Pirro previously had not hesitated to pursue dubious charges against the president's enemies.

Last February, Pirro sought an indictment of six Democratic members of Congress who appeared in a November 2025 video that reminded U.S. military personnel of their duty to "refuse illegal orders." Trump condemned that message as "SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL," saying the lawmakers "should be ARRESTED AND PUT ON TRIAL." But as a federal judge later noted, the allegedly criminal video was "unquestionably protected" by the First Amendment.

That did not deter Pirro from trying to deliver on her boss's threat. But as in Hutchinson's case, the grand jury apparently was not willing to participate in Trump's vendetta. After it unanimously refused to approve the indictment, Pirro gave up.

That embarrassing experience may have deterred Pirro from getting involved in Hutchinson's case, especially if she thought there was not enough evidence to obtain a conviction. She would have had good reasons for reaching that conclusion.

It is not clear exactly what charges the grand jury rejected this week. But the most obviously relevant statutes are 18 USC 1001, which covers false statements "in any matter within the jurisdiction of the executive, legislative, or judicial branch," and 18 USC 1621, which covers false testimony under oath. Both are felonies punishable by up to five years in prison. But a conviction under Section 1001 requires proving that the defendant "knowingly and willfully" made a "materially false, fictitious, or fraudulent statement," and the perjury statute applies only when a sworn witness "willfully and contrary to such oath" makes a "material" statement that "he does not believe to be true."

Those elements would have been hard to satisfy in Hutchinson's case. Her testimony about Trump's insouciant attitude toward weapons carried by his supporters was based on what she said she heard him say, an account that pits her word against that of a habitually dishonest politician whose speech that same day was full of misrepresentations. And even if her recollection of Trump's comments was not fully accurate, that does not necessarily mean she intentionally gave false testimony. The same goes for the alleged lunging-and-grabbing incident, an account Hutchinson said was based on a conversation with Ornato that he says he does not recall.

Maybe Hutchinson, who had a lawyer and was surely aware of the potential penalties for lying to Congress, nevertheless fabricated both of those claims. But assuming her testimony was inaccurate, it seems more likely that she misremembered or misconstrued what Trump and Ornato said. In any event, the task of proving the first proposition beyond a reasonable doubt would give pause to any reasonably cautious prosecutor. And the grand jurors, even without the benefit of hearing a rebuttal to the government's case, thought the evidence of deliberate deception was so weak that it fell short of probable cause.

That determination is just the latest in a series of similar rebukes. In addition to the rejection of Pirro's charges against the "Seditious Six," they include the attempt to prosecute New York Attorney General Letitia James for mortgage fraud, which two separate grand juries in two different Virginia cities blocked last December.

Grand jurors also have stood athwart felony prosecutions of protesters in Washington, D.C., including Sean Dunn, the guy who threw a sandwich at a Customs and Border Protection officer, and Sydney Reid, who allegedly interfered with immigration arrests while using her phone to record them. In the latter case, Reason's Joe Lancaster noted, prosecutors unsuccessfully sought a felony assault indictment "not once, not twice, but a staggering three times." Reid was ultimately acquitted of a misdemeanor charge.

In the summer of 2025, federal grand juries approved just seven of 38 proposed felony indictments against protesters in Los Angeles, an amazingly bad track record. A few months later, federal prosecutors dropped assault charges against two Chicago protesters after a grand jury declined to indict them.

"For decades, federal grand juries have almost never said no," Ballard Spahr attorneys Henry E. Hockeimer Jr. and Brad Gershel noted last year. In 2016, for example, grand juries declined to approve federal indictments just 0.004 percent of the time. "That dynamic is now being tested," Hockeimer and Gershel added. "As the DOJ has adopted a more assertive charging posture in politically sensitive cases, grand juries appear to be reasserting their independence."

The post The Failed Indictment of Cassidy Hutchinson Reflects Grand Jury Resistance to Politically Motivated Charges appeared first on Reason Magazine.

Before a court considers whether former FBI Director James Comey committed a crime, it must decide whether the Justice Department brought the kind of charge Congress required before the statute of limitations expired.

The answer would matter in any federal prosecution. It matters even more here because the case revealed Monday cannot be separated from President Donald Trump’s lengthy public campaign against Comey.

Since firing Comey as FBI director in 2017, Trump has repeatedly called him corrupt and demanded that he be prosecuted. This was no private frustration. Trump put his wishes in writing online. He pressed then-Attorney General Pam Bondi to pursue Comey and other perceived enemies last September. “They’re all guilty as hell,” he wrote, adding that “JUSTICE MUST BE SERVED, NOW!!!” Days later, Comey was indicted.

That first prosecution, involving Comey’s congressional testimony, was dismissed because the prosecutor who obtained the indictment had been unlawfully appointed. A second case, based on Comey’s “86 47” seashell photograph, remains pending.

The latest case dates to October 2016. Prosecutors allege that Comey directed someone to provide a reporter with national defense information about a secret court order requiring Yahoo to scan emails for messages potentially connected to a foreign terrorist organization. Comey denies wrongdoing, and his lawyers say the matter was previously investigated twice without charges being brought.

On Oct. 5, exactly a decade after the alleged conduct, Justice Department lawyers filed a criminal information under seal. A “criminal information” is a formal accusation signed by a prosecutor. An indictment contains similar allegations but with one crucial addition: A grand jury has heard the government’s presentation and agreed that probable cause exists to bring the charge.

Informations are legitimate in the right circumstances. They are commonly used when defendants intend to plead guilty and formally waive their right to an indictment. Comey has not waived that right, and the Justice Department does not appear to claim that it could take him to trial on the information alone. The government’s narrower position is that filing the information kept the case alive, leaving prosecutors free to obtain an indictment later.

The ordinary five-year statute cannot save this case.

Under the ordinary federal statute of limitations, that argument is not especially strange. The general rule gives prosecutors five years to bring most federal charges. It says the government acts in time if an “indictment is found” or an “information is instituted.” Applying that language, courts have allowed prosecutors to file an information before the deadline and obtain an indictment afterward, even without a defendant’s waiver.

But the ordinary five-year statute cannot save this case.

To prosecute Comey over conduct alleged to have occurred in 2016, the Justice Department is relying on a special provision giving the government 10 years to charge certain national defense offenses.

That provision is worded differently. It says that an “indictment” has to be brought within 10 years. It does not mention an information.

That is where the Justice Department’s theory becomes difficult to defend. The law allowing prosecutors to stop the clock with an information gives them only five years. Essentially, the DOJ is trying to take the 10 years from the first law and the easier filing method from the second — but Congress never combined the two.

Congress clearly understood the difference between an indictment and an information, because both words are used in the general statute. Yet when lawmakers granted prosecutors twice as long to bring this particular category of cases, the statute used only one. If Congress intended both charging documents to have the same effect under the special provision, it wouldn’t have omitted one.

The government says filing an information to preserve a prosecution is widely recognized federal practice. Some appellate decisions permit exactly that. But those cases generally interpret the ordinary limitations statute, the one that expressly includes both charging documents. They do not settle whether prosecutors can use an information under a different provision in which Congress referred only to an indictment.

A statute of limitations is part of the law governing prosecution, not administrative clutter around the edges.

The Justice Department is likely to argue that the special law merely changes the number of years available, leaving the rest of the general limitations framework intact. Comey’s position in his motion to dismiss is that the special provision supplies its own instruction: An indictment must come within 10 years. The statute does not say that prosecutors may file whatever charging paper they have ready at the deadline and obtain the indictment later.

This may sound like legal hair-splitting, but it’s important. A statute of limitations is Congress’ judgment about how long the government should have to place someone in criminal jeopardy. It is part of the law governing prosecution, not administrative clutter around the edges.

These limits exist because evidence grows stale, witnesses disappear, and memories become less reliable. They also reflect a basic principle: The federal government, with its enormous investigative resources, eventually must decide whether it has a case. Congress gave prosecutors a generous period of 10 years for these offenses.

It’s also noteworthy that this allegation did not suddenly appear at the last minute. According to Comey’s lawyers, the disclosure was examined in 2017 and again in 2019 without a criminal case being filed. The Justice Department had years to review the evidence and, if it wished, present the matter to a grand jury.

Federal grand juries traditionally favor prosecutors: No defense is present, the government controls the evidence, and the standard is only probable cause. But that advantage depends partly on trust, and Trump’s Justice Department has squandered a lot by repeatedly pursuing people the president has publicly demanded be charged.

That makes the missing indictment here more significant. An information bypasses even this modest outside check, allowing prosecutors to file an accusation when the president has announced the outcome he wants.

The government had 10 years and missed its deadline. When a president demands a prosecution, the rules should be enforced more strictly, not less.

The post The latest attempt to prosecute James Comey has a fundamental flaw appeared first on MS NOW.

Amid a flurry of Justice Department efforts to target people whom Donald Trump doesn’t like, two former FBI officials were charged late last week with lying to Congress — in a case of particular interest to the president.

Remember the story about Hunter Biden’s laptop? As part of a Republican investigation into the matter, Nikki Floris, the former deputy assistant director of the FBI’s Counterintelligence Division, and Bradley Benavides, another FBI official, briefed members of Congress about the contents of the computer. Last week, Trump’s DOJ charged them with allegedly making false statements about their level of involvement into the investigation.

Their attorneys condemned the charges as political “nonsense,” announced 10 days before closely watched elections, and it didn’t help matters that the president told reporters after their arrest, “I heard they were bad people.” He did not say from whom he’d heard this.

Nevertheless, the case appears to be off to a rough start. After prosecutors added an obstruction charge to the case, for example, a federal judge dismissed it.

But just as notable was what we learned from Bryan Witt, a veteran FBI agent, who testified Tuesday and shed light on what transpired behind the scenes. The New York Times reported:

In mid-July, President Trump gave a prime-time speech in which he raised concerns about a disputed F.B.I. report that China had tried to interfere in the 2020 election in an effort to defeat him.

At the heart of his address was a bitter complaint: that some of the bureau’s intelligence officials had purposefully sought to play down the report to undercut his claims about the race.

According to Witt’s testimony, one day after Trump targeted FBI officials in his remarks, FBI Director Kash Patel directed prosecutors immediately to investigate the officials for obstruction and conspiracy.

Witt conceded that FBI officials saw the inquiry as a “witch hunt,” and he personally saw the effort as a “huge distraction,” but the push ultimately led to charges against Floris and Benavides.

The Times report went on to note that Witt “asserted from the stand that he had never before worked on a case where instructions came directly from the F.B.I.’s director. He added that Mr. Patel and his deputies often checked on his progress, pressing him and his colleagues to move as aggressively as possible.”

Time will tell what becomes of the case, though it’s a safe bet that the defendants’ attorneys have taken a keen interest in what Witt had to say. But the broader takeaway from the agent’s testimony is unavoidable: Trump snaps his fingers, and Patel follows the president’s orders.

White House control over the Justice Department has been well-documented, but its control over the FBI is just as overwhelming. Patel, best known as a podcast personality before Senate Republicans elevated him to his powerful role, may lead the bureau, but there is fresh reason to believe he’s effectively a DINO — Director in Name Only.

The post In court testimony, FBI agent sheds new light on the White House’s control over the bureau appeared first on MS NOW.

In legal circles, it’s known as “no bill.” That’s the label used to describe what happens when prosecutors go to a grand jury to secure an indictment and regular people serving as jury members decide to reject the effort.

If it seems as if the phrase has come up quite a bit over the past year or so, it’s not your imagination. Donald Trump’s Justice Department tried to indict New York Attorney General Letitia James, for example, but grand jury members balked. The same thing happened when the Republican administration tried to indict several congressional Democrats, as well as in the case against Sean Dunn (better known as the “sandwich guy,” who was later charged with a misdemeanor).

In each instance, federal prosecutors tried to bring dubious charges against a perceived presidential political foe. In each instance, the nature of the process was slanted against the accused. (Grand juries don’t even hear from the defense.) In each instance, Trump’s DOJ failed anyway — despite the fact that a “no bill” is almost unheard of for most career federal prosecutors.

This week, it happened yet again. MS NOW reported:

A federal grand jury on Tuesday rejected an indictment against former White House aide Cassidy Hutchinson after the Trump Justice Department tried to charge her over her stunning testimony on the Jan. 6, 2021, Capitol riot.

Prosecutors in the Justice Department’s Civil Rights Division sought to charge Hutchinson with a crime based on claims she made false statements, according to two people with knowledge of the case. They were granted anonymity to describe normally closed-door proceedings.

To be sure, the developments are humiliating for the DOJ, and it will no doubt be tempting for the administration’s many critics to point and laugh at the failure.

But while that’s understandable, it’s also worth appreciating what a scandal this is.

There’s no reason to believe Hutchinson, who delivered stunning testimony more than four years ago about what transpired on Jan. 6, did anything wrong. But because we’re in a twisted political environment in which people can expect to face prosecutorial scrutiny for having wronged the incumbent president, Attorney General Todd Blanche pushed prosecutors to investigate the former White House staffer, whose case ended up in the hands of Harmeet Dhillon, the controversial Trump loyalist who runs the Civil Rights Division, which wouldn’t appear to have any relevant jurisdiction over a case like this.

What we’re witnessing, in other words, is unambiguous evidence of a hyperpartisan, weaponized Justice Department, controlled by the West Wing, trying (and failing) to prosecute a baseless case against someone Trump doesn’t like.

The developments come against a backdrop in which the same politicized DOJ went after former FBI Director James Comey yet again and charged Democratic state Sen. L. Louise Lucas of Virginia after she spearheaded an electoral effort the White House didn’t like, in the run-up to the midterm elections, when politically sensitive prosecutions are traditionally delayed.

I’m glad the case against Hutchinson flopped, but the larger context matters: The fact that this case was pursued at all reflects crisis conditions in federal law enforcement.

The post When weaponized justice flops: Cassidy Hutchinson case turns humiliating for Trump’s DOJ appeared first on MS NOW.

Years ago, I bought a contraption designed to separate and concentrate the most volatile components of a liquid mixture. I would tell you what I did with it, but I don't want to implicate myself in a federal felony.

Since 1868, it has been illegal for Americans to locate a "distilled spirits plant" in "any dwelling place," an offense currently punishable by a maximum $10,000 fine and up to five years in prison. The federal ban on home distilling is at the center of a case that the Supreme Court recently agreed to hear, which raises a specific constitutional issue but also highlights the absurdity of treating this hobby as a crime.

That policy, the U.S. Court of Appeals for the 5th Circuit ruled last April, cannot be justified as an exercise of the federal government's tax power. To the contrary, Judge Edith Jones said in the court's opinion, the ban is "an anti-revenue provision that prevents distilled spirits from coming into existence," meaning its effect is "to reduce revenue instead of raising it."

Nor is the provision consistent with "the Supreme Court's explanation of how the federal power of taxation works," Jones wrote. When Congress imposes a tax, the Court explained in 2012, it "leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice." But in this case, Jones noted, would-be home distillers "have only the choice not to do as they wish or risk fines and imprisonment."

The government argued that the ban helps collect liquor taxes by prohibiting a form of production that is difficult to detect. But "Congress cannot prohibit intrastate activity solely because it might produce products hard to tax," Jones said. If it could, she warned, there would be "no limit whatsoever" to its tax power.

Under the government's logic, Jones noted, "Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity. Home-based businesses may be forbidden. Remote work may be deemed a crime."

The Trump administration, which wants the Supreme Court to overturn the 5th Circuit's decision, argues that threatening to imprison home distillers is a "necessary and proper" safeguard against tax evasion. But whatever your take on the constitutional question, that policy is morally indefensible, haphazardly enforced, and inconsistent with the federal government's treatment of wine and beer.

The lead plaintiff in this case is Scott McNutt, a member of the Hobby Distillers Association. In 2014, McNutt received a "Notice of Potential Civil and Criminal Liability" from the Treasury Department, which said it had reason to believe he "may have purchased a still capable of producing alcohol and/or equipment and materials that may be used in the manufacture of a still."

The notice warned that "federal law provides no exemptions for the production of distilled spirits for personal or family use." It added that "unlawful production of distilled spirits is a criminal offense," which it erroneously claimed was "punishable by a fine of up to $500,000" as well as "imprisonment for not more than 5 years."

Meanwhile, online retailers such as Amazon sell a wide variety of home stills, many of which are explicitly advertised as appliances designed to produce alcoholic beverages such as vodka, gin, brandy, and whiskey. Customers could be forgiven for assuming that's legal, especially since federal law has long permitted home wine and beer production "for personal or family use."

McNutt's lawyers say he "owns a still that he has used to lawfully distill fuel alcohol and seeks to 'tinker around' with beverage spirits." Another plaintiff, Thomas Cowdrey, "likewise seeks to experiment in creating new beverage spirits, including 'apple pie vodka,' for which he has developed a recipe."

Because of a law Congress enacted 158 years ago, McNutt and Cowdrey would be felons if they acted on those desires. It might be time to rethink that policy.

© Copyright 2026 by Creators Syndicate Inc.

The post A Supreme Court Case Underlines the Absurdity of the Federal Ban on Home Distilling appeared first on Reason Magazine.

The FBI searched a mansion in Beverly Hills, California, on Tuesday connected to a major donor of former Democratic Rep. Eric Swalwell.

Lourdes Arocho, an FBI spokesperson based in Los Angeles, told MS NOW that the agency executed a search warrant at an address along Roxbury Drive. Court documents are sealed and there are no arrests planned, Arocho said.

Beverly Hills city records list the address as belonging to Stephen Cloobeck, a timeshare real estate businessman who backed Swalwell for California governor after dropping out of the race himself. Swalwell ultimately exited the race and resigned from Congress amid allegations of sexual misconduct.

The FBI’s national office said the agency “conducted an operation in the Los Angeles region related to an ongoing criminal investigation.” It did not provide additional details.

MS NOW has reached out to an attorney for Cloobeck and an attorney for Swalwell for comment. The Los Angeles County Sheriff’s Department did not immediately respond to MS NOW’s request for comment.

It is unclear whether the FBI search was linked to Swalwell, who is facing multiple investigations connected to allegations of sexual misconduct, including one by the Department of Justice. In August, the FBI raided Swalwell’s home in Washington, D.C., and seized his phone as a part of the investigation.

Swalwell was close to Cloobeck and frequently taped media interviews at the businessman’s home.

Once seen as a rising star in the Democratic Party, Swalwell dropped his campaign for California governor and resigned from Congress in April after the accusations against him surfaced. He denied the allegations but conceded he made “mistakes in judgment” when announcing his resignation.

Cloobeck said he cut ties with Swalwell after the allegations. He has also been embroiled in controversy of his own. In May, he faced state charges for allegedly threatening witnesses in his then-fiancée’s criminal case in which she is accused of seducing and stealing from rich men. He pleaded not guilty in August.

This is a developing story. Please check back for updates.

Alex Torres contributed reporting.

The post FBI searches California mansion of former Swalwell donor appeared first on MS NOW.

A little more than a year ago, President Donald Trump publicly demanded that Pam Bondi, then the attorney general, find a crime to pin on former FBI Director James Comey. Trump's underlings have repeatedly tried to do that, first charging Comey with lying to Congress and then accusing him of threatening to assassinate the president. But the first indictment was dismissed because Trump had illegally appointed the prosecutor who obtained it, and the second was doomed right out of the gate because it aimed to punish constitutionally protected political speech.

The Justice Department's latest attempt to follow Trump's marching orders was revealed on Monday, when U.S. District Judge Trevor McFadden unsealed a "criminal information" that claims Comey illegally shared classified information with The New York Times on October 5, 2016. In an attempt to meet the statutory deadline for that charge, prosecutors filed it exactly 10 years after the alleged disclosure. But Comey's lawyers argue that federal law required the government to obtain a grand jury indictment within 10 years of the alleged offense, which it failed to do.

Whatever you make of that dispute, the president has made it clear that he wants to imprison Comey, a longtime nemesis because of his role in the "Russiagate hoax" during Trump's first term, and does not much care about exactly how that happens. Justice Department officials, meanwhile, are keen to pursue Trump's personal vendetta by using their prosecutorial powers as an instrument of his revenge.

The new case "would almost be funny if it weren't such an appalling abuse of the Department of Justice," Comey said in an online video on Monday. "I'm still innocent. I'm still not afraid of these people, and I still believe in the independent federal judiciary."

In the New York Times story at the center of the case, Charlie Savage and Nicole Perloth reported that Yahoo had adapted "a system intended to scan emails for child pornography" to comply with a Foreign Intelligence Surveillance Court order seeking "messages containing a computer 'signature' tied to the communications of a state-sponsored terrorist organization." Savage and Perloth cited "two government officials who spoke on the condition of anonymity."

Dustin Farahnak, a special U.S. attorney for the District of Columbia, says that story included "first-time disclosures of classified information not intended for the public domain." According to Farahnak, the government has evidence that Comey "directed staff" to discuss "specific accuracy concerns" about a prior Reuters report on the same subject with Savage. In the process of doing that, Farahnak says, those FBI officials "illegally transferred classified information."

Comey's attempt to set the record straight, according to Trump's henchmen, was a felony punishable by up to 10 years in prison under 18 USC 793(d), an Espionage Act provision that applies to an official who "willfully" shares "information relating to the national defense" with an unauthorized recipient when he "has reason to believe" it "could be used to the injury of the United States." Comey also faces a charge of conspiring to violate Section 793, which likewise carries a maximum 10-year sentence.

If Comey's alleged disclosure was such a grave crime, you might wonder, why did it take a decade to charge him? Because two prior investigations of the same incident concluded that criminal charges were not warranted.

Beginning in March 2017, John Durham, the U.S. attorney for the District of Connecticut, looked into the genesis of the Times article. The investigation found that James Baker, then the FBI's general counsel, was one of the anonymous sources. Baker said he had acted under instructions from FBI Chief of Staff James Rybacki, whom he understood to be conveying Comey's wishes. Durham's investigation included interviews, emails, phone records, and consideration of the relevant statutes. In December 2018, Comey's lawyers note, Durham "wrote a classified memorandum outlining the investigation and recommending 'NO prosecution for Baker or anyone else.'"

The following month, the U.S. Attorney's Office for the District of Columbia "opened an investigation into the same subject matter," Comey's lawyers say. That investigation "was closed without any charges in February 2020" after the office "declined to prosecute."

Given the outcomes of those two investigations, the decision to charge Comey now stinks of desperation to slake Trump's thirst for revenge. According to Comey's lawyers, the tardiness of the charges also fatally undermines the case.

Federal law generally requires that prosecutors file charges within five years of the alleged crime. But the Internal Security Act of 1950 made an exception for Section 793, saying "an indictment for any violation" of that provision "may be found at any time within ten years next after such violation shall have been committed."

The charges against Comey "should be dismissed as time barred," his lawyers argue: "Section 19 of the Internal Security Act gives the government an extended ten-year limitations period in which to charge Section 793 offenses. But as Section 19 unambiguously states, the government may invoke that extended period only by obtaining a grand jury indictment. A criminal information—which the government can issue unilaterally without grand jury involvement—does not suffice. Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed."

Whichever side prevails on that issue, no one should have any illusions that the Justice Department is pursuing the mission suggested by its name. "It remains unclear what [McFadden] will do with the matter and whether DOJ will even be able to secure an indictment—as required by the Constitution," Cato Institute legal fellow Mike Fox says in an emailed press release. "Should the matter proceed, it is unequivocally clear that this case is a vindictive prosecution—a classic case of lawfare by a weaponized Justice Department."

The post The Justice Department's 3rd Attempt To Imprison James Comey Stinks of Trump's Desperation for Revenge appeared first on Reason Magazine.

Last week, on the heels of Trump administration officials going after Democratic Rep. Ilhan Omar of Minnesota, Barack Obama issued a statement condemning the obvious and politicized abuse, explaining, “It is a basic principle of American democracy that the government can’t selectively target individuals simply because of their political beliefs or what they say.”

As part of the same statement, the former Democratic president added, “And it’s not the first time this has happened. Under President Trump, the Justice Department has repeatedly gone after those he considers his political enemies — from the Attorney General of New York, to the former head of the FBI, to members of the Federal Reserve.”

The reference to the former FBI director made a lot of sense in light of the Republican administration’s crusade against James Comey, although Obama could not have known what would happen eight days later. MS NOW reported:

Former FBI Director James Comey is facing new federal criminal charges in Washington, D.C., accusing him of unlawfully transmitting sensitive national defense information and conspiring to disclose it to a reporter, according to court documents unsealed Monday.

Prosecutors filed the two-count criminal information under seal on Oct. 5, alleging Comey improperly disclosed national defense information while serving as FBI director in 2016. The charges include unlawfully transmitting national defense information to an unauthorized person and conspiracy to commit that offense.

According to the filing, Comey was responsible for some kind of sensitive leak on Oct. 5, 2016. The crime carries a 10-year statute of limitations, which made it all the more notable that Trump’s Justice Department brought the new charges on the last possible day.

In a statement, the former FBI director said the developments “would almost be funny if it weren’t such an appalling abuse of the Department of Justice, one that we cannot become numb to.” Comey added, “Nothing’s changed with me. I’m still innocent, and I’m still not afraid of these people, and I still believe in the independent federal judiciary.”

It might seem like ancient history, but nearly a decade ago, Trump saw Comey as a political ally. In fact, in January 2017, just two days into his first term, the president appeared to literally blow a kiss at the then-FBI director at a White House event, thanks in part to Comey’s role in undermining Hillary Clinton’s 2016 candidacy.

The affection did not endure. Days later, Trump told Comey he expected “loyalty,” and after Comey did his job instead, the president fired him in the hopes of derailing the FBI’s investigation into the Russia scandal.

When Comey, a lifelong Republican, went public with his concerns and criticisms about Trump, the president came to see the ousted FBI chief as one of his chief enemies, and in April 2018, he started demanding that Comey be prosecuted for crimes that Trump struggled to identify.

It’s taken several years, but the president is seeing the results he’s long sought.

When Trump’s DOJ first charged Comey last year, it was a devastating moment for American law enforcement. MS NOW’s Ken Dilanian reported that within the DOJ, many insiders believed it was “among the worst abuses” in the history of the institution. Describing the circumstances as “shocking,” Dilanian added, “It’s hard to overstate how a big a moment this is.”

Indeed, among the most striking things about the Comey case was that it had barely a pretense of propriety. A failing, desperate and unpopular president wanted a critic to be charged, without regard for merit; he publicly demanded the indictment; and he found officials who were willing to feed his appetite for revenge. It was a tragic lesson that Americans now live in a country where the president’s political opponents are prosecuted at his command.

Alan Rozenshtein, a former DOJ official who now teaches at the University of Minnesota Law School, told The New York Times, “What we are seeing is the almost wholesale collapse of the Justice Department as an organization based on the rule of law.”

The case ultimately collapsed, but not before a federal judge blasted prosecutors for what he described as an “indict first, investigate later” attitude. Around the same time, a bipartisan group of former federal prosecutors and judges wrote in a court filing that the case was an “assault” on the justice system.

In theory, Trump’s DOJ should have been chastened by the condemnations and by the case’s failure. In practice, the shamelessly weaponized department decided to give it another try, charging Comey again in April, alleging he used Instagram to call for violence against Trump by way of a purported seashell-related code.

Legal experts were reportedly “shell-shocked” over the preposterous nature of the case, and with good reason: No fair-minded observer could defend or take seriously such spurious charges.

Nevertheless, there’s now another case.

Time will tell what, if anything, comes of the cases, though there’s no reason to assume that a conviction is Trump’s intended end point. On the contrary, in the broader context, the new indictment checks a different set of boxes for the Republican president.

First, Trump appears eager to make it clear he can orchestrate federal prosecutions based entirely on his whim and petty desires, without regard for merit or evidence. There is, for all intents and purposes, a White House enemies list, and the president seems eager to intimidate and instill fear in those whose names appear on it.

Second, Trump is sending an unsubtle signal to other federal prosecutors who might be inclined to prioritize the rule of law over the White House’s wishes. Indeed, when it comes to the pursuit of the former FBI director, the prosecutors who chose not to bring charges against Comey were replaced with those who would follow political instructions. As a second set of charges moves forward, the message to other prosecutors couldn’t be clearer: Play along with the revenge campaign or face unemployment.

And third, the Comey prosecution allows the president to demonstrate he can force his perceived enemies to endure legal, personal and financial hardships as a direct consequence of their defiance of him, even if the indictments are a joke and the defendants are ultimately acquitted.

Trying to convict the former FBI director is largely irrelevant. The corruption is the point.

This post updates our related earlier coverage.

The post The DOJ’s cases against Comey will likely fail. For Trump, a conviction may not be the point. appeared first on MS NOW.

One of the more interesting developments at the U.S. Supreme Court in recent years has been the rise of a kind of sporadic alliance in defense of civil liberties between Justices Sonia Sotomayor and Neil Gorsuch.

In 2018, for example, Gorsuch, joined by Sotomayor, blasted the Supreme Court for refusing to even hear arguments in Stuart v. Alabama, an important case about forensic evidence, criminal trials, and the Sixth Amendment right to cross-examine one's accusers.

Similarly, in United States v. Davis (2019), Sotomayor joined Gorsuch's majority opinion striking down a federal law that called for enhanced sentencing when a gun was used in connection with certain federal crimes because the law at issue was too imprecisely written to pass constitutional muster. "When Congress passes a vague law," Gorsuch wrote, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Gorsuch and Sotomayor have also been on the same page in a number of Fourth Amendment cases, though Sotomayor's overall Fourth Amendment record is arguably stronger than Gorsuch's. In Torres v. Madrid (2021), for instance, the Supreme Court held that when the police shoot a fleeing suspect, it still counts as a "seizure" for Fourth Amendment purposes even if the suspect kept on the move after being shot. "The application of physical force to the body with the intent to restrain is a seizure," the Court held, "even if the person does not submit and is not subdued." Sotomayor joined that pro-civil liberties decision; Gorsuch, along with Justices Clarence Thomas and Samuel Alito, sided with the officers and voted in dissent.

Fortunately, the Gorsuch-Sotomayor band was back together last week to make some noise in support of the Bill of Rights in a dispute that pitted property rights against police powers. As Reason's Billy Binion reported, the Supreme Court declined to hear a case challenging a lower court's "categorical rule" that "property destroyed in the exercise of [a state's] 'police power' is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner."

Sotomayor, joined by Gorsuch, strongly implied that she thought the lower court's rule was unconstitutional, though she accepted that "further percolation" on the issue was needed before the Court should step in. "Where, as here, a person alleges a 'classic taking in which the government directly appropriates private property for its own use' or to pay an outstanding debt, like a tax lien," Sotomayor wrote, "the talismanic invocation of the State's 'law enforcement authority,' may be insufficient to avoid the requirement of just compensation." (Citations omitted.) Sotomayor then urged the lower courts that are "considering this issue to take care that due deference to state police powers does not eclipse constitutional rights."

Just as Gorsuch's Fourth Amendment record has its blemishes, Sotomayor's record on property rights has also been less than impressive at times. So it is doubly welcome to see these two justices back in the trenches together on this particular civil liberties front.

Elsewhere in the Law

Writing at SCOTUSblog, Anastasia Boden, a senior attorney at the Pacific Legal Foundation, has an interesting article about the Supreme Court's landmark 1926 decision in Euclid v. Ambler, in which, as Boden put it, the Court ruled in favor of a town's "power to pass comprehensive zoning, and against a local developer who had argued the town's plan exceeded the city's police power and destroyed the property's value." In effect, the Court's ruling was "the birth of modern zoning."

One of the things that has long fascinated me about Euclid v. Ambler is the fact that the opinion was authored by Justice George Sutherland, who is probably best remembered today for his role as a leading judicial foe of President Franklin Roosevelt's New Deal. In Euclid v. Ambler, however, Sutherland endorsed a view of regulatory authority that has been celebrated by liberal academics as "a model of pragmatic and well-balanced Progressive jurisprudence."

I suppose we might call it an irony of legal history: The intellectual leader of the Supreme Court's anti–New Deal bloc actually left a greater mark on the law by shoring up the immense power of city planners.

The post Gorsuch and Sotomayor Unite in Another Civil Liberties Case appeared first on Reason Magazine.

It’s time to see these horrid crimes for what they are: patterned, persistent, predictable and preventable.

On Aug. 26, 2024, in Fort Myers, Florida, I answered a knock at my door to find a police officer waiting to arrest me. My first thought was my 12-year-old daughter, whose room was nearby. “Can she hear this?” I wondered. “Does she know what’s going on?” I had answered the door in my flip-flops, T-shirt and shorts, not realizing it would be all I had to keep me warm as I was thrown into an ice-cold jail cell, then into a steel cage in the back of a police van and finally locked up in a second jail. They told me I was being arrested for attempting to lure a child — roughly the same age as my daughter — from a McDonald’s in Jacksonville Beach, a town 300 miles away that I had never been to.

The whole time, I couldn’t stop thinking about when I would see my wife and daughter again. How would I explain why I was under arrest for a crime I didn’t commit in a city far across the state? Especially when I didn’t even understand what was going on myself.

The police ran my two vehicles through a database of license plate readers, which didn’t show my car anywhere in the entire county, much less near the restaurant. Yet based on the say-so of glitchy AI, they ruined my life.

After pledging the title to my truck for bond, I left the police station completely traumatized. I later learned that the Jacksonville Sheriff’s Office uploaded a picture of the McDonald’s security footage into an artificial intelligence facial recognition system, which erroneously flagged me as a possible match. Jacksonville Beach Police then conducted a photo lineup not with the victim, but with a McDonald’s employee who was not an eyewitness.

Meanwhile, the officer leading the investigation ignored a mountain of evidence of my innocence. I have a prominent scar on my face that the suspect didn’t have. The same employee who picked me out of the photo lineup also said the suspect was a “regular customer,” but I live more than five hours away. The police ran my two vehicles through a database of license plate readers, which didn’t show my car anywhere in the entire county, much less near the restaurant.

Yet based on the say-so of glitchy AI, they ruined my life.

Until I was arrested for a crime I did not commit, I was a successful commercial crabber. I’ve loved crabbing since I first tried it as an 8-year-old kid hanging out on the Maryland docks. In the 40 years since, I’d built a beautiful life. I had a fulfilling career on the water, and an incredible wife and daughter and great friends. Anyone who knew me would tell you that I was a family guy. I was happy. All that changed after the police hauled me to jail and posted my mugshot online.

Weeks later, the Florida state attorney’s office dropped all charges. Now, I’m suing the officers, the city of Jacksonville Beach and the Jacksonville Sheriff’s Office. In addition to damages, I am asking the court to order the city and the sheriff’s office to overhaul their procedures for using facial recognition technology.

It had taken two months to prove my innocence and my mugshot stayed on a police department website for nearly a year. At first, I could barely leave the house, terrified that someone would confront me for this revolting crime or see me with my daughter and call the police. Even when I was with people who knew I had been falsely accused, I couldn’t stand them looking at me and wondering even for a second, “Maybe he actually did it.”

I fell behind on rent, and when I was finally able to get back out on the water, it was too late. My seafood buyers had moved on. I was hemorrhaging cash. I had to turn my back on the ocean and start doing lawn care to provide for my family. Even harder than finding the money to rebuild my business is rebuilding the trust and credibility I lost because of the government’s colossal screw-up.

if there is one thing I am not, it’s a quitter. I will not quit until I get justice and the government makes amends.

When I told my daughter about the reason for the arrest, something I’d waited to do until after I had proven my innocence, she couldn’t stop laughing. To her, the accusation was that outrageous. While she laughed, I cried, just grateful to know that she was still in my corner and saw me for the person I was: her loving, caring, happy-go-lucky dad.

I am the first to admit that I am no angel. I’ve done stupid stuff in my past — gotten in some fights, spent some nights in jail. Any of my friends would agree that if there’s a loudmouth at the bar, I’m the one to tell him off. But I would never hurt a child. Ever.

When I’ve gotten in trouble, I’ve paid my debt to society. But the government doesn’t want to pay theirs. When I got into a bar fight, within a day I was hauled in front of a judge. Yet more than two years after my wrongful arrest, no one has even apologized, much less been held accountable in any court of law. And nothing has changed. I am still suffering. All because some cops used shoddy AI facial recognition, ignored contradictory evidence and, instead of protecting little girls in Jacksonville Beach, arrested an innocent guy in Fort Myers.

The government keeps trying to sweep what they did to me under the rug, hoping that I will give up and move on. But if there is one thing I am not, it’s a quitter. I will not quit until I get justice and the government makes amends. That’s why I have turned to the courts. They must hold the police accountable for altering my life forever. The record is clear. Justice should not take years to impose.

(Editor’s note: The Jacksonville County sheriff’s department told Wired Magazine, “Due to pending litigation, we would be unable to comment further on the incident.”)

The post Florida police ruined my life with a false AI match. Now I’m demanding justice. appeared first on MS NOW.

Paul Skalnik was one of the most prolific jailhouse snitches in American history. A new best-selling book, Catch the Devil, chronicles Skalnik's career helping prosecutors secure dozens of convictions—despite being a serial liar and criminal. His cartoonishly long rap sheet included elaborate frauds, multiple grand thefts, and sexual assault of a child; at various times, he passed himself off as a Southwest Airlines executive, a high-powered attorney, and a Vietnam War hero. In July, Reason's Billy Binion interviewed author Pamela Colloff, a staff writer at The New York Times Magazine and reporter at ProPublica.

Q: How is it possible for someone with such an intense history of dishonesty to still earn the state's trust for decades?

A: I think you hit upon the big question of the book, right? Skalnik was a former police officer himself, so he sort of knew how the game worked. When he got to whatever county jail he ended up in, he could size up whoever it was that prosecutors most wanted a conviction against. And he would produce these incredible quote-unquote "confessions." And in return for his testimony about those confessions, he would usually be let free.

You can imagine how there were police and prosecutors who bought this. I think what becomes more difficult as he's used more widely in [Pinellas County,] Florida—where he helped send upward of 40 men to prison—at what point does someone say, "What are the odds that this guy in the jail has a better batting record than our best detectives?" No one ever says that.

Q: The book covers a lot of disturbing cases, but the one central to it is a murder case in Florida. Can you set the scene?

A: There was a 14-year-old girl named Shelly Boggio who was found in a body of water. She'd been stabbed over 30 times, and the assumption was that she'd been sexually assaulted.

The investigation quickly narrows down to a man named Jack Pearcy, who had a long history of violence against women. He was the last person seen with Boggio. When he's interviewed by investigators, he realizes they know too much. So he pivots to saying that he had his housemate—Jim Dailey—with him that night, and that it was Jim who committed this crime. Jim did not have that kind of record, and there's no physical or forensic evidence tying him to the crime, or any motive whatsoever.

Skalnik is brought in very shortly before the trial starts. He is moved in the jail to be close to where Jim Dailey was. Within 24 hours, he says he has procured Dailey's confession—a total stranger who's awaiting trial. It was a story that really played upon jurors' sympathies. He talked about how Jim Dailey had supposedly told him about stabbing Shelly Boggio to death and how she'd been staring at him in this pleading way, but she wouldn't die. It's this horrific image, and he is sentenced to death.

Q: What makes you think Dailey is actually innocent?

A: There have been over 200 people in the U.S. who were sentenced to death who have since been exonerated. We know that jailhouse informants—who are notoriously unreliable—are a factor in 25 percent of those wrongful convictions.

As far as Jim's case, there's no there there. When you see a case with three jailhouse informants, no physical evidence, no motive, and your quote-unquote "eyewitness" is the main suspect in the case? There are a lot of questions.

Q: To me, the secondary theme was that when credible evidence may exonerate someone after a jury has rendered a verdict, it is depressingly difficult to get another chance.

A: I am obsessed with this idea that the system is built to compound its own errors. When new evidence comes out—and there's a lot of new evidence that comes out over the years that really points toward his innocence—you would think that would be enough. For some very good reasons, a jury verdict is sacrosanct. But what you see is that courts really look backward at precedent and jury verdicts rather than forward at new evidence.

Jim gets terrific attorneys in this case—too late. They do incredible work, and it doesn't matter. Too many judges have rubber-stamped this testimony by Paul Skalnik. There's no way for the courts to essentially say, "Hey, let's go back and look at this holistically and see if any of this makes sense." It was shocking to me to see that.

This interview has been condensed and edited for style and clarity.

The post Pamela Colloff on America's Biggest Jailhouse Snitch, Wrongful Convictions, and Criminal Justice appeared first on Reason Magazine.

Eight years ago, Scott Hancock, then 28, helped a 19-year-old acquaintance, identified in court records as T.G., buy fentanyl. At her request, Hancock, who had been addicted to opioids for years, got in touch with his drug dealer, who gave him five capsules that he handed over to T.G. in exchange for $20. Then Hancock gave the money to his dealer. Because T.G. subsequently died from a fentanyl overdose, Hancock is serving a 20-year sentence at a federal prison in Illinois.

That was the mandatory minimum sentence under 21 USC 241, which prescribes penalties for drug distribution resulting in death. Although that law has been on the books since 1986, the dramatic increase in fentanyl-related deaths during the last decade prompted a surge in federal drug prosecutions involving overdoses, which rose by 44 percent between FY 2019 and FY 2023. Hancock's case was part of that trend, and it prompted his mother, G.D. Hancock, a retired finance professor, to delve into the subject, resulting in a database that sheds light on what happens when the government treats accidental deaths as homicides.

So far, Hancock has identified 2,930 sentences in such cases since 2010. That includes 1,399 federal cases and 1,531 state cases, which rely either on laws dealing specifically with drug-induced deaths or on more general statutes addressing felony murder, "depraved heart" homicide, or manslaughter.

Sentences of 20 years or more were pretty common at the federal level, accounting for 37 percent of the cases, compared to 13 percent at the state level. The vast majority of the cases (84 percent) were resolved by plea deals. That is not surprising, given the potential consequences of going to trial. While the median sentence for defendants who pleaded guilty was nine years, it was 20 years for defendants who insisted on making the government prove its case.

Hancock's tally is based on news reports, court records, announcements by state and federal prosecutors, her own "case files and research," and "cases sent in by families, lawyers and researchers." A separate database compiled by researchers at Northeastern University, drawn from news reports, includes 3,264 cases involving drug-induced homicide from 2011 to 2022.

These prosecutions are morally nonsensical. They treat people who voluntarily consume drugs as helpless victims of supposed predators who gave them the drugs they wanted. By similar logic, bartenders and liquor store owners should be held criminally liable whenever a customer succumbs to alcohol poisoning or the long-term effects of heavy drinking. The main difference is the legal status of the drug, which is arbitrary, politically determined, and historically contingent. And while illegal drugs pose special hazards, that is a result of prohibition, which creates a black market where product composition is highly variable and unpredictable.

Charging people with homicide based on accidental overdoses would be illogical and unjust even if the defendants were limited to actual drug dealers. But you can be charged with drug-induced homicide even if your "trafficking" consisted of nothing more than sharing drugs with a relative, romantic partner, friend, or acquaintance. Based on the information Hancock was able to glean, she counts 241 cases where the person who died from an overdose was the defendant's friend, partner, or family member, and other sources suggest such prosecutions are common.

The Northeastern University researchers analyzed a sample of 213 online news reports from 2000 to 2017. They found that 50 percent of defendants charged with drug-induced homicide were caretakers, family members, friends, or partners of the people who died.

In 2021, when the Pittsburgh Tribune-Review examined Pennsylvania prosecutions for "drug delivery resulting in death" (DDRD), it described a case involving "a Westmoreland County man" who "died from an overdose of drugs he'd gotten from a friend of a friend of a friend." Although "the drugs ultimately came from a man called 'Bee' in Penn Hills," the paper noted, "the three individuals between the victim and Bee were all charged" with DDRD, a first-degree felony punishable by up to 40 years in prison.

The Tribune-Review described several other DDRD defendants, including "a Delmont woman" who "called paramedics when she found her boyfriend unresponsive in their bathroom"; "two friends" who bought heroin for a man who overdosed at a Taco Bell; and "a Monessen woman" who "sent her cousin to buy a brick of heroin" and "sold five stamp bags to a friend, who then sold four bags to an Elizabeth Borough man who died from a fatal overdose."

The Tribune-Review also found that "many facing these charges are relatively low-level dealers." Jonathan Fodi, a defense attorney and former prosecutor, told the paper he and his colleagues had never seen a DDRD case involving a high-level dealer. Given the need to prove a link between the defendant and the person who died, that is not surprising. But that situation compounds the injustice of treating such deaths as homicides, since low-level dealers often do not know exactly what is in the drugs they are selling.

A 2002 analysis of 32 drug-induced homicide prosecutions, published in the New Jersey Law Journal, found that "25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner." According to a 2017 report by a Wisconsin TV station that looked at the 100 most recent prosecutions for drug-induced homicide in that state, "nearly 90% of those charged were friends or relatives of the person who died, or the lowest people in the drug supply chain." When the Chicago Tribune examined drug-induced homicide cases filed between 2011 and 2014, it found "the defendant was typically the last person who was with the person who overdosed."

Even people who support the war on drugs should be able to recognize the injustice of sending people to prison for 10 or 20 years based on their tangential roles in deaths they neither caused nor intended. And far from making such deaths less likely, that policy impedes potentially lifesaving medical assistance because the risk of a homicide charge is apt to discourage bystanders from calling for help. That daunting deterrent undermines the goal of "Good Samaritan" laws that are supposed to shield 911 callers from criminal charges in such situations.

The official justification for these prosecutions is completely disconnected from the reality of the cases. "Deaths from illicit drugs, especially fentanyl, are at historic highs," the Drug Enforcement Administration (DEA) said in a 2023 press release. Because the DEA is "committed to protecting Americans and saving lives by pursuing those responsible," the agency explained, it aims to "make sure as many drug traffickers involved in those deaths as possible get an appearance in front of a judge."

As an example of that strategy, the DEA cited Scott Hancock's case, describing him as a "trafficker" who was "found guilty of providing the drugs that killed a 19-year-old woman in 2018." Given the details of that transaction, it is hard to see the logic here. Sending someone like Hancock to prison for 20 years has nothing to do with "saving lives."

The post How Helping Someone Buy Drugs Can Send You to Prison for 20 Years appeared first on Reason Magazine.

Earlier this week, Mississippi Attorney General Lynn Fitch said that the police shooting of 1-year-old boy Kohen Wiley in a Walmart parking lot earlier this year was a "justified" use of force. On Thursday, Sgt. Hunter Foster, the Senatobia police officer who shot Wiley, resigned from the department.

Foster's resignation comes after a tumultuous week for the Mississippi attorney general's office and the Senatobia Police Department (SPD). After Finch ruled the shooting a justified use of force on Monday, DarkHorse Press leaked footage of the body camera video from officers at the scene, along with Walmart surveillance video. On Thursday, the Mississippi Department of Public Safety released more footage, including from the bodycam of Foster, which WLBT News obtained. Together, the footage shows a less cut-and-dry incident than what statements from Fitch and the Mississippi Bureau of Investigation imply.

Surveillance footage shows Kohen's mother, Vellesiya Wiley, and her friend running to their car from the Walmart entrance as Wiley holds baby Kohen in her arms. Police officers soon enter the frame chasing the duo. After getting in the car, Wiley's friend backs out of the parking spot and hits another parked car. The officers crowd around the vehicle, drawing their guns and shouting "stop." Foster places himself directly in front of the vehicle, his gun primed and ready. The driver puts the car in gear and accelerates toward the officers. According to his bodycam footage, Foster, one of the two officers in the vehicle's path, lets off three shots as he hops out of the way and continues to aim his gun at the car as it passes him. It appears that at least one of the shots pierced the front windshield, while the others came through the window on the passenger side, where Kohen was sitting on his mother's lap. The car then drove away, and officers gave chase. 

After reviewing the footage, Ben Crump, the Wiley family attorney, said during a Thursday press conference that the police officers "never ever should have drawn their weapons for a misdemeanor shoplifting allegation."

"The shot from the side of the vehicle was not justified," he added. "[Foster] was not in harm's way when he shot from the side." He claims that the shot that killed Kohen came from the side, corroborating an independent autopsy the family conducted.

Martin Zummach, an attorney for Foster, told the Associated Press that the driver "tried to kill" his client and other officers at the scene, giving Foster "no choice but to fire his weapon." He said it was "strictly muscle memory" that led Foster to fire those additional shots, according to WSB News. "The one that went through the side glass that everybody's going crazy about? That's because she was moving so fast," he said. 

Regardless of whether the car was "moving so fast," Foster, who moved out of the vehicle's path, clearly had the choice not to fire his weapon. But instead of de-escalating the situation, the police officers decided to draw their guns and step in front of a vehicle, turning an incident involving an alleged shoplifter fleeing a misdemeanor into a life-or-death game of chicken.

The post Mississippi Cop Who Shot 1-Year-Old Kohen Wiley Resigns After State Calls Shooting 'Justified' appeared first on Reason Magazine.

Each week, MS NOW legal analyst Andrew Weissmann, co-host of our “Main Justice” podcast, answers legal questions from our audience in our MS NOW Membership exclusive series, “Answers with Andrew Weissmann.”

In the video above, Weissmann addresses a question from MS NOW Member Linda S. from Ormond-by-the-Sea, Florida: “Can Congress stop Trump from purchasing diesel from Russia?” Watch for Weissmann’s insights on the statute Congress passed to address this issue — and his view of which branch of government isn’t functioning.

Other reader questions Weissmann addressed this week:

• Although Trump has immunity, I thought that it only pertains to his official duties as president; not personal wealth or personal crimes not associated with the duties of his position. Is that correct? — Barbara W. from West Jordan, Utah
• Since the SCOTUS6 ruled that the president has immunity for anything he does in his position as president, how can he be impeached? Do we the people have any recourse? — Chaiah J.
• The president has wide pardon powers. If he pardons someone for financial crimes, can the funds be reclaimed by the government (assuming a different party takes back the White House)? — Thomas L. from Tennessee

• U.S. attorneys’ offices are divided between a criminal and civil division. Do the president’s pardons eliminate the DOJ Civil Division’s ability to go after individuals once Trump leaves office? — Mike S. from Basking Ridge, New Jersey

• I’m asking about the DOJ’s longstanding, unspoken practices — for example, avoiding prosecutorial action before an election. Clearly, these practices ought to be turned into policies or law. So what is required in order for that to take place? Should it be Congress, the DOJ or someone else? — Peggy C.

• When President Trump publicly contradicts his own administration’s arguments in court, as we’ve seen with the D.C. golf courses, do government attorneys have an obligation to correct the record, even if doing so undermines their case? And is Trump’s own behavior ultimately undermining the broader conservative legal effort to expand presidential power? — MS NOW Member

Become an MS NOW Member to watch all of Weissmann’s answers, get the chance to submit your own questions and explore full episodes of all the MS NOW Membership exclusive series.

The post Can Congress stop Trump from buying Russian diesel fuel? appeared first on MS NOW.

The reality 40 years later is that Congress made the drug penalties permanent law, while drug treatment was left to be determined during annual budget fights.