Justice According to Trump

The Justice Department has moved to drop the last remaining January 6 insurrection criminal matters: the Oath Keepers and Proud Boys seditious conspiracy cases. It’s a gratuitous move. On the first day of his second term, Trump issued full pardons to more than 1500 people who overran the Capitol on January 6. Then he commuted the sentences of 14 of the Proud Boys and Oath Keepers defendants, the people convicted of the most serious January 6-related offense, seditious conspiracy. Getting clemency got them out of prison, but it didn’t erase their convictions.

So earlier this week, Trump’s U.S. Attorney for the District of Columbia, Jeanine Pirro, moved to vacate the convictions of prominent insurrectionists including Stewart Rhodes and Ethan Nordean. She wrote that doing so was “in the interests of justice.”

 

Here’s what that means: The government wants to pretend the indictments didn’t occur and juries never convicted these defendants on some of the most serious charges that can be leveled against people in a democracy. Vacating a conviction means it never happened.

Prosecutors need a judge’s permission to dismiss a case after it has been indicted. These cases are on appeal, and the government filed its request to vacate before the defendant/appellants’ first briefs are due. Pirro explained “The government respectfully requests that, before the defendants are required to file their opening brief, the Court vacate their convictions under 28 U.S.C. § 2106 and remand so that the government may move to dismiss the indictment with prejudice.” A defendant’s conviction isn’t final until it has been affirmed on appeal, and these convictions haven’t been, so it’s still possible to do away with them. The government argues that judges “routinely” grant these types of motions.

One might hope that the judges here will inquire further into precisely how fulfilling the government’s requests serves “the interests of justice.” But rejecting them could easily result in mandamus orders from a higher court requiring the judges to do so. It’s likely Trump will get his way.

This is what Donald Trump does for his friends—the people willing to plot a violent insurrection in hopes he could hold onto power after losing the 2020 election. He treats the people he thinks of as enemies very differently, but the stench of corruption is the same.

The current example is former CIA Director John Brennan—one of the ultimate catches on Trump’s revenge prosecution list. Trump became convinced during his first term in office that Brennan had been involved in some shadowy plot against him, and although nothing in the extensive “Crossfire Hurricane” investigation carried out by then AG Bill Barr and Special Counsel John Durham bore that out, Trump apparently still holds a grudge. Trump has always been sensitive to the 2017 intelligence assessment that found ​Russia interfered in the 2016 presidential election in order to help him, and since Brennan was at the CIA when that happened, Trump seems to hold him responsible. The intelligence assessment appears to have been accurate; both the FBI and a bipartisan Senate Committee agreed.

Brennan is now the target of an investigation in the Southern District of Florida, which appears to be amping up, despite the fact that the career prosecutor who has been running that investigation had been resisting “pressure to quickly bring charges against the former CIA director and prominent critic of President Donald Trump,” according to CNN. She reportedly questioned the strength of the evidence and was subsequently removed from the case. She will be replaced by Joseph diGenova, a former U.S. Attorney during the Reagan administration. diGenova is one of the lawyers who helped with Trump’s effort to overturn the 2020 election.

CNN went on to report that the Justice Department said in a statement that it is a routine practice to move attorneys around on cases “so offices can most effectively allocate resources.” The statement continued, “It is completely healthy and normal to change members of legal teams.” That’s unlikely to fool anyone. It’s counterproductive and wasteful of time and deep knowledge about the evidence in a case to make a move like this, and it doesn’t happen in the absence of solid reason. Here, it appears to be happening, as we saw in the Eric Adam’s case in New York, and the cases involving Jim Comey and Letitia James in the Eastern District of Virginia, to remove an unwilling prosecutor and replace her with a more compliant one. We don’t yet know what the potential charges might look like here, and the government seems confident, with the matter proceeding in Judge Aileen Cannon’s district. But it’s hard to imagine there’s anything of substance here.

The polar opposite treatment of these two cases clarifies just how defunct the Justice Department is. During Trump’s first term in office and his bid for reelection, I repeatedly spoke of the danger he posed to our criminal justice system and hence to our democracy, the risk he would turn us into a banana republic where an authoritarian leader uses the criminal justice system to reward his friends and punish his enemies. And here we are. This is what the stakes are in the midterm elections. Because a president who is willing to do all of this—and has a party behind him that is willing to be complicit—will try to do whatever it takes to hold onto power. It’s a moment where no one can afford to stay on the sidelines.

This isn’t about one case or a handful of defendants. It’s about whether the rule of law still has meaning, whether Trump will succeed in eroding it into yet another political tool; applying it differently to people depending on who they are—and whose side they’re on. When a president can make convictions disappear for his allies while leaning on prosecutors to go after his critics, the damage isn’t just theoretical, it’s already happening in front of our eyes. And once that line is crossed, it doesn’t easily uncross itself. It’s on all of us to see it clearly and refuse to look away.

Thanks for being here with me at Civil Discourse and making it possible, through you subscriptions, for me to write the newsletter.

We’re in this together,

-Joyce Vance

 

Killing History: DOJ’s Office of Legal Counsel (OLC) declares the Presidential Records Act unconstitutional

 

“Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.”

―George Orwell, 1984

Enacted in 1978, in the wake of Watergate, the Presidential Records Act (PRA) makes all records created or received by the President, Vice President, and their staff in the course of official duties the property of the United States government. They are explicitly not the personal property of the officials whose desks they cross. The law mandates they be transferred to the National Archives and Records Administration (NARA) as soon as a President leaves office.

Remember the stories during Trump’s first term in office about how he would tear his papers up into tiny shreds, forcing his staff to retrieve them and tape them back together? That happened because of the PRA.

The PRA is the law. It’s clear. Presidents are advised about the requirement when they take office. So, the reports that Trump was destroying his records should have been taken as an early warning sign of his utter disregard for the law. Instead, they were treated more like a cute affectation, a sign that this was an outsider who was new to being a political insider. At most, he was a little difficult to work for.

The report in Politico began like this: Solomon Lartey spent the first five months of the Trump administration working in the Old Executive Office Building, standing over a desk with scraps of paper spread out in front of him.

Lartey, who earned an annual salary of $65,969 as a records management analyst, was a career government official with close to 30 years under his belt. But he had never seen anything like this in any previous administration he had worked for. He had never had to tape the president’s papers back together again.

Armed with rolls of clear Scotch tape, Lartey and his colleagues would sift through large piles of shredded paper and put them back together, he said, “like a jigsaw puzzle.” Sometimes the papers would just be split down the middle, but other times they would be torn into pieces so small they looked like confetti.

Trump seems to have learned a lesson from all of this, but it’s the wrong one. That perception may also have been shaped when the National Archives contacted him after he left office to seek the return of classified documents still in his possession. We all know how that ended up. So, this term, Trump had his law firm, the government agency formerly known as the Justice Department, issue an opinion declaring the PRA unconstitutional. You can find it here, running to 52 pages.

“You have asked,” it begins, “whether the Presidential Records Act of 1978 (“PRA” or “Act”) is constitutional.” The answer follows immediately: “We conclude that it is not.” There are two reasons, either of which, standing on its own, would have been sufficient to undo the PRA. The opinion explains that they are “interlocking.” 

The Act “exceeds Congress’s enumerated and implied powers”, and it also “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.” In other words, we’re watching another power grab by this administration, a stratagem to expand the power of the executive at the expense of Congress, while claiming it’s the other way around.

That opinion came from the Office of Legal Counsel at DOJ. Part of that office’s job is to provide legal advice to the President and executive branch agencies. It issues formal opinions; reviews proposed executive orders and legislation for constitutionality and resolves legal disputes within the executive branch. Its decisions are authoritative and they bind executive branch employees, not just the folks at DOJ.

The current Assistant Attorney General in charge of the Division is T. Elliot Gaiser. He clerked for a trifecta of Federalist Society hardliners: Supreme Court Justice Samuel Alito, Judge Neomi Rao on the D.C. Circuit, and Judge Edith Jones on the Fifth Circuit. He graduated from Hillsdale College, known for its conservative Christian principles. Gaiser became Ohio’s solicitor general in 2023 and was billed by the state’s Republican AG at the time as “a master craftsman of ironclad legal arguments rooted in originalist principles and constitutional restraint.”

Gaiser’s opinion regarding the PRA concludes that it “unconstitutionally intrudes on the independence and autonomy of the President.” The result is that “the President need not further comply with its dictates.” But the Supreme Court held that a nearly identical law was constitutional almost 50 years ago when President Nixon, upon leaving office, challenged the first version of the PRA. The OLC opinion fails to explain why that case is no longer good precedent. Gaiser seems to have simply, with the stroke of a pen, overruled the Supreme Court.

The American Historical Society (AHA) and American Oversight, a nonprofit that promotes transparency in government, promptly sued. They begin by writing, “This case is about the preservation of records that document our nation’s history, and whether the American people are able to access and learn from that history.” 

They explain that both plaintiff organizations and their members “rely heavily on access to historical records about the inner workings of the federal government to undertake their missions” and that their ability to do their work “will be significantly harmed by Defendants’ actions.”

The AHA explains that if the PRA comes to an end, they will no longer have access to the information that makes it possible for them to “create the historical record of presidential activities,” which would leave them with an “incomplete historical record by which to professionally research, produce scholarship on, and teach U.S. history.” 

They point out that once lost, the records and the opportunity to record history are gone. AHA has some gravitas in this regard: It was their 1910 request to Congress following the discovery that many records from the 1800s were missing that ultimately led to the creation of the National Archives, according to their lawsuit.

The case will be heard by federal District Judge Beryl Howell in the District of Columbia. The plaintiffs are asking the court to declare that OLC got it wrong and that the PRA is constitutional. They want an injunction that will prevent Trump from taking Presidential records away with him when his time in office comes to an end. The relief they are asking for would explicitly prevent him from relying on the OLC opinion.

The Justice Department will have to defend its opinion in court. Judge Howell has already ruled against the Trump administration in two cases: one involving a law firm Trump targeted by an executive order, and another rejecting the government’s assertion that it could make warrantless immigration arrests in cases where there was no evidence the target was a flight risk. 

Previously, she ruled in 2019 that DOJ had to turn over sealed grand jury evidence from Special Counsel Robert Mueller’s investigation to House investigators. In her opinion, she called the arguments the administration mustered to oppose releasing the evidence a "farce."

None of these cases presupposes how she will rule in the current one; the issues before her are different. But she has a strong predilection for enforcing the bounds of the executive branch’s constitutional authority—the issue that will be presented here. Intuitively, it makes sense to preserve our history. The question the administration should have to answer here is: Why wouldn’t it?

Back to Orwell: “Nothing exists except an endless present in which the Party is always right.”

Thank you for supporting Civil Discourse and helping to create a community of well-informed people who care about the future of democracy. Your paid subscriptions make it possible for me to do this kind of analysis consistently—and to keep it accessible for a broader audience.

We’re in this together,

-Joyce Vance

 

The Constitution Is Clear on Birthright Citizenship. The Question Is Whether the Court Will Be

 

Sometimes showing up is a mistake. Donald Trump made that mistake today, becoming the first president to sit in on an oral argument before the United States Supreme Court, which heard the birthright citizenship case, Trump v. Barbara, today. He only made it through his side of the case, leaving midway through the argument shortly after the ACLU’s Cecilia Wang began, which just isn’t done.

Trump showed just how poorly he understands the dynamic with the Supreme Court. These aren’t people who need his approval. “Thank you again. Thank you again. I won't forget it”—the words Trump uttered to Chief Justice John Roberts at the State of the Union Address in 2025—make the justices cringe. This is why they have life tenure, so they can rule as they will, not as the person or the party who put them on the bench wants them to. We all understand the times we live in and the concerns about some members of this Court. 

But Trump’s brazen attempt to intimidate the Justices is the worst possible way he could go about it, and it showed. Trump can attack justices in his social media posts like he did over the weekend (“The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!). ‘Dumb Judges and Justices will not a great Country make!’”) and again today (below), but ultimately, there’s not much he can do if he doesn’t like their decisions. They know that. And the birthright citizenship case is this term’s nadir, a train wreck of a case whose weaknesses were on full display today.

Solicitor General D. John Sauer’s opener: Birthright citizenship is about slaves, not illegal aliens. Children of temporary visitors aren’t citizens. “Unrestricted birthright citizenship” contradicts practice in other countries.

Sort of.

The Fourteenth Amendment, which, if you recall our earlier conversations, is the constitutional source of birthright citizenship, was the fix for the injustice worked by the Dred Scott case. Its rule is clear: People born in the United States are citizens, with rare exceptions for people like babies born to foreign diplomats who aren’t subject to U.S. law. 

The Court underscored that principle in United States v. Wong Kim Ark in 1898, holding that a child born in the United States to non-citizen parents automatically acquires U.S. citizenship at birth. That’s been the state of the law and our understanding of it ever since.

Donald Trump made his views on the subject plain before he had even returned to the White House: “We’re going to end that because it’s ridiculous.” That’s what he told NBC’s Kristen Welker during an interview for Meet the Press. The executive order he issued upon returning to office is inconsistent with the plain language of the 14^th Amendment, which the Supreme Court has always interpreted as doing precisely what its language suggests: guaranteeing citizenship to people born in this country.

Every serious legal challenge since then has run into the same wall: the Constitution. This one seems headed in that direction too. And Trump did nothing to improve the case by showing up in such a rank, performative manner. He could have sat in the Oval Office and listened to the argument online like the rest of us.

As for Sauer’s argument that birthright citizenship “contradicts” how other countries handle it, it took me a moment to pick my jaw up off the floor after that claim. Did the ultra-conservative Solicitor General of the United States really encourage the justices to take into account other countries’ laws that conflict with our own? That’s strictly verboten in Federalist Society parlance. What’s next? An appeal to Sharia Law? Gasp. (Seriously, I just can’t overstate how hypocritical this is).

Conservative justices, including Antonin Scalia, Clarence Thomas, and Samuel Alito, have all strongly opposed using foreign law to interpret the Constitution, rejecting it as undercutting our democratic sovereignty. 

Conservative justices objected to the use of foreign precedents when they were the dissenters in cases involving the death penalty for juveniles and laws regulating sexual conduct. But now, and in a case where it’s the opposite of U.S. law, the Solicitor General felt free to call upon foreign precedent.

Chief Justice Roberts at his confirmation hearing: “In foreign law you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.” Justice Alito at his: “We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.”

I’m belaboring this relatively minor point from the argument to show just how far this Justice Department, including the Solicitor General’s office, which is uniquely powerful and traditionally independent, has gone off the rails in service of what Donald Trump wants. Sauer’s willingness to wade in with this argument shows how willing this Justice Department is to contort itself into pretzel logic in service of Trump and abandon long-established conservative beliefs. But it’s also unlikely that this argument scored points with any of the justices who weren’t already inclined to go along with it no matter how contrary to existing law. It was a show for the audience of one who reclined in the courtroom, where he didn’t belong.

And in any event, isn’t the point that birthright citizenship is uniquely American and helps define our multicultural democracy and its values? We are a country like none other, fueled by immigrants and immigration. Birthright citizenship is part of our unique promise, a bright promise, not something to be afraid of, at least for those of us who welcome new people, new ideas, and new infusions of culture, food, and traditions. People who aren’t afraid of the promise displayed on the Statue of Liberty from Emma Lazarus’ 1883 poem:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Justice Gorsuch worried about the difficulty of determining each person’s immigration status based on indeterminate factors and about whether Congress could further restrict who qualifies for citizenship in the future. Justice Barrett was concerned about the fate of children born and raised here with no ability to influence their place of birth. Justice Alito asked about the “humanitarian” issues that would arise for people who have lived their lives here.

There was this exchange:

JUSTICE GORSUCH: “Do you think Native Americans today are birthright citizens under your test?”

SOLICITOR GENERAL SAUER: “Uhh... I think so? I have to think that through.”

And this one:

SAUER: “We’re in a new world where 8 billion people are one plane ride away from having a child who’s a US citizen.”

CHIEF JUSTICE ROBERTS: “It’s a new world. It’s the same Constitution.”

You get the idea of how the argument went. It was a bad day for the government, but it was their own fault in insisting on a case that is contrary to law and that no solicitor general exercising independent judgment would have allowed to go forward.

At the end of her argument for keeping birthright citizenship as it now exists, Justice Kavanaugh asked Wang about her path to victory: “I think Mr. Sauer acknowledged that, and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So that could be a -- if we did agree with you on Wong Kim Ark, that could be just a short opinion, right, that says the better reading is Respondents' reading, government doesn't ask us to overrule, affirmed? Is that …”

Wang responded, “Yes.”

This is how experienced Supreme Court advocates do it. The answer was perfect.

Kavanaugh continued, pointing out that Wang made one argument based on a statute and one based on the Constitution. He asked Wang which of her arguments the Court should rule on, pointing out that the Court typically rules on a statutory basis when that is sufficient to decide a case, rather than interpreting the Constitution, which it does only when necessary.

Kavanaugh: “Why would we address the constitutional issue…our usual practice, as you're well aware, of course, is to resolve things on statutory grounds and -- and not to do a constitutional ground.”

Wang: “Sure. You know, I think we obviously have these two paths to a win here. We're happy to win on either or both of them.”

There was laughter in the courtroom. It’s hard to predict with this Court, but the President’s presence today didn’t make his case any stronger. It may have been the final nail in the coffin.

You can read the full transcript from the argument here.

Cases can turn on oral argument—but the coverage doesn’t always capture what actually mattered in the room. I try to walk you through what happened and explain how it landed, based on years of arguing cases in the Courts of Appeals. If you appreciate this kind of analysis, subscribe to Civil Discourse and support independent journalism that isn’t afraid to take the administration on when it matters the most.

We’re in this together,

Joyce Vance

 

"When CNN wins in a case like this [against Trump], the rest of us do too"

 

In 2022, Donald Trump sued CNN for defamation. Donald Trump, of course, sues a lot of people and businesses on that basis. This case had a singular focus: he sued CNN over its use of the phrase “the Big Lie” to describe his lies about the 2020 election being stolen from him.

On July 28, 2023, Federal Judge Raag Singhal in the Southern District of Florida dismissed Trump’s lawsuit. In it, Trump claimed that CNN defamed him by “making statements comparing him to Hitler and the Nazi regime.” Trump identified five instances of what he alleged was defamatory conduct:

-Publication of a January 2021 piece by contributor (and friend of Civil Discourse) Ruth Ben-Ghiat that was headlined “Trump’s big lie wouldn’t have worked without his thousands of little lies,” and in which Ruth wrote, “This is Trump’s ‘Big Lie,’ a brazen falsehood with momentous consequences.” She “likened the Plaintiff to an authoritarian dictator.”   

-Publication of a July 2021 piece by Editor-at-Large Chris Cillizza, entitled “Donald Trump just accidentally told the truth about his disinformation strategy.” Cillizza compared Trump to Nazi propagandist Joseph Goebbels: “One can only hope that Trump was unaware that his quote was a near-replication of this infamous line from Nazi Joseph Goebbels: ‘If you tell a lie big enough and keep repeating it, people will eventually come to believe it.’”

-Publication of a September 2021 piece by Cillizza entitled, “Donald Trump’s Mental Health becomes an issue again.” Cillizza wrote that Trump “continued to push the Big Lie that the election was somehow stolen despite there being zero actual evidence to back up that belief.” Airing a January 2022 segment of Jake Tapper’s show where Tapper talked about Trump continuing to “push his big lie.”

-Publication of a February 2022 piece by Cillizza entitled, “Here’s the terrible reality: Trump’s election lie is on the march.” Cillizza wrote, “This is the insidiousness of Trump’s big lie. It’s like an earworm – you may hate the song, but you just keep finding yourself humming it in the shower. Trump has created a constant low-level buzz within the American electorate that something is wrong with the way we conduct elections. That he has no proof doesn’t seem to matter; by sheer repetition, his false claims are wheedling their way into the consciousness of the public.”

Trump alleged that the use of the phrase “the Big Lie” was defamatory because it associated Trump with Hitler, and “incited” readers/viewers to have hate, contempt, distrust, ridicule for and “even fear” of Trump. He claimed that CNN damaged both his reputation and his future political career and asked for $475 million in damages (Noteworthy: Lindsey Halligan, who served a brief stint as Trump’s appointed, but never confirmed, U.S. Attorney in the Eastern District of Virginia, was one of the lawyers who filed the lawsuit.)

There is a very low threshold for a civil lawsuit to survive a motion to dismiss. These motions are usually brought after the plaintiff brings the case but before any discovery changes hands. They test the “legal sufficiency” of a plaintiff’s case: assuming all the facts the plaintiff alleges are true, do they have a case under the relevant statutes?

In Florida, to establish defamation, a plaintiff must be able to show that a false, defamatory statement was published with knowledge of or “reckless disregard” for its falsity and the defendant suffered actual damages as a result. The Judge pointed out that the law is well-established that statements of opinion don’t qualify as defamation: “A claim of defamation requires a false statement of fact.” He concluded, “even if the statement is made with bad or evil intent, it is not actionable under the law if it is pure opinion.”

The reason the Judge dismissed the case is this: “The next question is whether the statements were false statements of fact. This is where Trump’s defamation claims fail.” Judge Singhal held that the statements Trump complained about were opinions not statements of fact, which means they can’t support a verdict for defamation. And even, he noted, if CNN had acted with “political enmity” for Trump, that “does not save this case; the Complaint alleges no false statements of fact.”

Trump’s claim that the phrase “the Big Lie” associated him with Hitler and genocide didn’t hold water with the Judge either. He held that the phrase “does not give rise to a plausible inference that Trump advocates the persecution and genocide of Jews or any other group of people. No reasonable viewer could (or should) plausibly make that reference.” Even if they could, “Being ‘Hitler-like’ is not a verifiable statement of fact that would support a defamation claim.”

And so, Judge Singhal dismissed the case with prejudice. Trump was entitled to appeal, and he did. A three-judge panel of the Eleventh Circuit ruled against Trump in an unpublished opinion and without oral argument in November 2025, affirming the district court’s decision.

Judges publish opinions when they have important precedential value. Historically, the Eleventh Circuit has published fewer than 15% of its decisions every year. Just over 13% of cases in the Circuit go to oral argument, Again, it’s the most significant cases, or those that are complicated and require argument for judges to hear a full explanation of the issues, that make the cut. Trump’s case didn’t clear either bar. The court heard it because it was obligated to do so and then it dismissed it without much ado.

 

The panel judges, Aldaberto Jordan (appointed by Obama), Kevin Newsom (appointed by Trump), and Elizabeth Branch (appointed by Trump) ruled against Trump 3-0 in a per curiam opinion that held “We agree that Trump did not adequately plead falsity. Therefore, we affirm the dismissal of Trump’s claim.” They explained, “To be clear, CNN has never explicitly claimed that Trump’s ‘actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations.’ … But, according to Trump, this assertion is implied in CNN’s use of the phrase ‘Big Lie.’” They conclude, “Trump’s argument is unpersuasive.”

Donald Trump doesn’t like to take no for an answer, so he asked for the full Eleventh Circuit Court of Appeals to reverse the panel’s decision. Each Circuit typically hears only a handful of cases en banc in every term of court. So it was not particularly surprising, but still reassuring, when the Eleventh Circuit turned down Trump’s request today.

Of course, Trump can still petition the Supreme Court to hear his case. He has a similar petition pending before the Supreme Court currently, an attempt to get it to reverse E. Jean Carroll’s victory. He will have a similarly small chance there.

It’s a significant victory when our courts stand up for the First Amendment and free speech. Donald Trump has long been of the view that it’s too difficult for public figures to succeed in defamation cases, and that the law should be changed to make it easier. After Trump won in 2024, Reuters wrote, in a carefully worded story, that he was adopting “a wide-ranging legal strategy in suing media companies over what he describes as false or misleading coverage about him, filing cases under civil anti-fraud laws in addition to defamation lawsuits. 

Some legal experts say the cases appear aimed at punishing outlets for critical coverage, and that the novel legal strategies are an effort to get past steep hurdles in defamation lawsuits, which can be difficult for public figures in the U.S. to win.”

We’ve seen how those cases have turned out, with a number of defendants, like CBS and ABC, settling cases legal experts deemed marginal for astronomical sums. But in cases where litigants have proceeded in court, courts like the Eleventh Circuit have largely backed the First Amendment.

We don’t always have the opportunity to appreciate the many and varied ways federal courts continue to stand for the rule of law. Much of the time, it’s quiet cases like this one that don’t attract a lot of attention. But this decision underscores that Trump is not a monolith; he is not entitled to special treatment in court, and when parties that he sues stand up to him, they can win when they are entitled to. And when CNN wins in a case like this, the rest of us do too.

If you want to truly understand how the First Amendment is shaped—not just in headlines, but in the courts where it actually evolves—this newsletter is for you. Tonight, we take a deep dive into a single, consequential piece of litigation, tracing the district court and court of appeals’ decisions and translating the legal reasoning into clear, real-world meaning so you can see not just that Trump lost, but why it matters, how the arguments developed, and what it signals for the future of free speech. I hope tonight’s column gives you sharper insight into the legal forces quietly defining your rights and that if you think that’s important, you’ll subscribe to Civil Discourse.

We’re in this together,

-Joyce Vance

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"Let’s go back to contemporary sources and make sure we have a clear picture of what investigators found and what the Report said about Donald Trump"

There is an enormous amount of misinformation circulating about former Special Counsel Bob Mueller’s investigation into Russian attempts to influence the 2016 U.S. election and the effort to obstruct that investigation following his death. Tweets honoring Mueller’s life of service to his country are now knee-deep in trolls and MAGA comments that have no relationship to the well-documented facts. 

So, let’s go back to contemporary sources and make sure we have a clear picture of what investigators found and what the Report said about Donald Trump. We’ll also look at why Mueller, nonetheless, didn’t indict Trump or even weigh in on whether he should be indicted. That decision drew a lot of criticism.

Some of the key results of the Special Counsel investigation:

Thirty-seven indictments, including six former Trump advisers, 26 Russian nationals, a California man, a London-based lawyer, and three Russian companies. Seven were convicted. And perhaps most significantly, Mueller developed compelling evidence that Trump obstructed justice. Repeatedly. Mueller said publicly that the investigation did not exonerate Trump.

Among the specifics: Trump associates repeatedly lied to investigators about their contacts with Russians, and President Trump refused to answer questions about his efforts to impede federal proceedings and influence the testimony of witnesses. 

A statement signed by over 1,000 former federal prosecutors, including me, concluded that any other person who engaged in the obstructive conduct attributed to Trump would have been indicted.

Barb McQuade and I wrote a summary of the part of the investigation that delved into obstruction. You can read it here. “Attorney General William Barr did the country a disservice,” we wrote, “when he withheld the Mueller report from public view for weeks, while claiming Mueller concluded there was ‘no collusion, no obstruction.’ That is not what the report says.” 

We noted, “We start by acknowledging Mueller’s decision that he was bound by DOJ policy that prohibits indictment of a sitting president. Whether that policy is correct or not, prosecutors must follow the rules. Mueller did.”

We also laid out some of Trump’s most significant obstructive conduct per the Report: Trump asked his White House counsel, Don McGahn, to arrange for Mueller to be fired in June, after he started work. Trump denied he’d done this when a reporter broke the story about the requested firing in 2018.

Trump tried to get McGahn to deny reporting about his conduct as it surfaced and once threatened to fire McGahn if he wouldn’t. McGahn refused. Trump summoned McGahn to the Oval Office and ordered him to create a false record that denied that Trump ordered him to fire Mueller, which would be a federal felony if proven.

After Attorney General Jeff Sessions recused from overseeing the investigation, Trump repeatedly tried to compel him to “unrecuse” (no such thing exists) and tried to get Corey Lewandowski to threaten Sessions that he would be fired if he wouldn’t. Trump wanted Sessions to limit the Special Counsel to investigating future elections. That would have meant no investigation into Russian interference in 2016, an information gap that would have left the country vulnerable to future attacks.

The president engaged in witness tampering, with one of the worst examples being dangling the prospect of a pardon to keep Paul Manafort from cooperating with the Special Counsel’s investigation.

Of course, the fact that Mueller was able to investigate and uncover much of this means Trump didn’t succeed with his efforts to obstruct. Some people suggested that means what Trump did wasn’t all that bad. As Barb and I wrote at the time, “Nothing could be further from the truth. To protect the integrity of our criminal justice system, prosecutors are able to hold accountable people who attempt to interfere with an investigation, not just people who have the luck to be successful. 

Allowing an individual to avoid accountability because they weren’t successful or because investigators were unable to develop proof of underlying crimes would ensure that the most successful obstructors avoid justice.”

It’s especially important to remember, as Trump, today, launches attack after attack against the investigation into the 2016 election and the people who conducted it, that the Mueller investigation confirmed the intelligence community’s conclusion that Russia was behind the attack on the DNC’s computers and developed important and specific information about the full nature of the attack Russia launched. 

Mueller’s charges included computer hacking, conspiracy, and financial crimes. Given that context, it’s shocking that in order to try to protect himself, Trump was willing to put national security at risk, attempting to derail the investigation into Russia in order to save himself.

If you want more, there is a detailed analysis of the Mueller investigation from Just Security, which I participated in along with some very skillful lawyers. It’s divided out by topic, so you can dig in deeper on anything of interest.

Barb McQuade, impeachment counsel Norm Eisen, me, and John Dean.

In June 2019, I testified before the House Judiciary Committee, alongside Barb and John Dean (yes, that John Dean), about the Report. In my opening statement, I explained why Mueller had adhered to DOJ policy when he declined to make a prosecutorial decision on whether to indict Trump.

I asked Barb tonight what has stuck with her all these years later, and this was her response: “Mueller indicted 38 individuals and entities, including Russian agents who hacked into computers and stole email messages and who posed as Americans on social media to influence voters. And far from exonerating the Trump campaign, Mueller found that its members met with Russians at Trump Tower, shared polling data with a Russian intelligence officer, and coordinated messaging with the WikiLeaks release of stolen emails. This case was always less about Donald Trump and more about Russia, but rather than report Russia’s overtures to the FBI, Trump welcomed the help.”

It was and still is “Russia, Russia, Russia.”

Even though Mueller couldn’t get the Russians he indicted before a court in the U.S., he managed to educate the American people about how Russia tried to interfere in our elections. Trump pardoned five of the Americans Mueller convicted: Paul Manafort, Roger Stone, Michael Flynn, George Papadopoulos, and Alex van der Zwaan. Manafort and Stone were convicted by juries. Flynn, Papadopoulos, and van der Zwaan pled guilty in court, each acknowledging under oath—Flynn twice—that they were pleading guilty because they were guilty, and for no other reason.

That’s Bob Mueller’s legacy. He uncovered the truth when it was difficult to do so and held people accountable. That’s a sharp contrast to the president who has criticized him. Bob Mueller was fair and decent, and he played by the rules, including respecting the rule of law, which may seem quaint in the time of Trump. Ultimately, criticism of Mueller’s report and his work is an indictment of what Trump has done to our country. The Mueller investigation and its results speak for themselves.

We’re in this together,

-Joyce Vance

 

Thursday in America by Joyce Vance

 

Judge Amy Coney Barrett was in conversation with the Chief Justice’s Counselor, Judge Robert M. Dow Jr. (we discussed Judge Dow and the role of the Counselor here), at the 2026 Supreme Court Fellows Program Annual Lecture at the Library of Congress today.

“Freedom of speech and freedom of religion commit us to pluralism,” she told him. “They commit us to tolerance. They commit us to having to respect and allow to be heard even those viewpoints that we might disagree with.”

So, what does she make of a president who is not committed to freedom of speech or freedom of religion? Are we to draw the obvious conclusion? Or is she just speaking generically here?

Justices speak publicly at programs like this, but they usually attract little attention. It’s unlikely, with public confidence in the Court at an all-time low, that it’s lost on the Justices that they present a unique opportunity for the Court to try and reclaim some of that ground. 

But words like these are easier to say than live by today. Justice Barrett is correct that these rights make the country more open, more accepting, more diverse, and much more rich and interesting. But we live in an era when they are undeniably being constricted, as we discussed last night.

The president of the United States has taken to calling his war in Iran an “excursion” as though we are all off on spring break. Seven American are dead, possibly more following today’s news that an incident involving two KC-135 refueling aircraft, one that did not involve enemy or friendly fire, resulted in one of the planes crashing. Recovery efforts are still underway.

Now that Trump has his war, he doesn’t seem to know what to do with it. He appears to have had no plans in place for either the future or Iran or protection for the straits of Hormuz. Instead, the White House account on Twitter is posting videos that equate war with video games or football. It did that here, using video of University of Nebraska receiver Kenny Bell’s blind-side block on a Wisconsin defender during the 2012 Big Ten title game and other sports footage mixed in with footage of U.S. strikes on Iran. Bell told the Washington Post that the White House’s video made him sick.

There were two shootings in the U.S. today, one at Old Dominion University, the other at a reform Jewish synagogue in Michigan, Temple Israel, where children were in daycare when the shooter drove his vehicle into the building. 

There is a rising tide of antisemitism in this country that continues to grow. The administration pays lip service to opposing it, even as Trump encourages a tide of hate against people because of their race, religion, national origin, gender, or sexual orientation. They are not unrelated. Legitimizing hate begets more hate.

The shooter at ODU, who is now deceased, spent over a decade in federal prison for material support of terrorism. He took the life of an army ROTC officer who was in his classroom, a horrific act. But there is risk in these moments that when a person or a small group commits acts of violence motivated by hate directed at Jews, Muslims, or anyone else, the criminal acts are ascribed to a group broadly to justify dehumanizing that group. 

That leads to more hate and more hate crimes. The dehumanization is an effort to make it acceptable to attack American Jews if you don’t like Israel’s policies or condemn all Muslims for the acts of two men who committed odious crimes today. It is much the same as pretending all immigrants are violent criminals or all transgender people pose a threat to kids. These are the kinds of passions most administrations try to tamp down on.

Not this one. Alabama Senator Tommy Tuberville received some support from his side of the aisle for a tweet Democrats condemned:

The federal judiciary continues its pushback against the administration’s politicization of how taxpayer dollars are spent. Tonight, Judge Manish Shaw told the Trump administration it could not stop funding health care in states led by Democrats, which it had tried to do to the tune of $600 million. The Judge called the effort “contrived” and held that it was an illegal effort to punish the states for trying to protect immigrants with sanctuary policies.

The Judge explained how the administration was penalizing the four states, “Plaintiffs are four states that usually receive billions of dollars in federal funds through the Department of Health and Human Services, the Department of Transportation, and the Department of Homeland Security. Other states receive federal funding from similar sources and based on similar criteria. 

But these four are on a list that the federal Office of Management and Budget pushed out to agencies in January 2026. Around the same time and over the next few days, word got out (formally and informally) that there would be no money from grants administered by HHS and no funds obligated from DOT and DHS to the four states. 

These funds support health and safety initiatives, infrastructure modernization projects, and disaster recovery and relief—projects deeply embedded in basic operations of state and local government. The funds are authorized by Congressional appropriations that are unrelated to immigration policies or political pique, and, for many grants from the Centers for Disease Control, that set a floor for required spending.”

He continued, “On January 13, 2026, the President announced that starting February 1, 2026, the federal government would not make any payments to ‘states having sanctuary cities.’” These are the facts. And they do not line up well for the government here. It’s left to argue that the plaintiff states have some evidence, but it’s not enough to get the injunction they seek. The states want to stop the federal government from discriminating against them. The Judge concluded that “the public interest is ‘served by an injunction in that it acts as a check on the executive’s encroachment of congressional power that violates the separation of powers.’”

Whether it’s the economy and affordability, Trump’s wars, the Epstein files, or the state of our democracy, there is little good news for Trump as the primaries continue and midterms come closer. I turned on the TV tonight, to find that Fox News was telling its viewers about Dr. Jill Biden’s new biography as CNN discussed the disruption in the oil markets and MS NOW highlighted Trump’s ongoing efforts to pass the SAVE Act.

The SAVE Act, which far too many people assumed was a dead letter, has cropped back up. Hopefully, Marc Elias, who said Tuesday night when we spoke to Big Tent that it would not pass in the Senate (and that if it did he will challenge it), will prove correct. Because ultimately, it’s up to voters to decide the future of the country.

For Trump, pushing the SAVE Act is about the only perceived path to success in the midterm elections—keeping eligible Americans from voting. Trump has had success at using his war to turn attention away from the Epstein files. But he knows he’s still vulnerable. His party is in danger and it’s in danger because of him. There is no telling what a man who cannot tolerate losing, who incited the January 6 insurrection to pretend it didn’t happen in 2020, will do when he is backed into a corner. We should be prepared for anything and ready to do whatever it takes to vote.

If you read Civil Discourse because you want to understand what the headlines actually mean—and not just react to them—paid subscribers make that level of analysis possible. For the price of a couple cups of coffee each month, you get the perspective of someone who has spent decades inside the legal system explaining how the pieces really fit together.

We’re in this together,

-Joyce Vance

 

The Week Ahead by Joyce Vance

 

The Week Ahead: With the State of the Union looming, we started the week with a look at that along with other important legal developments including the death of Ruben Ray Martinez, a U.S. citizen, at the hands of federal agents in Texas during a traffic stop last March, only coming to light now due to a FOIA request; ongoing reports of deaths at ICE-run facilities in Texas; the likely ongoing legal battle over tariffs; Judge Aileen Cannon’s ruling barring the release of Volume II of Jack Smith’s special counsel report involving classified documents; and more.

Live with Miles Taylor: Counterprogramming SOTU: Miles Taylor of Defiance.org joined me to talk about the organization’s “State of the Swamp,” a rebuttal to SOTU with real-time factchecking, Portland frogs, and more. Our conversation touched on working across party and ideology differences protect democratic principles and on embracing joyful defiance and lighthearted humor to combat the absurdity of this moment.

If DOJ is Trump’s Law Firm, Aileen Cannon is His Judge: Judge Aileen Cannon’s order barring the release of Volume II of Jack Smith’s special counsel report is only the latest development in the long history of the case. We deep dive into that history of (very) questionable rulings and their pattern of favoring Trump.

How to Watch the State of the Union Address: We touched on Miles Taylor’s SOTU counterprogramming and then we all connected on Substack Notes as we watched (or didn’t watch) the address, which made it more tolerable for me.

SOTU: I watched in case you just couldn’t. Read here for my in-the-moment analysis and a few hot takes.

The Other Red Hat: We turned our focus to two of my favorite things—knitting and craftivism, to learn how knitters in Minneapolis have begun a new red hat movement called Melt the ICE, inspired by citizens of Norway who wore red knitted caps as an act of resistance during the Nazi occupation of their country. With links to a pattern (or to finished products for non-knitters), you can get involved too. MAGA does not own the color red.

The SAVE Act Is Dead, Fulton County Is Fighting Back; So, Of Course, Trump Wants To Seize Control Of The Election: The good news of the day was the legislative failure of the SAVE Act, along with a significant order from Judge J.P. Boulee in the Georgia case in which Fulton County election officials want their election records back from DOJ. Meanwhile, reports of a draft executive order declaring an “emergency” (read: opportunity for Trump power grab) based on the false claim that China interfered in the 2020 elections is very concerning.

Substack Live with Former Senator John Tester and Journalist Maritsa Georgiou: I joined John Tester and his podcast co-host Maritsa Georgiou to discuss my book and the news of the day. And we had fun. It’s hard to believe because it’s been such a serious, somber week. But we agreed Trump can’t be permitted to take the fun out of our lives, even as we’re forced to fight for democracy.

Five Questions with Alabama Journalist Kyle Whitmire: Pulitzer Prize-winning journalist Kyle Whitmire joined us to discuss the evolution of journalism, the war on dumb, the war on truth, and how Alabama can be a Rosetta Stone for developments nationwide. And if you collect stories of Republican hypocrisy around voter fraud, this one is for you, with Kyle’s brilliant reporting on an Alabama Republican candidate to be lieutenant governor.

Live with Ruth Ben-Ghiat: No one speaks more eloquently about the art of resistance and why we shouldn’t give up than historian Ruth Ben-Ghiat. If you need a shot of encouragement, watch our conversation, and make sure you stay to the end, where she provides precisely the encouragement I needed.

The Law of War: In light of the strikes on Iran, we revisit some bedrock principles—why the rule of law exists, why it restrains all of us (especially the powerful), and why “doing whatever feels good in the moment” has never been a substitute for constitutional order, especially when it comes to, especially when it comes to war.

-Joyce Vance