Yikes! I Forgot to Give This Post a Headline!

Fixed now

Good Morning:

I appeared on The Bulwark Podcast yesterday to discuss—among other things—Project Batteries. This has resulted in another influx of cash. Thanks again to everyone who is contributing.

Please share the podcast and the payment links so that more people can learn about the effort.

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Tuesday on #DogShirtTV, the estimable Emily Hoge joined me—wearing a dog shirt!—to help me work through the realization that not all Soviet architecture is hideous:

Yesterday on #DogShirtTV, the estimable Mike Feinberg came on the show in his capacity as a real life (former) FBI agent to discuss the raid on the Fulton County election offices:

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The Situation

The Situation on Sunday looked out the window of a chic cafe to survey the wreckage of war.

Yesterday, the New York Times reported that a federal grand jury in Washington had declined an indictment against six members of Congress who had released a video to remind active duty military personnel that they did not have to follow unlawful orders. “It was remarkable,” The Times reported,

that the U.S. attorney’s office in Washington—led by Jeanine Pirro, a longtime ally of Mr. Trump’s—authorized prosecutors to go into a grand jury and ask for an indictment of the six members of Congress, all of whom had served in the military or the nation’s spy agencies.

But it was even more remarkable that a group of ordinary citizens sitting on the grand jury in Federal District Court in Washington forcefully rejected Mr. Trump’s bid to label their expression of dissent as a criminal act warranting prosecution.

Remarkable in the sense of being worthy of remark? Yes, absolutely.

Remarkable in the sense of being surprising? Surely not.

The Justice Department has authorized prosecutors to go after any number of political opponents of the president on the most specious of grounds. Indeed, it has often ordered prosecutors, against their will, to work these cases—prompting conscientious objection and resignation and sometimes firings. That the Justice Department would attempt to criminalize the pure speech of six opposition members of Congress, all of them veterans of either the military or the intelligence community, is the least surprising thing in the world. It is just a part of the new abnormal.

Nor is it surprising that a grand jury balked. Grand juries have been balking a lot these days. Some of these cases are high profile—like the effort to indict “sandwich guy,” for example, or the serial efforts to prosecute New York Attorney General Letitia James. It’s impossible to know how many grand juries have rejected how many cases, but it’s clearly happening quite a bit. As Josh Gerstein writes in Politico:

Grand juries in Los Angeles, Chicago, Washington, D.C., and Alexandria and Norfolk, Virginia, have all rebuffed federal prosecutors recently.

Those rejections have derailed or impeded prosecutions of former FBI Director James Comey, New York Attorney General Letitia James, people accused of threatening Trump, and little-known activists accused of clashing on the streets with federal officials..

. . .

The top federal prosecutor in Los Angeles, Bill Essayli, has also reportedly been exasperated by grand juries refusing to issue indictments in cases stemming from Trump’s immigration crackdown in southern California. At one point earlier this year, Essayli’s office had managed to secure indictments in less than a quarter of the felony cases it brought in connection with protests or immigration raids, the Los Angeles Times reported.

The idea of punishing members of Congress—or anyone—for speaking in public the self-evident truth that servicemembers have a duty to defy unlawful orders is a democratic monstrosity. It is monstrous to attack the retirement rank of a senator on such basis, as the administration has done with Sen. Mark Kelly, and it is even more monstrous to deploy the criminal process for such a purpose.

When the government engages in monstrosities, we see, in response, that layers of the democratic substrata that normally lie invisible suddenly become visible. The grand jury seems like a formality to many people in normal times. Grand juries never reject cases, after all. They are instruments of the prosecution, we all learn cynically, that offer no real civil liberties protection. Queue inevitable ham sandwich line.

Until, that is, the government engages in the monstrosity of attempting to prosecute sitting members of Congress for speaking the truth about servicemembers’ obligations to the law. Or until the government tries to prosecute protesters, say, who get roughed up my federal agents for roughing up federal agents. Or until the government tries to prosecute political enemies who once investigated or cases against President Trump.

Then, all of a sudden, the substrate layer of civil liberties gets exposed. And it turns out that having 23 people vote on whether the government even has probable cause that a given person committed a crime using non-admissible evidence is a genuinely important civil liberties protection. No, it’s not one we need often in civilized times. But the Constitution has to govern us in savage times too. And when you have a president who wants to prosecute legislators with the temerity to remind service-personnel of their duty to obey the law, situating 23 citizens between him and the power to haul them into court turns out to matter.

There are other provisions of the Constitution like this too. The Eighth Amendment’s prohibition against “cruel and unusual punishment,” which at its core protects against the particularly tortuous deaths inflicted in Stewart England—drawing and quartering and the like—doesn’t seem to have a lot of application these days, though the Supreme Court has widened the scope of its coverage over the years. But I, for one, am glad it’s there, however much work it may not do in preventing abuses by ICE in detention facilities and lots of other things. Because society does regress and it sometimes does regress to points where you need protections against barbarities we haven’t had cause to think about in a few centuries. And it is useful in such savage times to have a floor of civilization below which we will not sink—lo though we may try. Who knows? Maybe we will even see Third Amendment litigation sometimes soon.

The Situation requires us all to think about what power we have and how we can use it. That means something different for members of Congress with military and intelligence backgrounds who can speak to the public loudly than it does for protestors, who may not have loud individual voices but who can aggregate their voices.

It means something different for public servants than for journalists.

It means something different for citizens than for people who have to fear ICE, either because they are not in the country legally or because they might get rounded up and deported even though they are here legally.

And it also means something different for people who happen to be put on grand juries—or petit juries—than it does for the rest of us.

The Constitution entrusts these people with the democratically sacred duty: The government cannot punish a person without first convincing grand jurors of something—without, in other words, getting popular permission. In savage times, that permission is no mere formality. It is the line between a society that flirts with barbarism and a society that plunges into it.

The Situation continues tomorrow.

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Recently On Lawfare

Compiled by the estimable Marissa Wang

Trump’s Board of Peace: America’s Worst Coalition of the Willing

Kristina Daugirdas and Katerina Linos outline some of the challenges that President Trump’s Board of Peace may face as it attempts to solidify itself on the international stage. Using three similar “coalition of the willing” organizations as case studies, Daugirdas and Linos argue that, without the United Nation’s support, the Board of Peace will struggle to have the legitimacy it needs for effective global governance.

The choice isn’t between U.S. leadership and multilateral cooperation. Effective U.S. leadership requires working through multilateral institutions, even when doing so is inconvenient. The alternative is the pattern documented here: initial efficiency followed by gradual recognition that shortcuts don’t work, culminating in a return to the traditional model.

The Board of Peace may learn this lesson. Or it may join the list of ambitious American-dominated initiatives that discovered, too late, that going it alone comes at a price. Better to start with what works than to rediscover its value the hard way.

Trump’s $100K H-1B Visa Fee May Be Here to Stay

Irene Loewenson breaks down the legal challenges to the Trump administration’s $100,000 fee on high-skilled foreign workers trying to acquire H-1B visa status.

In December 2025, Judge Beryl Howell of the U.S. District Court for the District of Columbia upheld the $100,000 fee for the H-1B visa, citing the president’s broad authority to restrict noncitizens’ entry to the country. That isn’t the end of the matter—the U.S. Court of Appeals for the D.C. Circuit will hear a fast-tracked appeal, and similar lawsuits are pending elsewhere. Still, this decision may portend difficulties for the raft of suits challenging the fee.

Minnesota FACE Off: A Deep Dive Into the St. Paul Church Protest Case

Anna Bower, Eric Columbus, and Troy Edwards unpack the indictment of journalists Don Lemon, Georgia Fort, and seven other defendants, who were charged under the Freedom of Access to Clinic Entrances Act and the conspiracy against rights statute in connection with their presence at a protest at Cities Church in St. Paul, Minnesota. The trio also parse through the hours of footage from Lemon’s livestream video of the protest to assess the viability of the government’s allegations in court.

Here, we focus on the indictment itself: the factual allegations, the elements the government must prove to secure a conviction, and the potential defenses available to the accused. A close analysis of the charging document reveals that the case is far from the slam dunk some officials have portrayed it to be. Not only are the charges vulnerable to pre-trial dismissal on several grounds, but the prosecution’s narrative sits in noticeable tension with facts currently reflected in the public record.

On that score, the charges appear to reflect a strained effort to force a square peg into a round hole. The Cities Church protest may fairly be characterized as disruptive, disrespectful, or even unlawful under local or state trespass law. But the federal charges look like overreach at best—and something far more troubling at worst.

“When Life Gives You Lemons”: A Minnesota Case Study in How the Trump Administration Warps Justice

Bower, Columbus, and Edwards also assesse the indictments of the St. Paul Church protestors and Lemon in the context of the Trump administration’s ongoing weaponization of the justice system for political theater.

The Trump administration’s immigration enforcement efforts in Minnesota over the past two months have given it lots of lemons. So when a group of protesters angrily barged into a church accompanied by a man Trump had repeatedly called “the dumbest man on television,” the president’s team leapt at the chance to change the narrative and made a public spectacle of it. In what has become standard operating procedure for the Justice Department’s political appointees, the process was the point—protesters, judges, and norms be damned.

For Washington, All Roads Lead to Minsk

Katsiaryna Shmatsina explains how the Trump administration’s outreach to Belarus marks a transactional shift in U.S. foreign policy, as Washington lifts sanctions on Belarusian potash and deepens engagement with Alexander Lukashenka.

At the recent World Economic Forum, Canadian Prime Minister Mark Carney observed what he called “a rupture in the world order.” For evidence of that rupture, Carney could have pointed to how his own country in many ways has fallen out of favor with one of its most enduring and closest allies, the United States—while Belarus, long isolated by the West, has become a darling in Washington.

Documents

Tyler McBrien shares the two affidavits filed by the Justice Department in support of the search warrant executed at the Fulton County election office to seize election records and ballots from the 2020 presidential race.

Podcasts

On Tuesday’s Lawfare Daily, Aaron Reichlin-Melnick joins Eric Columbus to discuss what immigration policy may look like during the second year of the second Trump administration in light of Immigration Customs and Enforcement’s and Customs and Border Patrol’s recent tactics.

On Scaling Laws, Alan Z. Rozenshtein and Renée DiResta sit down with David Rand to discuss how artificial intelligence (AI) can influence its users’ political beliefs in positive and negative directions, the political stakes of training AI models, and the case for transparency requirements in AI policy.

On Wednesday’s Lawfare Daily, Peter Beck and Seamus Hughes join Tyler McBrien to discuss the trend of disappearing local news sources and how this trend affects reporting and transparency in the courts.

Videos

In her penultimate Lawfare Lecture, Dr. Laura Field explains how the national conservative movement has successfully shaped the new right around nationalist principles, what this shift means in contemporary politics, and what makes the national conservatives different from other factions.

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Today’s #BeastOfTheDay is the stoat, which earns the title for inspiring a question-based headline I am willing to whole-heartedly endorse:

How does one honor today’s Beast?