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An ex-federal prosecutor offers her perspective on the Democrats’ big midterm win and names two Trump officials she thinks Congress should impeach and convict for conduct in office that more than warrants it.
In her Substack, Joyce Vance writes that Senate Democrats are well placed to stop the president from putting unqualified federal judges on the bench, Supreme Court justices above all.
There will be no Justice Cannon or Justice Kacsmaryk under this arrangement, she writes. Congress has the means to put the brakes on presidential overreach by having the Article I branch of government wield the power of the purse. With oversight hearings and an insistence on answers, lawmakers can restore a measure of accountability.
Pete Hegseth, the defense secretary, and Todd Blanche, the attorney general, are the officials she says should be removed from office. “That can’t happen soon enough,” she writes.
She is particularly hard on Blanche, charging him with an “unconscionable breach of the public trust while voting was in progress.” Citing Glenn Thrush at The New York Times, she points to a report that the Justice Department is ratcheting up its probe into the recruitment of an opponent bearing the same name as a Republican senator in Alaska.
According to two people with knowledge of the move, some 20 Democrats have been sent letters to let them know they could be targets. A target, she explains, is one against whom the prosecutor or grand jury has substantial evidence of a crime and whom the prosecutor deems a putative defendant. Put simply, prosecutors intend to indict them in most instances.
The dispatching of such letters, if they are what they seem, suggests the DOJ is ready to go after as many as 20 people in relation to the Alaska Senate race.
As for Blanche, Vance writes he has a history of letting prosecutors pursue charges without sufficient evidence to prove guilt. One has only to look at the third attempt to prosecute James Comey and the unsuccessful effort to indict Cassidy Hutchinson, whose case a grand jury rejected.
Vance argues that the timing of the letters made matters worse. There was no urgency that justified making such a move on Election Day, she writes, when prosecutors could have waited until voting was over. For her, removing Blanche would let Congress push back against the White House’s use of prosecutions against its enemies.
That would require more than a Senate majority. The House can impeach by a majority vote, but conviction requires two-thirds of senators present, and conviction results in removal from office.
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AVOID GRAND JURY?
Head-scratching Comey legal strategy reveals major internal strife at DOJ
The Justice Department had ten years to indict former FBI Director James Comey for what it claims was his "disclosing classified information." So, why didn't they?
Former federal prosecutors Barbara McQuade and Joyce Vance both detailed in columns Wednesday that "the charges are fatally flawed — which the Department of Justice is either too incompetent to realize or too dishonest to care," as McQuade wrote.
As Vance pointed out, the crime they've claimed Comey violated "is 18 U.S.C. § 793, which covers crimes involving receipt, possession, transmission, etc., of National Defense Information." She said it should sound familiar because it mirrors the charges President Donald Trump faced for stealing classified documents when he left the White House in 2021. Trump then refused to return the documents.
The case became known on Monday when the court unsealed a document formally charging Comey. As with other recent indictments out of the Washington D.C. District Attorney's office, this one didn't go to a grand jury for a criminal indictment. A grand jury is required in most felony cases under the Fifth Amendment to the U.S. Constitution.
"Instead, it is what is referred to as an 'information,' a piece of paper signed by only the prosecutor. An information may be used for misdemeanor offenses, which do not have Fifth Amendment protections, or when defendants have waived their right to be indicted, usually when they are planning to plead guilty," said McQuade, noting she doesn't see it applying in either case.
Vance explained, "It used to be unusual for a grand jury to refuse to indict. Now it’s becoming increasingly common, and the government’s new move to bypass grand jury scrutiny altogether speaks volumes about the quality of the revenge docket cases DOJ is willing to bring to please the president."
The same happened in the recent case against former FBI agents who worked to protect the 2020 election from foreign interference.
Both legal eagles also wrote that there are statute-of-limitations issues. According to the Justice Department, they submitted the "information" filing because the statute of limitations was about to run out. If it's too late, they can't charge. It's a ten-year limit; however, there's a caveat.
“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed," Vance quoted, with her own emphasis.
However, it appears the DOJ wants to charge Comey with the 10-year espionage. Vance pointed out that the language there is very specific: “An indictment for any violation of title 18, United States Code, section 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed.”
The DOJ didn't secure a grand jury indictment for either the five-year or 10-year limitations. The DOJ filed only "information" in the case. That's why Comey's lawyers argue it should be thrown out.
But the DOJ claims other statutes allow limitations deadlines to be paused, so it should do the same here.
"It’s certainly a creative argument," wrote McQuade. "Neither party cites a case that directly addresses the issue, probably because no competent prosecutor investigating a prosecutable case has ever waited more than 10 years to seek an indictment." She expects the judge to throw it out based on the law's text.
But it prompted McQuade to ask how the DOJ messed up if it wanted to indict Comey so desperately. The Trump administration already knew about the situation, *The New York Times* reported. Comey corrected misinformation that appeared in reports, but "the subject was legally prevented from addressing itself."
McQuade said that if that's true, it seems to lack the sinister "willfulness necessary to be a violation of the Espionage Act." She said that most prosecutors wouldn't bring such a case. But this is the Trump Justice Department, which appears to be working through a list of foes, from former FBI agents to former Justice Department lawyers to former Trump White House staffers who testified at the Jan. 6 committee hearings. Even the Washington D.C. Bar Association hasn't been safe.
McQuade wondered if perhaps the reason they didn't go to the grand jury before their Oct. 5 deadline was "maybe they’re just inept. Maybe they were too busy carrying out the president’s other vendettas. Maybe they just lost track of the time."
Another possibility, however, is less able to be mocked. The DOJ may have known it couldn't persuade a grand jury because its evidence didn't establish enough facts to believe a crime was committed. "And if they are unable to establish probable cause to obtain an indictment, then they most certainly would be unable to prove guilt beyond a reasonable doubt at trial," McQuade said.
So, it's possible the DOJ pressed forward with the case it knew it couldn't prove. Then the prosecution itself becomes the punishment. This has been the allegation of the Trump administration's use of the Justice Department by legal scholars. Cases are being brought against Trump's enemies list not for the purpose of justice, or even to win a case, but to cost the individual money and to publicly attack them personally while using taxpayer funds to do it, as Just Security's Adam Klasfeld and Ryan Goodman wrote in late 2024 before Trump was even elected.
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Former federal prosecutor Joyce Vance is disputing a Wednesday claim by President Donald Trump's administration that it can sideline investigations by Bar Associations around the country.
According to Bloomberg Law, the Justice Department is working to "suspend stat bar ethics investigations" targeting DOJ lawyers. The DOJ has clashed with judges across the U.S. and judgment, behavior and legal violations have prompted complaints to state Bar Associations as a result.
According to the proposal, which was posted in the Federal Register on Wednesday, the DOJ wants to do its own internal review of the lawyers rather than the regulatory association. Critics see it as diminishing the power of the Bar Associations as a whole.
Commenting on the report on X, Vance called it "bunk."
"State bars license attorneys and consider misconduct allegations. Historically, state bars have deferred to DOJ‘s internal discipline process as a courtesy, but they are not obligated to, and the AG has zero authority to suspend state bar operations," Vance said about Attorney General Pam Bondi.
"DOJ can’t avoid investigation and incredible allegations of clear, ethical violations, like lying to or misleading judges and failing to follow court orders if state bars want to pursue them," Vance added. "The process is usually long and involves wrist slaps instead of jumping straight to disbarment, but egregious cases deserve serious discipline."
University of Michigan Law School Professor Barbara McQuade agreed.
"All DOJ lawyers are members of a state or DC bar, and subject to its ethics rules and penalties, up to disbarment. Subverting state bar authorities would give DOJ lawyers carte blanche to violate ethics rules," she said about the report.
Self-described "recovering lawyer" Jeff Jacobs commented, "You would think that, given the ethical implications of many of the actions by this DOJ and its state-licensed attorneys, the administration would go out of its way to avoid antagonizing state bar associations."
In January, the Texas Supreme Court ended the 42-year reliance on the American Bar Association for law school accreditation because the ABA has diversity, equity, and inclusion (DEI) requirements. Florida has now done the same. Gov. Ron DeSantis (R-Fla.) has proposed his own accreditor for Florida law schools instead.
If Bondi's proposal moves forward after a public comment period, “whenever a third party files a bar complaint alleging that a current or former Department attorney violated an ethics rule while engaging in that attorney’s duties for the Department, or whenever bar disciplinary authorities open an investigation into such allegations,” the attorney general “will have the right to review the complaint and the allegations in the first instance,” it states.
Bondi is calling ethics probes into attorneys at the DOJ part of an anti-Trump "weaponization" effort.
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Political scientist Austin Sarat on Wednesday warned that
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A federal appeals court has now lifted restrictions on U.S. Immigration and Customs Enforcement (ICE) in how they're meant to deal with local protesters in Minneapolis, Minnesota.
Politico legal correspondent Kyle Cheney reported Wednesday that the Eighth Circuit Court of Appeals — whose jurisdiction encompasses Minnesota along with six other states — has now granted a motion by the Department of Homeland Security (DHS) to impose a stay on a temporary restraining order (TRO) put in place by U.S. District Judge Kate Menendez (an appointee of former President Joe Biden). This means that the restrictions will no longer be in place while the DHS appeals them to the circuit court.
After Judge Menendez's TRO was stayed, this means that ICE agents will now once again be allowed to use less-than-lethal munitions on protesters, like flash-bang grenades and tear gas, and make arrests. Politico reported that the TRO was initially put in place following a lawsuit filed over DHS' heavy-handed response to protests that unfolded in the wake of the fatal shooting of U.S. citizen Renee Good.
DHS and ICE had previously been prohibited from "using pepper-spray or similar nonlethal munitions and crowd dispersal tools against persons who are engaging in peaceful and unobstructive protest activity." Judge Menendez's order also forbade federal agents from pulling over citizens for following them, as long as they were keeping an "appropriate" distance.
The overturning of Menendez's TRO comes on the heels of the Trump administration telling military personnel to prepare for a "possible mobilization to Minneapolis." The Department of Justice (DOJ) has also announced federal investigations into Minneapolis Mayor Jacob Frey and Minnesota Gov. Tim Walz – who have encouraged citizens to film and document ICE actions — for allegedly impeding law enforcement operations.
Former U.S. Attorney Joyce Vance recently compared the Trump administration's handling of Minneapolis protesters to former Birmingham, Alabama Sheriff Bull Connor's treatment of protesters during the Civil Rights Movement. She also condemned the DOJ for objecting to Judge Menendez's order, writing on her Substack: "DOJ has stopped being the independent gem in the crown of the American rule of law."
"Now, it’s just Trump’s law firm," she wrote. "He’s finally found his Roy Cohn, a number of them."
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In a court ruling posted on Wednesday, U.S. District Court Judge Charles Breyer ruled that the National Guard soldiers must leave Los Angeles. But his comments on the ruling include a sharp warning.
Ryan Goodman, a legal scholar and editor-in-chief of JustSecurity.org, highlighted a key excerpt on page 10:
"Indeed, at the motion hearing, Defendants confirmed their position that, after an initial federalization, all extensions of federalization orders are utterly unreviewable, forever. That is shocking. Adopting Defendants’ interpretation of Section 12406 would permit a president to create a perpetual police force comprised of state troops, so long as they were first federalized lawfully. Such a scenario would validate the Founders’ 'widespread fear [of] a national standing Army,' which they believed 'posed an intolerable threat to individual liberty and to the sovereignty of the separate States,'" the judge wrote.
Goodman said that the case has "national implications."
The Atlantic's Quinta Jurecic called it a "drops mic" ruling.
Sorting through the ruling, legal analyst Joyce Vance also highlighted key points in the judge's decision.
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'Stop the clock': Ex-US atty says Judge Cannon weaponizing 'delay' to kill Jack Smith report
legal experts are encouraging the House Select Committee on the January 6 Attack to subpoena far right-wing activist and lobbyist Ginni Thomas, now that she is backing out from appearing barely weeks after saying she“looks forward” and “can’t wait” to testify.
In an 8-page letter, her attorney says he needs “a better justification for why Mrs. Thomas’s testimony is relevant,” The Washington Post reports.
The Committee has been interested in speaking with her since at least last summer but had declined to invite or subpoena Thomas, the spouse of a sitting U.S. Supreme Court Justice. After evidence of email correspondence between her and the infamous “coup memo” author John Eastman, the Committee said they would like to talk with her. She quickly told the right-wing Daily Caller she “can’t wait to clear up misconceptions. I look forward to talking to them.”
Virginia Thomas, who goes by “Ginni,” is a longtime and powerful name in Washington who actively, according to reports, pushed dozens of state and federal officials to overturn the 2020 presidential election. Her attorney says he sees no reason for her to speak with the Committee.
“Mrs. Thomas has expressed a willingness to try to come before the Committee as a means of clearing her name,” Thomas’ attorney Mark Paoletta wrote in a letter, HuffPost adds. “But, based on my understanding of the facts … I do not believe there is currently a sufficient basis to speak with Mrs. Thomas.”
Former U.S. Attorney Joyce Vance, now a law professor and MSNBC/NBC News legal analyst, is calling for Thomas to be subpoenaed.
“Thomas said she’d testify during the uproar,” Vance said via Twitter. “Now, she’s hoping to duck under the radar with so much other news. She should be subpoenaed like any other witness & if she fails to appear, treated like Bannon and Navarro, as she has no privilege to avoid testimony.”
Attorney, MSNBC anchor, and legal analyst Katie Phang tweeted, “SUBPOENA her. Now.”
Seth Abramson, an attorney and author said: “Only by issuing a subpoena to Ginni Thomas *now* does Congress have a chance of being able to work through her inevitable legal challenges and refer her to DOJ for a Criminal Contempt indictment *before* a possible handover of Congress to the insurrectionists in early 2023.”
Miranda Yaver, PhD, a political science professor who teaches courses on law at Wheaton also tweeted, “Subpoena Ginni Thomas.”