The Trump administration is pressing ahead with a probe targeting Obama-era officials and could bring charges against any number of top former government officials.
The Justice Department (DOJ) this week moved to convene a grand jury to investigate claims that Obama officials politicized intelligence regarding Russian interference in the 2016 presidential election.
It marks a major escalation by Attorney General Pam Bondi over allegations that could reach as high as former President Obama himself, though the exact targets of the probe are unclear.
The investigation comes after Director of National Intelligence Tulsi Gabbard claimed officials committed “treasonous conspiracy” and criminally referred them to the DOJ.
Here are four key questions as the grand jury convenes:
Who could be charged?
The Justice Department has not named specific targets of its probe, but has signaled interest in several top Obama administration officials.
Gabbard’s office last month released a report suggesting the Intelligence Community suppressed intel showing Russia “did not impact” the 2016 presidential election via cyber-attacks on infrastructure.
A timeline released alongside the report points to a Dec. 9, 2016, meeting where top Cabinet and administration officials gathered including:
- James Clapper, Director of National Intelligence
- John Brennan, Central Intelligence Agency director
- Susan Rice, national security adviser
- John Kerry, secretary of State
- Brian McKeon, principal deputy under secretary of Defense for policy
- Loretta Lynch, attorney general
- Andrew McCabe, deputy FBI director
At the end of the meeting, Clapper’s executive assistant sent an email to Office of the Director of National Intelligence leaders to create a new assessment “per the President’s request” detailing the “tools Moscow used and the actions it took to influence the 2016 election,” the memo said.
It signals that Obama himself could come under scrutiny from the probe as well.
President Trump asserted last month his administration found “irrefutable proof that Obama was seditious, that Obama was trying to lead a coup.” He has also accused Obama of “treason.”
Other officials, including former FBI director and longtime Trump foe James Comey, are also named in the papers.
What charges could be brought?
No charges have been brought at this stage, and it’s not clear what counts would fit the allegations.
And it may be too late to pursue charges, as federal law oftentimes sets the statute of limitations to five years from the time of an alleged crime. The actions in question carried out by Obama officials occurred nearly a decade ago, in 2016 and 2017.
Treason does not have a statute of limitations, but the charge is rarely alleged. The last conviction was in 1952, when a Japanese-American man was found guilty of tormenting American prisoners of war. Only one treason case has since been brought, in 2006 for making al-Qaeda propaganda, but that defendant was killed in a drone strike before he stood trial.
However, any effort to charge Obama over the 2016 intelligence could be stopped in its tracks by the Supreme Court’s ruling on presidential immunity, which would shield many of the former president’s “official acts” from criminal scrutiny.
What happens next?
The grand jury will convene in secret, where prosecutors will explain to them the law and present evidence. That could include witness testimony, as grand juries have subpoena power.
After reviewing the evidence, the grand jurors will vote on whether to indict.
We don’t know where the grand jury will be convened. Prosecutors generally must bring indictments where the alleged crimes occurred, meaning Washington, D.C., is one plausible venue.
But Trump in the past has voiced gripes with his own previous prosecution in the nation’s capital, and the Justice Department could attempt to bring charges somewhere else.
Why now?
The administration’s decision to dig into the past has raised alarm among Trump’s critics that he’s following through on his campaign promise of retribution against those he believes have wronged him.
It also comes as the president’s political base has splintered over his administration’s handling of information related to disgraced financier Jeffrey Epstein, igniting a political firestorm.
Obama’s office issued a rare public statement last month calling the allegations “bizarre” and “a weak attempt at distraction.” Others named in the papers have rejected any notion of wrongdoing.
But Trump’s allies have so far backed the probe.
“Dear Lawfare Democrats: Again, lawyer up,” Mike Davis, president of the Article III Project, posted on X.
“Justice is definitely coming. Nobody is above the law. Definitely not you.”
Welcome to The Gavel, The Hill’s weekly courts newsletter from Ella Lee and Zach Schonfeld. Reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48). Not on the list? Sign up here or using the box below.
Supreme Court raises stakes in redistricting battle
The Supreme Court has raised the stakes in the battle over Louisiana’s congressional map.
On Friday evening, the justices issued a brief order suggesting they will use the case to consider ending race-based redistricting under Section 2 of the Voting Rights Act (VRA).
It would mark the most significant blow to the landmark, 60-year-old law since 2013, when the Supreme Court in Shelby County v. Holder struck down a provision that required states with a history of racial discrimination to seek preclearance before enacting new voting rules.
Republicans are bullish that the Supreme Court’s 6-3 conservative majority will similarly invalidate Section 2, the VRA’s central remaining provision that prevents voting maps and practices that abridge someone’s right to vote based on their race.
And the court may now have the case to do it.
Louisiana Republicans begrudgingly added a second majority-Black congressional district after a lower court used Section 2 to invalidate the state’s congressional map with only one.
Now, the state is defending against a group of self-described “non-African American” voters, who convinced a lower panel that adding the second district amounts to a racial gerrymander that violates the Fourteenth Amendment’s equal protection guarantee.
The justices were set to decide the case, Louisiana v. Callais, this term. Instead, the court in June said without explanation that it will rehear the case following the summer recess.
Questions lingered for weeks as court watchers awaited an announcement of what legal issue the justices would consider. In Friday’s order, the justices broke their silence, and they appear to be going big: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.“
Though just a single sentence, it appears to set up a direct battle over the future of Section 2.
Several of the Supreme Court’s conservatives have signaled an openness to dismantling the provision by ruling it is no longer a “compelling governmental interest” that can justify race-based considerations.
“The Court’s long said that race-based remedial action must have a logical end point, must be limited in time, must be a temporary matter. Of course, in school desegregation and university admissions,” Justice Brett Kavanaugh said at oral arguments in March, referencing the court’s recent decision gutting affirmative action.
Other justices have been more forceful. Conservative Justice Clarence Thomas wanted to resolve Louisiana’s case in June without waiting. He wrote that Section 2 has an “intractable conflict” with the 14th Amendment and should be reined in.
“These cases put the Court to a choice: It may permit patent racial gerrymandering under the auspices of §2 compliance, or it may admit that, as the Court has construed the statute, a violation of §2 is insufficient to justify a race-based remedy,” Thomas wrote.
“That decision should be straightforward. Nevertheless, the Court demurs.”
The developments come amid a flurry of mid-decade redistricting activity across the country, with Texas ground zero for the fight.
Texas Republicans are looking to adjust their congressional map in response to a push from Trump, who wants to shore up the GOP’s chances of keeping the House majority in next year’s midterms. Trump said Tuesday that the GOP is “entitled” to five more seats in Texas.
It’s a push enabled by a Supreme Court decision that Roberts authored in 2019, Rucho v. Common Cause. The chief justice and other conservative members ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. The 5-4 decision landed along ideological lines, with four liberal justices in dissent.
Some state constitutions prohibit partisan gerrymandering, allowing lawsuits to still proceed brought in state courts there. But in Texas, Republicans are set to move ahead if they can resolve a standoff with Democrats, who denied a quorum by fleeing to Illinois and other blue states.
Two dozen judges failed to recuse, watchdog says
Judicial ethics are back in the spotlight after watchdog group Fix the Court issued a report last Wednesday revealing two dozen federal judges did not recuse in cases involving the universities at which they teach.
“This has conflict written all over it,” Gabe Roth, the group’s executive director, said in a statement. “If you teach at a law school, and especially if the law school is paying you, you shouldn’t be sitting on cases involving the university that the law school is a part of.”
Roth added that, even if a judge is an adjunct professor, the average observer would be right to see some bias from the connection between a judge and university.
“Judges’ unwillingness to recuse in these cases does the third branch no favors, especially at a time when judicial ethics is more closely being monitored by the general public,” the report said.
Of the judges who failed to recuse, six were appointed by Obama, four by former President George W. Bush, three by former President Clinton, two by Trump and one each by former Presidents Reagan and Biden. Seven others were magistrate judges, who are not presidentially appointed. Some 22 of the judges sit on district courts and two sit on appeals courts.
The report is also noteworthy given it’s often the Supreme Court, not lower courts, that’s under fire for apparent breaches of the judiciary’s strict ethics standards.
The justices adopted a code of conduct in 2023 amid heightened scrutiny after a series of reports detailed various undisclosed luxury trips, gifts and questionable extrajudicial activities involving multiple justices.
Though Thomas and Justice Samuel Alito took most of the heat, Justice Sonia Sotomayor also came under fire for allegedly pushing colleges to purchase her books when she traveled to their schools. She also was criticized for failing to recuse from cases involving Penguin Random House, which published her books and paid her hefty advances.
On Tuesday, Fix the Court newly released audio of a July 2024 appearance Sotomayor made at the University of Zurich, where she said “virtually all” of her fellow justices “are committed” to the court’s new ethics code but acknowledged a misstep on her part.
Striving to act ethically, the court’s most senior liberal justice said, “does not mean that mistakes are not made.”
“I’ve made one,” she continued. “I failed to notice that there was a party of my book publisher who was in a case.”
Roth said in a statement that the justice has “made others, of course” but added the admission is notable.
“Any acknowledgement of error by a justice is a big deal,” he said.
Environmental groups challenge ‘Alligator Alcatraz‘
Immigration lawyers aren’t the only ones hoping to topple Florida’s “Alligator Alcatraz.”
Environmental groups Friends of the Everglades and the Center for Biological Diversity will head to a federal courthouse in Miami this morning, hoping to convince a judge that the facility’s construction should be halted for violating a bedrock environmental law.
The groups argue Alligator Alcatraz doesn’t comply with the National Environmental Policy Act (NEPA), which requires the federal government to consider environmental consequences before approving infrastructure projects ranging from roads to oil and gas pipelines.
The immigrant-holding facility is built near the Dade-Collier Training and Transition Airport in a 30-square-mile area otherwise surrounded by the Everglades. The lawsuit calls it “arguably the most sensitive location in Florida,” raising concerns the construction has created “ongoing and material environmental harms.”
“The need for immediate injunctive relief has become even more obvious and urgent since hundreds of detainees have been moved to the Site. Every day there are disturbing reports of inhumane and chaotic conditions,” their motion reads.
The parties have signaled plans to call a handful of witnesses. The federal government may call an Immigrations and Customs Enforcement official to the stand, court records show, while the plaintiffs have listed several of their environmental experts and state Rep. Anna Eskamani (D).
The Miccosukee Tribe of Indians, which has intervened to challenge Alligator Alcatraz alongside the groups, listed several tribe officials who work on environmental issues as potential witnesses.
Wednesday’s hearing will be overseen by U.S. District Judge Kathleen Williams, an Obama appointee.
The Trump administration contends Williams’s court, the Southern District of Florida, is not the proper venue. The case instead must be brought in the Middle District of Florida, where Alligator Alcatraz is located, the administration says.
And beyond the venue issue, the Justice Department argues the plaintiffs can’t prove a NEPA violation because federal authorities have not directed or controlled the construction work.
“Florida has received no federal funds, nor has it applied for federal funds related to the temporary detention center. Courts cannot adjudicate hypothetical future funding decisions or render advisory opinions on contingent scenarios that may never materialize,” the Justice Department wrote in court filings.
As Williams weighs what to do, immigration lawyers are involved, too.
Immigration organizations and a group of migrants detained at Alligator Alcatraz are suing over allegations that the administration is not providing them with attorney access. They are represented by the American Civil Liberties Union and Americans for Immigrant Justice.
U.S. District Judge Rodolfo Ruiz, a Trump appointee, will hold a hearing on Aug. 18 on whether to issue an injunction. On Monday, he ordered the federal government to produce any written agreements it has struck with Florida concerning the facility.
Sidebar
5 top docket updates:
- Pirro confirmed: The Senate in a rare Saturday session confirmed multiple Trump nominees including Jeanine Pirro, the former district attorney and Fox News host, as U.S. Attorney for the District of Columbia in a 50-45 vote along party lines.
- Immigration raid restrictions upheld: A federal appeals court panel Friday night largely rejected the Trump administration’s bid to lift judge-imposed limits on “indiscriminate” immigration raids in the Los Angeles area.
- TPS revocation blocked: A federal judge on Friday blocked the Trump administration from ending Temporary Protected Status (TPS) for roughly 60,000 citizens of Nepal, Nicaragua and Honduras as litigation continues. The Supreme Court previously lifted another judge’s order that had halted an end to TPS for Venezuelans and Haitians.
- Kavanaugh defends emergency decisions: Justice Brett Kavanaugh on Thursday defended the Supreme Court not explaining many of its emergency decisions involving the administration, warning it can sometimes create a “lock-in effect.”
- Deal reached on Murdoch deposition: Attorneys for Trump agreed to delay their demand that Rupert Murdoch sit for an expedited deposition in Trump’s lawsuit against The Wall Street Journal. The 94-year-old media tycoon must provide “regularly scheduled updates” about his health so Trump can renew his demand if Murdoch has a health scare.
In other news:
- Legal watchdog scales up: The left-leaning legal organization Democracy Forward has launched an appellate practice, citing its desire to handle appeals in its own cases and in cases brought by aligned organizations.
- Mic dropped: Rapper DeAndre Cortez Way, better known as Soulja Boy, was arrested on suspicion of being a felon in possession of a firearm in Los Angeles.
- Bar exam: A series of creative cocktails were served at a celebration of former Trump lawyer Emil Bove’s nomination to the U.S. Court of Appeals for the 3rd Circuit.
- Habba hurdles: A judge signaled he’ll seek further briefing from a criminal defendant who claims Trump’s workaround to keep Alina Habba as U.S. attorney in New Jersey is illegal. The basis for the defendant’s claim? U.S. District Judge Aileen Cannon’s ruling throwing out criminal charges against Trump himself. Politico reported it first.
- Jailhouse blues: Ex-Rep. George Santos (R-N.Y.) penned an essay detailing his experience reporting to prison.
On the Docket
Don’t be surprised if additional hearings are scheduled throughout the week. But here’s what we’re watching for now:
Today:
- A federal judge in Florida is set to hold a preliminary injunction hearing in a lawsuit brought by environmental groups seeking to stop the construction of “Alligator Alcatraz.”
- A federal judge in D.C. is set to hold a preliminary injunction hearing in a challenge to the Department of Agriculture’s termination of hundreds of grants by claiming they relate to diversity, equity and inclusion.
- Another D.C. federal judge is set to hold a hearing ahead of the government’s expected motion to dismiss in FEMA chief financial officer Mary Comans’s lawsuit challenging her firing for making payments to New York City under the agency’s migrant housing grant program.
Thursday:
- A federal judge in California is set to hold a preliminary injunction in 20 Democratic state attorneys generals’ challenge to the Department of Health and Human Services’ decision to turn over state Medicaid data to other agencies.
- A federal judge in D.C. will consider the American Association of Physics Teachers’ request to block National Science Foundation grant cancellations and the government’s bid to dismiss the lawsuit.
Friday:
- A federal judge in Washington, D.C. is set to hold a status conference in the criminal case of Elias Rodriguez, who is accused of gunning down two Israeli embassy staffers earlier this year.
- Another D.C. federal judge is set to hold a preliminary injunction hearing in the National Endowment for Democracy’s challenge to the Treasury Department’s decision to withhold $167 million of congressionally appropriated funds.
- A federal judge in Virginia is set to hold a preliminary injunction hearing in Georgetown professor Badar Khan Suri’s challenge to his detention. He was released in May as the litigation proceeds.
Monday:
- A federal judge in California is set to begin overseeing a three-day bench trial in California Gov. Gavin Newsom’s (D) challenge to the Trump administration’s deployment of the National Guard. He will consider whether the troops’ actions on the ground violated the Posse Comitatus Act, which limits the military from conducting civilian law enforcement domestically.
Tuesday:
- The bench trial in Newsom v. Trump is expected to resume.
What we’re reading
- CBS News’s Scott MacFarlane: Several former Justice Department attorneys seek elected office — some to fight policies enacted by Trump
- The New York Times’s Hamed Aleaziz, Julie Turkewitz and José Bautista: ‘Can We Extradite Him?’ How U.S. Officials Grappled With the Release of a Triple Murderer
- The Associated Press’s Kate Payne: DeSantis set a Florida record for executions. It’s driving a national increase
- SCOTUSblog’s Kelsey Dallas: Will the Supreme Court hear Ghislaine Maxwell’s case?
- Law.com’s Laura Lorek: Diving With Sharks Shapes Lawyer’s Legal Strategy
Thanks for reading! Check out more newsletters from The Hill here. See you next time.
