But don’t be surprised if gamesmanship by Trump’s attorneys causes her to delay the classified documents trial until after the November 2024 election. At the heart of such a move would be Manhattan District Attorney Alvin Bragg’s questionable criminal prosecution of Trump for allegedly concealing hush money payments to porn actress Stormy Daniels,

The Justice Department proposed a Dec. 11, 2023 trial to Judge Cannon for the classified documents case, citing the Speedy Trial Act obligating federal judges to “assure a speedy trial.” Trump’s attorneys responded with a request for an “indefinite” trial postponement, arguing that more time was needed for pretrial motions, discovery and resolution of issues under the Classified Information Procedures Act, which governs admission into evidence of classified documents.

These are standard, off-the-shelf arguments in a case like this one. However, Trump’s attorneys have also contended that the Justice Department's schedule would interfere with President Trump’s campaign for president where, as “the likely Republican nominee,” he will be consumed with campaigning “until the election on November 5, 2024.” Left unsaid is that, if the trial is adjourned until after the election and Trump is the victor, he will almost certainly order his new Justice Department to dismiss the classified documents case.

If Judge Cannon grants the motion for an indefinite delay, she will confer an exemption from speedy trial rules on Trump that is routinely denied to other busy private individuals such as corporate executives. Special favoritism for Trump got her in trouble last year when she was reversed and rebuked by an appellate court for creating an “unprecedented exception” in the law for Trump and other former presidents by barring the Justice Department from using the classified documents in its investigation.

At the same time, Trump’s off-the-shelf arguments have merit. So what if Judge Cannon looks for a middle ground and sets the trial date in March or April of 2024? That would give Trump an extra four or five months to prepare, but still be some distance from the November election.

But then that would put her on a collision course with Bragg's Stormy Daniels case, which is currently set for trial on March 25 in Manhattan.

But wait, you ask — if Trump is so busy running for president, how can he go to trial in Manhattan on March 25? Actually, Trump’s attorneys invited that trial date when, at his  arraignment in April, they objected to Bragg’s proposed January 2024 trial date but then represented to the court, without asking for an indefinite delay or mentioning Trump’s consuming campaign commitments between now and the election, that “we think later in the spring next year [2024] might be...a more realistic plan at this point.”

In other words, Trump is too busy campaigning for president to appear in a federal court in Florida before November 2024, but not too busy to appear in a Manhattan state court before then. In fact, Trump’s attorneys, having invited a spring 2024 trial in New York, can now cite that very trial date to Cannon as one reason for an indefinite delay of the classified documents case.

If that sounds like Cannon is being played — well, that’s what it sounds like.

Cannon could take the March 25 trial in New York as a reason not to look for a middle ground. She could thus put the classified documents trial off until after the election. Such a decision would be followed by an inevitable Justice Department appeal, which could take months to resolve.

Setting a trial date is a routine matter in most federal criminal cases, but in this one, it could be the ball game.

Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. His newest book, Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia, is due out in December.

Instead of complying, Rahimi threatened another woman and discharged guns in public on five occasions. Rahimi pled guilty, but then appealed after the Supreme Court handed down its Second Amendment decision last year in NYSRPA v. Bruen. In that freighted decision, the court expanded Second Amendment rights to public places for the first time in history. Beyond that, however, it recast the basis for determining the constitutionality of current gun laws by asking whether they are “consistent with this Nation’s historical tradition of firearm regulation.” Old gun laws need not be “dead ringers” for current laws, but they should be similar or “analogous,” wrote Justice Clarence Thomas in his majority opinion.

Based on that standard, a three-judge panel of the Fifth Circuit in Texas unanimously overturned Rahimi’s conviction, declaring the federal law unconstitutional under Bruen. The three conservative Republican appointees concluded that there was a “lack of a distinctly similar historical regulation” parallel to the federal domestic violence law, even though the government presented several types of examples. This conclusion points up one of the manifold problems with the Bruen standard: in the search for similar historical gun laws, it allows judges to define “similar” as “identical to.”

My decade-long study of old gun laws suggests that this subject is far more complex than the circuit court might admit. After all, up until the latter half of the 19th century, domestic violence was not considered a crime, and men exercised complete control over their families. Under American law, acts of violence committed by husbands against wives or children were “implicitly accepted or ignored.” The first modern law to criminalize wife-beating was passed in Tennessee in 1850, a standard that didn’t become universal until the early 1900s.

But what about the similar old gun laws offered by defenders of the law? The court rejected, for example, comparisons to old laws that disarmed or kept guns from categories of persons, including Indigenous people, enslaved persons and those who refused to take an oath of allegiance to the government.

Such comparisons, the court said, didn’t apply because they involved categories of people who were not treated on a case-by-case basis. Because the modern law under challenge takes firearms from individuals under restraining orders, the court insisted that similar old laws must have gun confiscation as their penalty for the comparison to be valid. The few other instances offered by the law’s defenders were dismissed as anomalous “outliers.”

But other old gun laws with gun-confiscation penalties escaped court scrutiny. For example, from the 18th to the start of the 20th centuries, at least six states (Delaware, Maryland, New Hampshire, New Jersey, North Carolina and Virginia) enacted hunting laws where the penalty for violation — including such offenses as hunting on private or restricted lands, or at restricted times, or hunting certain types of protected game — was forfeiture of the person’s gun. 

Which offense is more serious: violating hunting laws or inflicting physical and emotional injury on another person? If guns were taken from those hunting deer on private land in the 1700s, why not apply the same penalty for actual injury to a human being now?

Or what about these old laws? In the “Old West,” Texas (in 1879) and Arizona (in 1889) passed laws that said anyone who violated laws against carrying weapons had their guns confiscated. In Pennsylvania in 1810, those who violated that state’s anti-dueling law were “deprived of all rights of citizenship” (including, one assumes, the right to have a gun) for seven years.

As noted, the appellate court rejected comparisons to old gun laws that did not specifically disarm those found guilty of various offenses. But those who committed various violations of old gun laws were typically subject to jail time. Since the incarcerated could not bring guns with them, any more than they can today, doesn’t such a penalty amount to deprivation of gun rights for the duration of incarceration? Why should those historical gun laws not provide precedent? 

Further, the fact that relatively few old gun laws did not include gun confiscation as a penalty is at least partly explainable by two facts that the court did not consider. First, as criminological historian Randall Roth has found, murder rates in the Colonial and early Federal Era were low, and when they occurred, firearms were rarely used. Second, militia-eligible men were expected to own and maintain military-grade firearms during this same period in case they were called up for duty. This concern for national defense might have discouraged gun confiscation as a penalty.

It is often said that hard cases make bad law, and critics have already suggested that this case may be a “bad vehicle” for fixing Bruen. However, this is a good case for the Supreme Court’s consideration for at least one reason: it reveals the manifold problems with the Bruen standard.

Robert J. Spitzer is Distinguished Service Professor emeritus of political science at SUNY Cortland, and an adjunct professor at the College of William and Mary School of Law. He is the author of six books on gun policy, including “The Gun Dilemma” and the new 9th edition of “The Politics of Gun Control.”

Today, about 25 percent of the world’s total prison population is in the United States. Among the states, Alaska, Mississippi, Louisiana, Arkansas and Oklahoma incarcerate the most people per capita.

But, in recent years, things began to change. According to The Sentencing Project, a non-governmental organization that tracks prison populations, “By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.”

Several things contributed to that change, including decreases in crime rates, changes in drug policies, and worries about the financial cost of keeping large numbers of people in jail.

The COVID pandemic certainly accelerated the decline in the rate at which this country put people behind bars. It led states and the federal government to release non-violent offenders in order to limit the spread of disease among incarcerated populations.

A Harvard University study points out that “Between 2020 and 2021, the overall prison population decreased by 17.3 percent.” It notes, “During the height of the COVID-19 pandemic, the U.S. experienced a historic reduction in prison population as admissions declined and many incarcerated people were released — both routinely and as part of state and federal public health strategies to decrease spread of the virus.”

Crime rates fell even as people were let out of jail and fewer were arrested, and COVID gave public officials a chance to change the narrative about incarceration in the United States.

With the official end of the pandemic, this country now faces a choice: whether to resume its love affair with incarceration or to chart a new path.

Some states have already taken advantage of COVID and what they learned from the pandemic, inspiring the release of inmates to close prisons and shifting their thinking about incarceration.  Others should follow their lead.

Take California, which, despite its liberal reputation, is second only to Texas in the size of its prison population. In March of this year, Democratic Gov. Gavin Newsome announced that “San Quentin State Prison — the oldest and most notorious prison in California and home to the largest ‘death row’ in the United States — will be transformed from a maximum-security prison into a one-of-a-kind facility focused on improving public safety through rehabilitation and education.”

Such an announcement would have been unthinkable at the height of the tough-on-crime, “lock ‘em up and throw away the key” era.

As a press release from the governor’s office explained, “The historic effort at San Quentin, never pursued at this scale in the United States, will serve as a nationwide evidence-backed model to advance a more effective justice system that builds safer communities.”

Moreover, according to the state’s Department of Corrections and Rehabilitation, during the pandemic the prison population fell from around 110, 000 in 2020 to about 95,000 in 2023. This decline signals “a sea change in California criminal justice, representing the wind-down of the tough-on-crime policies that packed prisons in the 1990s.” 

In New York, the total inmate population in prisons and jails experienced a decline during the pandemic from 64,306 in 2019 to 47,003 in 2022 — a 26.9 percent drop in three years. Last year, the Empire State closed six state prisons that together had an “occupancy rate” of under 44 percent. Closing those prisons will save the state around $140 million per year.

The New York Post reports that “Other blue states in the Northeast have also seen big drops in the number of incarcerated people, including Massachusetts and Connecticut, which respectively saw 24.3% and 21.3% drops between 2019 and 2022.”

Late last month, the state of Washington supplied more evidence of a post-COVID change in its approach to punishment when it announced its intention to close one of its minimum security prisons — the first time it has closed a prison since 2011.

According to its Department of Corrections, “Prison populations have declined in Washington in recent years, a trend … [that] will accelerate over the next 10 years. Only 70% of beds are occupied in the DOC's 12 prisons across the state of Washington.”

While Southern states generally resisted reductions in prison populations during COVID, in bright-red Mississippi, which has long had one of this nation’s highest incarceration rates, the prison population has fallen starting before and continuing through the pandemic. In January 2014 it “was 21,008. By January 2022, that figure had declined by almost a fifth to 16,931.”

But the story of the COVID slowdown in incarceration is not an entirely happy one for advocates of prison reform. Not surprisingly, it exacerbated the racial disparities that have long plagued the American prison system, where Black men are six times as likely to be put in jail or prison than are white men.

Professor Brennan Klein and his colleagues found that “White incarcerated people disproportionately benefited from the (COVID) decrease, while the percentage of prisoners of color spiked.”

And there are other worrisome trends. As the pandemic fades and COVID reductions in imprisonment end, prison populations in many places in the United States are beginning to creep back up.

But it is not too late for public officials to avoid going back to the old ways of using incarceration as the primary policy response to crime. They should take advantage of growing agreement among liberals and conservatives that putting people behind bars is extremely costly, contributing to budget crises in state after state.

While liberals tend to emphasize racial justice as a reason to limit incarceration, leading conservatives see “the expansion of prisons as a case of big government run amok.” Alongside Newt Gingrich, they are urging Americans to rethink how we use imprisonment. During COVID,  people on both sides of the political aisle learned that, as Professor Carrie Leonetti observes, “much incarceration is unnecessary.” 

In the end, if one good thing can come from the pandemic, it is the lesson that this country needs to use incarceration less and shed the “incarceration nation” label. Instead, it should focus on social policies and law enforcement strategies that do more to keep Americans safe and benefit the citizens of this country more broadly.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.

For instance, in 2001, Portugal took a pioneering approach to its drug crisis and implemented a comprehensive public health-based drug policy approach. This included decriminalization of personal drug possession while maintaining criminal penalties for drug trafficking. At the time, Portugal faced a severe heroin addiction crisis and the highest rate of HIV infections in the European Union.  

Portugal’s approach to drug policy yielded positive results, including drug overdose death rates among the lowest in the European Union.  

Portugal’s experience demonstrates that a comprehensive public health approach to addiction, one that is consistently funded and supported, can yield positive outcomes and save lives. Dr. João Goulão, one of the original architects of Portugal’s drug law, has stressed that the country’s approach was comprehensive, with drug decriminalization as just one part of its plan for reform. Goulao has also emphasized that other countries should not simply “copy and paste” Portugal’s approach, but rather adapt it to fit the social norms of each country.  

Recent criticism of Portugal’s approach only serves to emphasize one of these lessons: Consistent funding is essential to sustained, long-term results. Below are three key lessons from Portugal that could benefit the United States.  

1. Treat substance use disorder as a matter of public health, not a crime. Portugal’s decision to decriminalize drug possession was rooted in recognizing that substance use disorder is a health issue, not a criminal offense. By adopting this perspective, Portugal created an environment where individuals with addiction or problematic drug use could seek help without fear of punishment. Individuals in Portugal who have a 10-day supply of drugs are referred to Commissions for the Dissuasion of Drug Addiction (CTD). The CTD panels consist of trained professionals who provide personalized and targeted assistance to individuals in possession of small amounts of a drug. The commission aims to dissuade new drug users, refer people in need of treatment to services and provide referrals to other needed services. With this tactic, Portugal has created a system that addresses the multifaceted nature of addiction. The U.S. has made some progress in recognizing substance use disorder as a disease and reforming drug policies; however, the emergence of fentanyl in the drug supply has rekindled a focus on criminalization as a response. At Georgetown University Law Center’s O’Neill Institute for National and Global Health Law, where I am director of the Addiction and Public Policy Initiative, we conducted a review of state legislative actions in 2023 and found numerous bills that would increase mandatory minimums for fentanyl possession. A singular focus on incarceration and increasing mandatory minimum sentences has proven ineffective in decreasing drug use and substance use disorder.   
2. Invest substantial and consistent funding in public health services, including treatment and harm reduction.  Portugal’s success in reducing drug-related harms was, at the time, attributed to a commitment and robust investment in evidence-based treatment, prevention and harm reduction strategies. The country expanded its drug treatment facilities, including inpatient treatment centers and transitional housing, to ensure that individuals have access to the support they need to overcome addiction. Additionally, Portugal prioritized harm reduction measures, such as needle exchange programs, which have been crucial in reducing disease transmission through injection. Unfortunately, this initial financial investment has not been sustained. The U.S. has a unique opportunity right now, given opioid litigation proceeds and federal grants, to invest in long-term public health solutions. A 2014 analysis found that $1 spent on treatment saves more than $3  in crime reduction. However, long-term solutions require more than grants and short-term infusions of litigation proceeds.  
3. Allocate robust financial investments to data collection and reporting. The lack of data collection before Portugal’s comprehensive legislation has hindered the assessment of its successes and shortcomings. Recognizing this challenge, the country has made a concerted effort to prioritize data collection by conducting general population surveys and maintaining records for the CTDs. By investing in timely and accurate data collection, the U.S. can gain valuable insights into the effectiveness of measures to curb overdose deaths and provide quality treatment to people with substance use disorder. The Biden administration’s National Drug Control Policy calls for a more precise and timely data collection system to drive our drug policies. States also face these challenges, as seen in an audit conducted by Oregon’s Secretary of State about that state’s recent drug policy reform (Measure 110). The audit of Oregon’s recent efforts to decriminalize drug possession included improved data collection as one of its primary recommendations. 

As with the rest of the world, Portugal has felt the impact of the pandemic, and some circumstances in the country have changed. However, lessons can still be garnered from their experience.

By embracing and staying committed to reform, the U.S. can enhance its response to the overdose crisis. It is time we take decisive steps toward a more compassionate and public health-centered approach to drug policy. One that addresses public safety concerns while prioritizing access to treatment and support for those affected by substance use. By doing so, we can improve outcomes and save lives.  

Regina LaBelle is the director of the Addiction and Public Policy Initiative at Georgetown University Law Center’s O’Neill Institute. She also directs and teaches the Addiction Policy and Practice Master of Science program at Georgetown University’s Graduate School of Arts & Sciences. LaBelle served as the acting director of the White House Office of National Drug Control Policy (ONDCP) in the Biden administration and chief of staff at ONDCP during the Obama administration.

That’s what each of us thought when we learned that an innocent man was arrested twice, simply because he had the same name as someone with an outstanding warrant: David Sosa.

After all, both of us also share that name. 

When we learned about this case of mistaken identity, and about our namesake’s attempt to hold the police who put him through this accountable, we had to get involved. Alongside the Institute for Justice and two other men named David Sosa, we filed an amicus brief urging the United States Supreme Court to hear this important case. 

The case started in November 2014, when the innocent David Sosa was pulled over in Martin County, Florida. During the routine traffic stop, the officer ran his license and realized there was an arrest warrant for a David Sosa who has been wanted in Texas since 1992.

The officer overlooked all the signs that should have made it obvious that this was the wrong David Sosa. The innocent David Sosa had no tattoos, whereas the wanted David Sosa had tattoos. The two also had different heights, different weights, different dates of birth and different social security numbers.

The Martin County officer arrested the innocent David Sosa anyway and detained him for three hours. After multiple explanations to his jailers that they had the wrong man, they finally fingerprinted him and released him. 

As if one arrest based on mistaken identity wasn’t bad enough, it happened again four years later. Once again, it was the Martin County Sherriff’s Office, executing the same warrant.

This time, the innocent Sosa knew what was happening. He laid out all the proof he had that he was not the same David Sosa who had committed the 1992 crime in Texas. He told officers that he had already been stopped before and that none of his information matched the description of the suspect.

Unfortunately, that didn’t stop the police from going even further this time. The officer arrested Sosa, impounded his truck and kept him in jail for three days. 

After he was finally released, the innocent Sosa rightly felt like his rights had been violated — any of us would have — so he sued the officers. Initially, Sosa was able to overcome the officers’ claim that they were entitled to qualified immunity, a judge-made doctrine that shields government officials from civil liability when they violate someone’s constitutional rights, unless that right is “clearly established.” 

Unfortunately, the full 11th U.S. Circuit Court of Appeals reviewed Sosa’s case and ruled that he had “no claim” whatsoever against the officers. Under that logic, any one of us could be jailed simply based on the fact that we have the same name as a man who’s been wanted in Texas since the 1990s, and we would have no way to hold the officers who arrested us accountable.

We think that’s absurd. It flies in the face of everything we’re taught about justice in America. Simply put, nobody should be arrested just because he has the same name as a suspected criminal.

Police have all the tools at their fingertips to verify someone’s identity. There must be a way to hold law enforcement accountable if they refuse to use those tools before arresting people. 

If the David Sosa in Martin County, Florida, has no recourse when police wrongly arrest him twice based on just his name, then what is protecting us other David Sosas — or anyone else who shares a name with a criminal — from facing the same fate? The Supreme Court must hear this case and rule that the officers who arrested Sosa are not above the law. 

The authors of this op-ed are 51-year-old David Sosa of Mecklenburg, N.C., and 32-year-old David Sosa of Los Angeles. They have signed an amicus brief in the Supreme Court case Sosa v. Martin County.

In the meantime, policymakers in Washington should learn from this historic example and pass a D.C. Crime Control Board, based on 1995’s D.C. Financial Control Board.  

Davis, from Fairfax, Va., came up with the idea of the control board, sold it to Eleanor Holmes Norton, who still is the District’s representative in Congress, and they sold it to then-Speaker Newt Gingrich (R-Ga.), who put it on the suspension calendar where it passed overwhelmingly, to the Senate, where it passed by voice vote, to Bill Clinton, who signed the bill into law, and to D.C.’s notorious mayor, Marion Barry, who largely supported the measure. 

The D.C. Financial Control took the wheel from the corrupt D.C. council and steered the city from certain financial ruin to a vibrant and economically self-sufficient hub that attracted investment, new residents, and increased property values. 

The Financial Control Board sorted out city finances, enacted pro-growth policies, weeded out corruption, vetoed bad spending ideas, and provided grown-up leadership to a city that had spun out of control. Republicans supported the control board because it liked its pro-growth policies. Democrats liked the control board because it meant that the Republican-controlled Congress wasn’t going to repeal home-rule in its entirety. 

D.C.’s finances today are not the disaster that they were in the 1990s but crime is approaching the same levels as the deadly crack wars that swept the city during the Clinton years. And if the nation’s capital can’t control crime, a financial crisis will surely follow.

That’s why I am calling for Congress to pass legislation creating a D.C. Crime Control Board.

A crime control board will have total authority to stop crime in the city. It will do away with the D.C. Council’s ability to pass laws that make the city unsafe. It will directly take control of hiring the police chief and will be primarily responsible for hiring enough police officers to bring the force up to the numbers that it had before the pandemic. It will be directly in charge of D.C.’s attorney general and clean house to get rid of prosecutors who refuse to prosecute crimes. It will directly supervise the juvenile justice program and the youth summer jobs program. It will supervise D.C.’s education system efforts to prevent truancy and stop criminal behavior. 

D.C.’s political leaders, especially at the council level, have brought this on themselves. Phil Mendelson, the council chair, famously said that the district doesn’t have a crime crisis, despite the overwhelming evidence to the contrary. Charles Allen, who during the Black Lives Matter riots was the chairman of the Judiciary and Public Safety Committee at the Council, proposed cutting millions in funding to the police budget. Other council members have been similarly anti-police in their rhetoric and their votes. Things have gotten so bad at the council when it comes to crime control that even Mayor Muriel Bowser has campaigned against their pro-crime stances.  

The results in D.C. have been frightening, yet predictable. Carjackings are up. Murder rates are approaching crack-war levels. Street-crime is so common that most resident don’t even report them.  

Some of these crimes should shock the public consciousness. A Kentucky teacher in town for a training course at the Library of Congress is slain outside of a residence hall at Catholic University. A Lyft driver who served as a translator in Afghanistan and somehow survived there is killed in Northeast D.C. Teen-agers routinely gunned down. Toddlers murdered in cross-fires.  

None of this seems to shock us anymore. But it should. And it needs to stop. And it is needs to stop now.  

It is time for a D.C. Crime Control Board. Where is Tom Davis when you need him?

Feehery, a partner at EFB Advocacy, blogs at thefeeherytheory.com. He served as spokesman to former House Speaker Dennis Hastert (R-Ill.), as communications director to former House Majority Whip Tom DeLay (R-Texas) and as a speechwriter to former House Minority Leader Bob Michel (R-Ill.).

House Republicans have created a judiciary subcommittee, chaired by Rep. Jim Jordan (R-Ohio), on “the weaponization of the federal government.” Rep. James Comer (R-Ky.), chair of the House Oversight and Accountability Committee, has asserted that “the weaponization of the federal government against President Biden’s political rivals cannot go unchecked.”

In a reprise of their false claims about fraud in the 2020 presidential election, Republicans have kept Democratic “weaponization” on page one of their playbook, even though they have uncovered virtually no evidence of it. Moreover, in a classic example of the psychological concept of projection — attributing one’s own illicit motivations onto an opponent — Republicans turn out to be weaponization wannabes.

In May, Special Counsel John Durham, who was appointed by Attorney General Bill Barr to investigate possible wrongdoing by FBI and Department of Justice (DOJ) officials in their probe of alleged Russian collusion with the Trump campaign in the 2016 election, released his long-awaited report. After acknowledging that the FBI’s preliminary investigation was appropriate, Durham sharply criticized the agency for “confirmation bias” and a “lack of analytical rigor” in authorizing a full-scale probe.

In their rush to prove Democratic weaponization, Republicans went well beyond his actual findings and results in court. Durham did obtain a guilty plea from an FBI lawyer who altered a document used in a request for renewal of a wiretap, but he was only sentenced to 12 months’ probation by a judge who concluded his action was not politically motivated. Durham’s only other two prosecutions, of a Clinton campaign attorney and a Russian analyst, for making false statements to the FBI, resulted in acquittals.

Durham did not allege a “Deep State” conspiracy to defeat Donald Trump. He found that Hillary Clinton committed “no provable criminal offense.” He did not charge any high-level FBI or intelligence agent with a crime or propose major changes in DOJ policies. The flaws in the FBI investigation highlighted by Durham, it’s also worth noting, had already been identified by DOJ Inspector General Michael Horowitz. Most important, Durham confirmed that Attorney General Merrick Garland played no role in his investigation and “never asked me not to indict anyone.”

None of this deterred Judiciary Committee Chairman Jordan from proclaiming, “Seven years of attacking Trump is scary enough. But what’s more frightening is any one of us could be next.”

Last month, David Weiss, the U.S. Attorney for Delaware, who had been appointed by Attorney General Barr to conduct an investigation of Hunter Biden, negotiated a guilty plea to two misdemeanor charges of willfully evading federal income taxes and settled a felony charge of lying on an application for a gun license. Since the case has not yet been fully resolved, Weiss declined to testify to the House Judiciary Committee, but affirmed in a letter that he had been “granted ultimate authority over the matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution.”

Nonetheless, Gov. DeSantis opined that “if Hunter were a Republican, he’d have been in jail years ago.” Speaker McCarthy shrugged off the multi-year probe conducted by a Trump-appointed prosecutor and made the GOP talking points comparison of the disposition of the Biden and Trump cases. Chairman Comer asserted that the plea deal came despite “growing evidence … that the Bidens engaged in a pattern of corruption, influence peddling, and possibly bribery.” Comer added that investigations of their “shady business dealings ... that risk our national security” will continue.

Thus far, it should be noted, Comer’s committee has found no evidence of corrupt behavior by President Biden, any involvement by Biden in his son’s business ventures or any new and credible information about Hunter Biden. Nor has Comer expressed any interest in investigating Trump family members who allegedly monetized their access to the former president.

Trump has left no doubt that if he returns to the White House he will weaponize the Department of Justice and every other branch of government. His former chief of staff John Kelly recalls that Trump “was always telling me we need to use the FBI and IRS to go after people.” White House Counsel Don McGahn deflected Trump’s requests to order the DOJ to prosecute Hillary Clinton and James Comey. And in late 2020, Trump wanted Acting Attorney General Jeffrey Rosen to send a letter to officials in swing states alleging election fraud, requesting they delay certification of the results and “leave the rest to me & the R. Congressmen.”

So no one should be surprised that this month, as House Republicans introduced a resolution to impeach President Biden and censured Rep. Adam Schiff (D-Calif.),Trump, who had earlier announced a ten-point plan to “dismantle the ‘Deep State,’” promised that if reelected, he would appoint a special prosecutor “to go after the most corrupt president in the history of the United States of America, and the entire Biden crime family.”

If they succeed in dismantling our democratic institutions and sidelining or silencing their critics, these weaponized autocrats will not make America great, good or better.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”

In recent years, the division has embarked upon an aggressive and novel series of criminal prosecutions in the labor market space, involving alleged agreements to restrict job opportunities. This effort has been profoundly unsuccessful. Since last year, the antitrust division has now gone to trial with four cases in this space and lost all four at trial.

In fact, the government has lost the charged antitrust conduct in every single case it has brought to trial in this area, notwithstanding the millions of dollars of effort and tens of thousands of hours devoted to these prosecutions. In each case, either the jury (if the case got that far) or the judge resoundingly rejected the government’s effort to treat the alleged antitrust conduct as criminal. 

To lose this many cases in a row without a victory is exceptionally rare. According to a 2019 Pew Research Center report, 80 percent of federal criminal defendants are ultimately convicted at trial.

How has the Department reacted to this unbroken string of trial defeats? Not well, if the words of Assistant Attorney General Jonathan Kanter, who runs the antitrust division, mean anything.  He recently told people in his office to “pump up Tom Petty’s ‘I won’t back down,’ turn it up, put it on repeat, dance like nobody’s watching, and sing out loud over and over and over again.  We are not backing down.” This reflects an unwillingness to take into account the uniform reactions of both juries and judges.

In contrast with this seemingly oblivious attitude, others within the division have suggested a more reasonable approach, stating that they intend to learn from the results to date, while continuing to pursue prosecutions in the labor market space. 

How did we get to this place where the DOJ is trying to criminalize this conduct for the first time in the nation’s history? Traditionally, crimes are defined by Congress. Congress passes a statute, and the courts define the outer boundaries of that conduct, laying out guidelines between what is criminal and what is not. 

No such process has ever occurred in this area of the law. The last time Congress spoke to the issue of the conduct covered by the antitrust laws was in the Sherman Act, enacted more than 130 years ago. But it was not until 2016 that the Department of Justice, in what it called its “Antitrust Guidance for Human Resource Professionals,” declared that attempts to affect the labor market through non-compete or non-solicitation agreements should be deemed criminal. 

No statute ever said that. No court ever said that. It was just an administrative decree by the Justice Department and the Federal Trade Commission.

And the Justice Department was not content merely to define this conduct as criminal. It went further, declaring that allegations of labor misconduct that touch on non-competes or non-solicitation agreements should be adjudicated under what is known as the "per se" standard, the most draconian standard that exists in criminal law. Under this standard, merely entering into a no-poach agreement with a competitor makes a person criminally liable, even if the agreement had no impact on the labor market whatsoever. 

In fact, when this standard is imposed, any evidence of surrounding circumstances or justifications — including harm, purpose, lack of a criminal mindset, or absence of any economic impact — is deemed legally irrelevant and inadmissible. And while there are very limited categories of conduct, such as price-fixing and bid-rigging, that courts have deemed eligible for this type of draconian rule, no court has ever said that this labor-related conduct is, in the words of the Supreme Court, “so manifestly anticompetitive and lacking any redeeming value” that this ultra-rigorous standard should be applied to standard business clauses such as non-competes and non-solicitation agreements.

The current antitrust enforcement tone is unlike anything we have ever seen. Rhetoric and references to Tom Petty — not to court decisions or congressionally-enacted statutes — are driving decisions to shift or ignore existing legal boundaries and to charge certain conduct in the labor markets as a crime. The Supreme Court, in U.S. v. Topco Associates, Inc., warned of the need for caution and deliberation when it stated that “it is only after considerable experience with certain business relationships that courts classify them as per se violations.”

So why does this matter?  Well, for the individuals who bear the brunt of this enforcement approach, it is unfair and brings with it enormous cost and fear. Going through a federal criminal trial, particularly one in which the government seeks to tie your hands about what kind of defense evidence you are even allowed to present to a jury, is a life-altering experience. And although every defendant and company that has run this trial gauntlet to date has prevailed, they are saddled with the life-long consequences of being charged with a federal crime, even if ultimately exonerated. For many individuals, the damage is done once charges are publicly filed — one can never unring that bell, even if found not guilty. 

The Justice Department cannot ignore this damning, unbroken string of trial losses. Reasonable minds and leaders must hit the pause button on treating alleged non-solicitation agreements as crimes under a standard that neither Congress nor any court has ever prescribed. They should recognize that their current approach is fundamentally flawed – the responses of each judge and jury to consider the labor market prosecutions demonstrate this – and reassess and change their approach. 

Instead of taking his guidance from Tom Petty, Kanter should take to heart the Supreme Court's admonition in Berger v. U.S.: that the prosecutor "may strike hard blows, [but] he is not at liberty to strike foul ones." 

Jeffrey E. Stone and Justin P. Murphy are partners at the international law firm McDermott Will & Emery. Both previously served as federal prosecutors for the U. S. Department of Justice. 

What would the Founding Fathers think if they read The United States of America v. Donald J. Trump — the 37-count felony indictment of the twice-impeached former one-term president? One imagines them shaking their powdered-wig heads in disbelief upon learning that the federal government they painfully birthed 247 years ago possessed overwhelming evidence charging the defendant — a former commander in chief — with putting “at risk the national security of the United States.”

Nonetheless, the defendant is on track to win the presidential nomination of a major political party, and his trial is on a collision course with the forthcoming presidential election.

Indeed, our Founders would be appalled and shocked that a twice-indicted former president was again running for president, as are the 59 percent of Americans who believe that “Trump ought to end his campaign now that he’s facing federal charges."

The level of discontent among Trump's strongest supporters will reach the next level if he is federally indicted again, this time for conspiring to obstruct congressional proceedings that resulted in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters, or indicted in Georgia for attempted 2020 election interference.

Hence, the national political forecast for the last half of 2023 and 2024 is dark and dismal, with increasing chances of tumult. However, this bleak assessment stems directly from the actions and inactions of two men who could have stopped Trump — Senate Minority Leader Mitch McConnell (R-Ky.) and Mark Meadows, Trump’s former White House chief of staff.

Suppose both men had acted differently at two pivotal points. In early 2021, McConnell — in the patriotic spirit of bipartisanship after a national crisis — could have led his caucus to achieve the two-thirds Senate vote needed to convict Trump at his impeachment trial. Then, with that same two-thirds Senate support, McConnell and Majority Leader Chuck Schumer (D-N.Y.) could have drawn up legislation to prohibit Trump from holding future public office.

For his part, Meadows could have leveraged his power as chief of staff to stop Trump from taking top-secret documents to Florida, sparing both Trump and the Justice Department from the recent spectacle of Trump's indictment.

Unfortunately, neither McConnell nor Meadows spoke truth to power. It would be more accurate to say that they acted as Trump’s enablers out of personal political expediency instead of in the national interest. Thus, our country continues to pay a heavy price for their failings, especially the Justice Department — trying to uphold the rule of law and show that no man, even a former president, is above the law.

Moreover, Americans would not be hearing the 2024 presidential primary leader, who is also the leader of the Republican Party, make egregious statements, such as Trump made on Saturday at the Faith and Freedom Coalition’s conference.

Railing to the crowd of Christian activists about any person or entity who opposes his actions — Republicans, Democrats, federal or state governments, the media, etc. — Trump pledged: “Together, we’re warriors in a righteous crusade to stop the arsonists, the atheists, globalists, and the Marxists — and that’s what they are — and we will restore our republic as one nation under God with liberty and justice for all.” 

Continuing, Trump warned that he is “being indicted for you,” calling each new indictment a “badge of honor.”

After hearing such remarks and facing the prospect of Trump topping the GOP ticket, one wonders if McConnell regrets voting to acquit Trump. Recall that, minutes after his Feb. 13, 2021 acquittal, McConnell justified his Senate vote and leadership actions with a very odd speech. One might have thought he favored conviction when he said, “A mob was assaulting the Capitol in [Trump’s] name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this.”

McConnell could have ended Trump’s political career on Feb. 13, 2021. But did he fear backlash from Trump loyalists, whom McConnell thought he needed for Republicans to win back the Senate in the 2022 midterm elections?

Ironically, the record shows that most Trump-supported Senate candidates actually blocked McConnell from becoming Senate majority leader again. Most likely, McConnell did not want to be held responsible for Trump’s conviction, but did he do his duty to his country that day?

At the other end of Pennsylvania Avenue was Trump’s fourth and last chief of staff, Mark Meadows. An important unanswered question about Meadows is whether he knew that Trump retained classified documents, and whether he could have stopped his boss from taking them to Florida.

This week, I spoke with John Kelly, who had served as Trump’s second chief of staff, from July 2017 to January 2019. I asked him if he thought Meadows might have prevented Trump’s actions that led to the recent 37-count federal indictment. The retired four-star Marine general said that Meadows “could have involved the rest of the Cabinet, bringing in the vice president, attorney general and CIA to talk to the president” about how removing such documents was “very destructive.”

Kelly added that “if Meadows turned a blind eye” and “if he knew it was happening, it is hard to believe [enabling] was not in play.”

When or if our nation emerges intact from current and future Trump indictments or a second Trump administration, history will judge whether Meadows and McConnell were Trump’s enablers.

Myra Adams served on the creative team of two Republican presidential campaigns.

And drug convictions only increase risk of death, while showing no evidence of deterring crime. An estimated 65 percent of incarcerated persons have a substance use disorder. And inmates in their first two weeks after release are 129 times more likely than the general population to die from drug overdose.

Ethnic minority populations, as well as indigenous, lesbian, gay, and transgender individuals, are disproportionately represented in jails and prisons. According to data from the federal National Institute of Justice, Black men are seven times as likely to be incarcerated as white men, and a study by the Pew Charitable Trust found that they stay in jail 12 days longer on average. These communities are already less likely to receive substance use disorder treatment.

Additionally, the incarcerated are more likely than the rest of the population to have chronic physical or behavioral health conditions. Jails have become a backstop for the mentally ill, and prisons a hospice for the sick and dying.

Ironically, we have had the equivalent of penicillin to treat this problem for nearly 60 years, but we have systematically denied it to this war’s casualties.

When Medicaid became available to low-income populations in 1965, it came with a caveat. After a long back-and-forth across party lines over who should be responsible for state and local jails' healthcare, Congress decided that Medicaid should exclude people who were incarcerated. This exclusion is called the inmate exception. In 1965, there were roughly 210,000 people incarcerated across the U.S. As of 2020, that number has increased almost ninefold.

Federal incentives in the 1980s and '90s to build jails, arrest for drug-related offenses, and impose mandatory minimum sentences fueled this situation. The local capacity to jail far exceeds the local provision of adequate healthcare. No standard of care exists for people who are incarcerated, and accreditation for jails and prisons varies widely. The reversal of Roe v. Wade may even threaten a related court precedent that gives states what little incentive they have for providing healthcare to prisoners.

This attack hasn’t gone without response. The Centers for Medicaid and Medicare Services recently offered guidance and support to states in applying for special permission to use federal funding for carceral healthcare spending. States can also use the funding to help connect people in jail to community services that support health-related social needs, improving health outcomes and reducing risk for recidivism.

Applying is a big lift for most states, even with guidance and support. Of the 15 states asking so far, only California has received special permission to use federal funding. States must make room in their budgets that they may not have and must account for the existing hodgepodge of carceral health spending sources.

Congress can take action to make the load a bit lighter.

The Reentry Act is co-sponsored by Republicans and Democrats alike. The bill allows for Medicaid coverage up to 30 days prior to release from incarceration. The bill would also lower the bar for states' individual success in applying for a waiver specific to their populations’ needs.

Not only would the legislation save the states money, it would save the feds money too. A 2014 study found, and likely underestimated, that 7.2 percent of inpatient hospitalization expenditures and 8.5 percent of emergency room expenditures came from justice-involved individuals, despite only accounting for 4 percent of the general population. The survey doesn’t account for hospitalizations and emergency department visits driven by the overdose crisis today.

When a chronic condition goes undertreated, or its treatment is interrupted, and people aren’t connected to a community provider because they are in jail, their condition gets worse and they have to go to the hospital. The federal government spent $174 billion on hospital expenditures last year. Thus, the establishment of connections between inmates and community providers before release could save federal government more than $7 billion over 10 years due to hospital spending — nearly twice the projected cost of the bill.

The federal government has shot itself in the foot with the inmate exclusion, hemorrhaging missed savings and driving a national health crisis. Congress must pass the Reentry Act to stop the bleeding.

David Seaman is a Master of Science candidate in Addiction Policy and Practice (ADPP) at Georgetown University, and serves as president and founder of Hoyas for Recovery.

"I'm not the deciding official."

Those five words, allegedly from Delaware U.S. Attorney David Weiss, shocked IRS and FBI investigators in a meeting on October 22, 2022. This is because, in refusing to appoint a special counsel, Attorney Garland Merrick Garland had repeatedly assured the public and Congress that Weiss had total authority over his investigation.

IRS supervisory agent Gary A. Shapley Jr. told Congress he was so dismayed by Weiss's statement and other admissions that he memorialized them in a communication to other team members.

Shapley and another whistleblower detail what they describe as a pattern of interference with their investigation of Hunter Biden, including the denial of searches, lines of questioning, and even attempted indictments. 

The only thing abundantly clear is that someone is lying. Either these whistleblowers are lying to Congress, or these Justice Department officials (including Garland) are lying. 

The response from both Hunter Biden's counsel and the attorney general himself only deepened the concerns.

Christopher Clark, an attorney for Hunter Biden, responded to a shocking Whatsapp message that the president's son had allegedly sent to a Chinese official with foreign intelligence contacts who was funneling millions to him.

"I am sitting here with my father," the younger Biden wrote, "and we would like to understand why the commitment made has not been fulfilled. Tell the director that I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang, or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret not following my direction. I am sitting here waiting for the call with my father."

President Biden has repeatedly told the public that he had no knowledge or involvement in his son's dealings. He maintained the denial despite audiotapes of him referring to business dealings, photos and meetings with his son's business associates, as well as an eyewitness account of an in-person meeting.

Clark did not deny that the above-quoted message had been sent. He only said that it was "illegal" to release the text (he did not explain why) and then added that "[a]ny verifiable words or actions of my client in the midst of a horrible addiction are solely his own and have no connection to anyone in his family."

Most of us expected a simple denial. Yet, after five years, Hunter has never even denied that the laptop was his. His team has continued with the same non-denial denials.

The transcript also details how investigators wanted to confirm the authenticity of the Whatsapp message through the company. The Justice Department reportedly shut down that effort.

If Hunter Biden was evasive, Garland was irate. He denounced the allegations as "an attack on an institution that is essential to American democracy, and essential to the safety of the American people."

The statement bordered on delusion. Polls show that a majority of the public now views the Justice Department as politically compromised and even engaged in election interference. The level of trust in the department under Garland is now lower than it was under his predecessor, Bill Barr. 

These questions are not an attack on the institution, but on what some are doing with it. Garland's reaction is akin to doctors responding to malpractice lawsuits as attacks on medicine itself.

As in the past, Garland continued to insist that the public must trust him and his department, because “You’ve all heard me say many times that we make our cases based on the facts and the law."  Once again, he reminded citizens that "these are not just words. These are what we live by." 

For those us who once supported Garland's nomination as Attorney General, it was another maddening moment. Garland has done little to change the view of his department or to address  the political bias that has plagued it and the FBI for years. That record has resulted in blistering reports from the Inspector General and most recently Special Counsel John Durham. 

Garland does have a motto. Yet, as these allegations pile up it is becoming more and more of a meaningless mantra.

The attorney general has a growing problem. For years, many of us have criticized him for his inexplicable refusal to appoint a Special Counsel on the Biden influence peddling scandal. Indeed, I have written over a dozen columns on why such an appointment seemed unavoidable, given the references to the president under various code names as a possible recipient of money and other benefits from foreign deals.

Even after a respected FBI source detailed allegations of a bribery scheme involving Ukrainian figures, Garland still refused to make the appointment. Such an appointment would not only expose Joe Biden to high-risk interviews, but would also allow the Special Counsel to issue a report on influence peddling by his family.

Garland was willing to appoint a Special Counsel to look into classified records found in Biden's various offices, yet he continues to bar an appointment on major corruption allegations implicating the president.

It was impossible to investigate these matters without tripping over the president and other family members. The whistleblowers detailed repeated occasions in which they were told to back off.

Even the narrow tax issues addressed in Hunter's recent plea bargain relate to those broader issues, given the source of these funds. Influence peddling may be lawful, but it is also corrupt. Indeed, it is the favorite form of corruption in Washington and a virtual family legacy of the Bidens. 

It is the concealment of the corruption that often results in crimes, from false statements to tax evasion to unlawful financial transactions to unlawful work as an unregistered foreign agent.

The whistleblowers allege that the Justice Department consistently cut them off in seeking searches or answers related to President Biden. However, the line that stood out the most was this: "U.S. Attorney Weiss stated that he subsequently asked for special counsel authority from Main DOJ at that time and was denied that authority."

If true, that means that Garland was not just hearing from experts and members of Congress calling for an appointment, but that Weiss himself also saw the need for such an appointment. Moreover, the report indicates that others in the investigation believed that there was a need to create such separation from the Justice Department in light of what they viewed as the special treatment given the president's son.

These accounts could explain why the Justice Department took five years to secure a guilty plea to two misdemeanors that could have been established in the first month of the investigation.

It would explain why there is no evidence of serious investigation into the influence peddling or a charge under FARA. It would explain why Hunter's lawyer cannot recall ever being asked about the laptop.

It would explain why the problem is not the Justice Department's motto, but the man who is tasked with fulfilling it.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University.