DOJ Could Sink Its Own Case Against Trump's Would-Be Assassin

Hey everyone, Ellie here, wishing you a happy Wednesday. This week, we're coming to you a couple days early because this week's piece has to do with something that happened really early in the week. And I think is very important, but is being overlooked at the moment. I'll leave you in suspense for now. But before we get there, here's something to watch for next week. On Wednesday, May 20th.

Some we don't know which ones, some of the Supreme Court justices are going to appear in the Senate, in the Appropriations Committee to testify about the US Supreme Court's appropriations request. Now that sounds dry. It probably should be dry, just line item budget issues. But I promise you it will not be dry. It'll be fascinating. This actually hasn't happened. No justice has testified in the US Senate since 2011.

So it's not an every year thing. It's a very rare occurrence. Now, who's gonna go? There's been speculation. We don't know even the number of justices. It obviously won't be all nine of them. I have a guess for you. I think it's going to be the Chief Justice. That part's easy. It's almost got to be him. He's in charge of administering the court. I'm sure he will be there.

But who does he bring with him? I think he's gonna bring one from each more or less side of the court, although that's a little bit oversimplified. But I think he's gonna bring one Republican nominee, one Democratic nominee, one person seen as a conservative generally, one person seen as a liberal.

generally. Here's my guess. Let's do a little process of elimination. He's not bringing Alito and he's not bringing Thomas because Chief Justice Roberts doesn't want the scenario where you allow Democratic US senators, some of whom are up for election, just going on rants to the face of Justice Thomas Orolito. I'm sure neither of them will have any desire to be there. I think there's no way I to be shocked.

if any of them are part of the team of justices. I think he's gonna bring Amy Coney Barrett, and I think he's gonna bring Elena Kagan. For similar reasons. They're both calm under pressure. They both have shown themselves to be unflappable and good spokespeople for the court.

And they're sort of less controversial than a Kavanaugh, let's say. I don't see them bringing Kavanaugh, although they might, but I don't think they'll want to take the risk of having to relitigate his whole confirmation battle. Um, Gorsuch is pretty prickly and I think somewhat extreme in some of his views. Not all of his views, but some of his views. I just think that Barrett and Kagan are the safest bets, they're the closest to the middle.

They're the least exposed and they can help him, meaning Chief Justice Roberts, go up there and get it over with. Now. The Supreme Court justices are not gonna say anything interesting. They are incredibly disciplined, frustratingly disciplined. They never really offer anything other than Pablum. It's like when you watch the confirmation hearings, or if you've ever read the Chief Justice's annual letter about the court, it's just non-committal.

and broad principle and we apply the law evenly and we follow precedent and w we follow doctrine and that kind of thing. It's not gonna be anything sensational from them. They're gonna be very guarded and very careful in what they say. But The dynamic of the U.S. senators questioning the Supreme Court, I think, is going to be really interesting. Now, look, it's not the House, so it's not quite.

the free-for-all that sometimes breaks out in the house. But it's not like the US Senate has become the Mecca of decorum lately either. So I'd look for some pointed questioning. And I think a lot of it, as often happens at these congressional hearings, is gonna be making political points and trying to generate clips and moments. and viral occurrences. So watch for the Democrats to unload some of the frustration that Democrats are feeling. And I think Republicans

Uh, I don't know what the Republicans are gonna do, actually. I mean, I guess they will voice displeasure with what they consider to be activist judges. I'm not actually suggesting that one side has a better case than the other. I actually think the notion that this court is just Six to three always in the bag for Trump is actually wrong. It's actually numerically wrong. And there's plenty of instances of that not happening. So I don't mean to suggest that.

Only the Democrats have legitimate gripes, but Democrats are the pissed off ones right now because they have been losing what they perceive to be what and are right, are the biggest cases. Most recently the redistricting case. Um, on the flip side, you know.

The Republicans have lost. They've lost the tariffs case. They've lost the National Guard case. They probably are about to lose the birthright case. So anyway, this will be interesting. I'm much more interested in what the senators say and how the justices react. than just hearing the justice's prepared remarks. Watch it, it'll be fascinating.

Okay, on with this week's piece. As always, listen, you've really been sending in the thoughts, questions, and comments. I do get them all. I do read them all. And I will do a mailbag if we get enough. Substantive questions. I love the comments. People just have nice things to say, mostly nice, almost entirely nice things to say about the podcast and cafe and all that. So by all means send that. But if you have a specific question, also send that. And then at some point, maybe we'll do

Uh, a couple of them as their own podcast. Okay. Letters atcafe.com. Here we go.

The evidence against would-be presidential assassin Cole Thomas Allen is overwhelming. Dozens of people saw him run through the Washington Hilton Hotel armed with a shotgun. Handgun and six knives towards the ballroom where President Donald Trump was about to address the White House Correspondence Association.

Prosecutors now allege that he fired a shot that hit and wounded a Secret Service officer. His mad dash is captured on surveillance video from every conceivable angle, and he was caught at the scene. He confessed in writing and with specificity in an email to friends and family. It's a case prosecutors cannot conceivably botch. But Acting Attorney General Todd Blanche and DC U.S. Attorney Jeannie Pierrot are trying their best to screw it up.

The problem is that both Blanche and Pierrot have stubbornly refused to recuse themselves from the case, notwithstanding their status as witnesses and intended victims. In the process, they've given Alan a sliver. Of a chance. At a hearing this week, US District Court Judge Trevor McFadden, a 2017 Trump appointee, twisted logic and common sense to suggest that Blanche and Piro might not be witnesses. Because Alan never made it into the ballroom and they didn't actually see anything.

But first of all, they did see something of relevance, the reaction of Secret Service and other security personnel inside the room, and they certainly heard gunshots outside the ballroom. A person doesn't necessarily have to see anything to qualify as a witness. Consider, for example, an apartment dweller who hears gunshots and screams through the wall of an adjacent apartment and calls the police. The Good Samaritan neighbor is certainly a witness, even without physically seeing anything.

Judge McFadden also voiced skepticism about Blanche and Pierrot's status as victims. Quote, I'd be very surprised if they were victims in any legal sense, end quote. We'll tell that to Genie Pierrot herself, who said to Fox News on May 2nd, quote, I was in the line of fire here. I could have been killed, end quote. And in his pre-attack email, Allen was explicit about his intentions. Quote, administration officials, not including Mr. Tash Patel, they are targets.

prioritized from highest ranking to lowest, end quote. Someday, by the way, we'll learn why this shooter exempted Cash Patel. Your guess is as good as mine at this point. As acting AG, Todd Blanche surely would make this hit list fairly high up. Pyrrhot would be lower, but still within the assassin's parameters. Neither was injured, of course, but they certainly qualify as intended victims, and that's plenty to necessitate recusal.

Indeed, it is a bedrock principle that any time a prosecutor is a potential witness or a victim in a given case, he must recuse himself to avoid a conflict of interest or the appearance of such. A federal statute requires the A.G. to ensure the recusal of any prosecutor who has a quote personal or political conflict of interest or the appearance thereof, end quote.

And DOJ's regulations mandate recusal where the prosecutor could be seen as quote, less than fully impartial or create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution. End quote. The potential conflicts of interest run deep here. A person who witnessed a crime might well have an emotional reaction to it, which would undermine the prosecutor's duty to handle every case dispassionately, without fear or favor.

That concern is even more pronounced when a prosecutor was an intended victim, as Patel said at a post-arrest press conference flanked by Blanche and Pierrot, quote, this one hits a little differently. We were all there, end quote. And of course, any witness could well end up testifying at trial, which would present an obvious mixed incentive if that same person is also involved in the prosecution of the same case.

Allen's defense team has now made a motion to recuse both Blanche and Pierrot. When asked last week if she would recuse herself, Pierrot replied, quote, Absolutely not. I mean, there is no way. I mean, that would be like telling witnesses that, you know, you can't testify at the trial because you were there. End quote. This, folks, is nonsense. Witnesses who were there certainly can testify, but they can't also try the case as prosecutors.

Even if Blanche and Pierrot aren't all that concerned with quaint notions of prosecutorial ethics, There's a tactical problem here for the Justice Department. A proper recusal poses zero downside to the prosecution, but a failure to recuse creates substantial, unnecessary risk. If Blanche Piero were to recuse themselves, the prosecution would carry on unimpeded.

Under DOJ policy, Pierot's U.S. Attorney's Office might need to be recused as a whole if the boss steps aside. Judge McFadden opined that recusal of the entire office, quote, would be quite a request, end quote. Perhaps, but quite a request doesn't mean it's wrong. The country is teeming with federal prosecutors who have deep expertise trying murders and other complex crimes, and this one isn't especially tricky given the quality and quantity of the evidence.

The Justice Department could simply import a team from the DC adjacent Eastern District of Virginia, which routinely prosecutes high stakes terrorism and national security matters. They can handle it, and any of Blanche's top deputies can take over the high level supervision. On the flip side, if Blanche and Pierrot refuse to recuse, and if the judge denies Allen's motion to force recusal,

then they'll endanger the entire prosecution. A failure to recuse will certainly give Allen, who has essentially no defense at this point, a legitimate argument on appeal that his prosecution was tainted by conflicts of interest. And while non-recusal wouldn't necessitate an automatic reversal of any guilty verdict, federal appeals courts have indeed thrown out convictions based on the improper failure of prosecutors to recuse themselves.

Ultimately, non-recusal by Blanche and Piro will compromise the Justice Department's fundamental ability to make its case and to make a conviction stick. Of course, the unspoken political downside to Blanche and Pierrot is that if they were to recuse, They could no longer be the public faces of the case against the aspiring assassin. And thus far, both have made a meal of their post-arrest media tours. Collectively, they've held multiple press conferences about the case.

posted about it aggressively on social media, and done interviews on CNN, Fox News, and NBC. And Blanche and Piro surely understand that Donald Trump, the same guy both are hoping will nominate them to permanent DOJ leadership positions, doesn't really comprehend or care much for the notion of ethics-driven recusals. Recall how former Attorney General Jeff Sessions recused himself from the 2017 Russia investigation and became Trump's full time punching bag as a result.

Trump tweeted, for example, that Sessions was, quote, scared stiff and missing in action. And later that, quote, I wish I did choose somebody else as AG. No way Todd Blanche or Genie Piro walks down that same road to perdition. Let's be real about what's happening here. Blanche and Pierrot are both experienced prosecutors who understand that they should recuse, but then they'd forego the opportunity to grandstand about the case.

And they'd risk pissing off the president who will decide whether to nominate them for big important jobs. Apparently they'd rather play the politics of personal glory, even if they risk blowing a case against the dangerous assassin who tried to kill the president whose favor they so deeply crave. Thanks for listening everyone, stay safe and stay informed.