Jimmy talks about what’s actually happening in Los Angeles right now for those who believe the city is some kind of totalitarian hellscape, protesters voicing their opposition to Trump’s disgusting and unnecessary abuse of power, Trump going around Governor Newsom to call in 4,000 troops from the National Guard and 700 active duty Marines, insisting that paid protesters are causing problems, creating a distraction from the fact that just a few days ago Elon Musk tweeted that Trump is in the Epstein files, and we take a look back at what past Presidents have said about immigration.
Transcript
[Jimmy Kimmel] i'm the host of the show thank you for watching thank you for coming please relax you know what You see here we have a uh we have a full house tonight as we always do here at our studio in Hollywood which might be surprising for those of you in other parts of the country who have been watching cable news and believe this city is some kind of totalitarian hellscape right now it most certainly is not in fact let's take a look outside cuz I want you to see what it's like in Hollywood right now you won't see this elsewhere on television not only is it not an apocalypse they're having a Disney Pixar movie premiere right now for Elio a movie about aliens don't tell Trump he'll send the Green Berets in too but I just want to say thank God for President Trump and the heroes at ICE for protecting us from these bloodthirsty fruit stand vendors spreading their dangerous pineapple chunks and mangoes with a squirt of lime all over the city we are so grateful for what you have done i'm very angry i have to say I cannot believe what's going on i knew it was going to be bad i did not know it was going to be this bad people who have lived here their whole lives people who've been in this city longer than I have the vast majority of whom have never done anything wrong are being abducted which is the correct word to use by agents in masks hiding their identities grabbing people off the street and at work uh sending people to detention centers and to protest that which is not only our right as Americans it's our responsibility losenos have been gathering to demonstrate and with very few exceptions peacefully demonstrate to voice their opposition to this disgusting and unnecessary abuse of power instigated by our mentally ill president who is dead set on exacerbating this who actually wants conflict who is intentionally inflaming and lying to make it seem like there's a war going on here he wants there to be a war going on here and he doesn't care who gets hurt in it there's a riot outside we have more so-called unrest here when one of our teams wins a championship but that's not what you're seeing on TV someone sets a fire in a garbage can 12 camera crews go running toward it trump wants it to seem like anarchy so he goes around our governor and he calls in 4,000 troops from the National Guard and 700 active duty Marines you know when we had the wildfires that devastated big chunks of our city he did absolutely nothing now that we're in the middle of a non-emergency send in the National Guard hey Mr president when is the last time you spoke with Governor Nelson [Music] A day ago called him up to tell him got to do a better job he's doing a bad job causing a lot of death and a lot of a lot of potential death if we didn't send out the National Guard and last time we gave him a little additional help uh you would have Los Angeles would be burning right now no no when it will be calm and sunny and 70° just like it is right now what a hero you know he's always saving our city from burning last time we were burning back in January you remember he had them turn on that great big faucet that put all the fires out they met with a very heavy force and if they weren't you would have that city right now would be on fire it would be burning down the rest of it what's left over because the other fire was started because they wouldn't allow water into LA they wouldn't allow water into California because they had it all shifted out to the Pacific Ocean and I turned it around still with it does anyone believe this I I He might be starting to convince himself that did not happen he so desperately wants to be the hero putting out fires he's starting putting out a fire you purposely start doesn't make you a firefighter it makes you an arsonist with a hose okay It's so nuts i mean the president of the United States has been tougher on LA than on Russia remember that twoe deadline he gave Putin to sit down for peace talks with Ukraine As of tomorrow it's 2 weeks but by all means send the Marines to the Grove this is an unstable person i mean listen to this guy they say we're a forest nation we live in a forest and they don't have forest fires and in one case he said "You know our trees are much more flammable than California but we don't have forest fires because we clean the floor we sweep the floor of leaves california is a disaster what they've done in California they don't do anything and if you did you wouldn't you almost would not have forest fires and you could say you in theory you shouldn't have any forest fires and we spend billions and billions of dollars a year because uh people don't clean the forests and we're going to clean the forests we're going to start cleaning them." Yeah yeah that's right any day now he's going to send in a squadron of Roombas to clean it up to clean he's cleaning the forest the guy can't even keep the clumps of hair out of his shower drain and now he's cleaning the forest and to be fair some of the protesters broke the law they're throwing water bottles three Whimos these driverless cars got set on fire which is ironic because the MAGA crowd thinks immigrants are here to steal our jobs but if you're a driver for Uber or Lift you know the real threat is Whimo you know Trump lies about everything a lot of stuff but it's especially maddening when he's lying about a situation you are physically in i mean everyone in this room right now knows none of these doomsday scenarios the president and his minions keep imagining allowed is even or it's not remotely true there are no mobs there are no there's no violent insurrection there are Americans who are upset marching to protect their neighbors no matter what this sick person says these are paid insurrectionists or agitators or troublemakers you can call it whatever you want but these are paid insurrectionists and these are paid insurrectionists these are paid troublemakers these are paid troublemakers but these are paid people in many cases they get money they're paid you see in that little mind that sticky little brain covered with Aquanet it would have to be paid because why would anyone ever do anything without being paid right Melania I mean that's how he thinks look there are always going to be when you're out on the street there are always going to be nuts who set fires and throw rocks at the police and the military and they should never ever do that and there are also going to be bad members of law enforcement who think it's okay to shoot rubber bullets at journalists it's human nature we're human beings but none of them should be in this position in the first place donald Trump created this problem he's putting the police and the military in danger he's the one deporting children and their parents without any process he's the one who has ICE agents outside immigration offices arresting the people who showed up to do the right thing and check in with the immigration office this is not a problem we had this is a problem he made and is intentionally doing everything he can to make it worse he is purposefully pitting Americans against each other to create protest porn for Fox News because that's what excites them he knows that the good people are going to stand up for their neighbors and he's exploiting that and to those of you in the National Guard who've been thrust into this when Donald Trump orders you to do something that you know is immoral try to get your dad's podiatrist to write a note to say you have bone spurs that resonates with him he has tender feet he'll let you stay home the people he's terrorizing the vast vast majority of them have done nothing wrong ever they came here to work to give their families a better life like almost all of our families did and they're treating him like they like they're a bunch of hyenas that got loose from the zoo but here's the thing we have to be smart he wants us to burn this city down he wants that he smiles when he sees that that's why we have to do everything in our power to protest peacefully and to respect the policemen and the women and the military many of whom probably agree with the people they're now squared off against cuz he's trying to make us look like a bunch of savages but here's the thing uh Mr president no matter what you do no matter how much chaos you try to create to distract us it's not going it's never going to be enough to make us forget that your buddy Elon wrote this about you last week and we want to we do want to see that list he has been very successful bumping that out of the news last week it was all anyone was talking about elon versus Trump even the right-wing media was talking about it non-stop and taking it very hard look you ever watch two parents fight That's kind of what I feel like I'm in the middle of right now i hate it when dad and dad fight i would prefer that mom and dad would just stop fighting i don't want to see my parents fighting they're still together this is just a fight it's a spat you know i think it's fake they'll work it out eventually i'm hoping it's like a Ross and Rachel thing that it's just a break do we have to pick and choose which which dad we want to live with Yeah no I I want to live with both of them wait I thought you guys were against children having two dads i'm confused everyone was talking about Trump on the Epstein list and fighting with Elon so what did he do He manufactured a crisis he he got back to what got him here in the first place good old xenophobia i I don't know what happened to the state's rights he thinks so much of when it suits him but I know I speak for a lot of us here when I say leave us alone here we don't need you we don't need your help we didn't ask for your help we don't want your help i thought the idea was to make America great this is not great try to act like a president for once and in case in case you don't know what that looks like maybe this will help cuz it looks like this we are one and all immigrants or the sons and daughters we are the descendants of 40 million people who left other countries to make a new opportunity for themselves and their children the lamp of this grand old lady is brighter today and the golden door that she guards gleams more brilliantly in the light of an increased liberty for the people from all countries i'm convinced that the vast majority of Americans today want these people to have another opportunity i was in a party that welcomed generations of immigrants if we ever closed the door to new Americans our leadership in the world would soon be lost immigration is not just a link to America's past it's also a bridge to America's future this is one country we like our diversity we are proud of it amid all the complications of policy may we never forget that immigration is a blessing and a strength these people our neighbors our classmates our friends they did not come here in search of a free ride or an easy life they came to work we don't demonize immigrants we don't single them out for attacks we don't believe they're poisoning the blood of the country we're a nation of immigrants and that's why we're so damn strong they're eating the dogs the people that came in they're eating the cats they're eating They're eating the pets [Applause] yeah that's right
EXCLUSIVE: Governor Newsom ADDRESSES State and Nation LIVE MeidasTouch Streamed live 19 hours ago
California Governor Gavin Newsom addresses California and the Nation about urgent matters involving Donald Trump’s recent orders.
Transcript
[Gov. Newsom] I want to say a few words about the events of the last few days this past weekend federal agents conducted large-scale workplace raids in and around Los Angeles those raids continue as I speak california is no stranger to immigration enforcement but instead of focusing on undocumented immigrants with serious criminal records and people with final deportation orders a strategy both parties have long supported this administration is pushing mass deportations indiscriminately targeting hardworking immigrant families regardless of their roots or risk what's happening right now is very different than anything we've seen before on Saturday morning when federal agents jumped out of an unmarked van near a Home Depot parking lot they began grabbing people a deliberate targeting of a heavily Latino suburb a similar scene played out when a clothing company was raided downtown in other actions a US citizen 9 months pregnant was arrested a four-year-old girl taken families separated friends quite literally disappearing in response everyday Angelinos came out to exercise their constitutional right to free speech and assembly to protest their government's actions in turn the state of California and the city and county of Los Angeles sent our police officers to help keep the peace and with some exceptions they were successful like many states California is no stranger to this sort of unrest we manage it regularly and with our own law enforcement but this again was different what then ensued was a use of tear gas flashbang grenades rubber bullets federal agents detaining people and undermining their due process rights donald Trump without consulting California law enforcement leaders commandeered 2,000 of our state's National Guard members to deploy on our streets illegally and for no reason this brazen abuse of power by a sitting president inflamed a combustible situation putting our people our officers and even our National Guard at risk that's when the downward spiral began he doubled down on his dangerous National Guard deployment by fanning the flames even harder and the president he did it on purpose as the news spread throughout LA anxiety for family and friends ramped up protests started again by night several dozen lawb breakakers became violent and destructive they vandalized property they tried to assault police officers many of you have seen the video clips of cars burning on cable news if you incite violence I want to be clear about this if you incite violence or destroy our communities you're going to be held to account that kind of criminal behavior will not be tolerated full stop already more than 220 people have been arrested and we're reviewing tapes to build additional cases and people will be prosecuted to the fullest extent of the law again thanks to our law enforcement officers and the majority of Angelinos who protested peacefully the situation was winding down and was concentrated in just a few square blocks downtown but that that's not what Donald Trump wanted he again chose escalation he chose more force he chose theatrics over public safety he federalized another 2,000 guard members he deployed more than 700 active US Marines these are the men and women trained for foreign combat not domestic law enforcement we honor their service we honor their bravery but we do not want our streets militarized by our own armed forces not in LA not in California not anywhere we're seeing unmarked cars unmarked cars in school parking lots kids afraid of attending their own graduation trump is pulling a military drag net all across Los Angeles well beyond his stated intent to just go after violent and serious criminals his agents are arresting dishwashers gardeners day laborers and seamstresses that's just weakness weakness masquerading as strength donald Trump's government isn't protecting our communities they're traumatizing our communities and that seems to be the entire point california will keep fighting we'll keep fighting on behalf of our people all of our people including in the courts just yesterday we filed a legal challenge to Donald Trump's reckless deployment of American troops to a major American city today we sought an emergency court order to stop the use of the American military to engage in law enforcement activities across Los Angeles if some of us could be snatched off the streets without a warrant based only on suspicion or skin color then none of us are safe authoritarian regimes begin by targeting people who are least able to defend themselves but they do not stop there trump and his loyalists they thrive on division because it allows them to take more power and exert even more control and by the way Trump he's not opposed to lawlessness and violence as long as it serves him what more evidence do we need than January 6th i ask everyone take time reflect on this perilous moment a president who wants to be bound by no law or constitution perpetuating a unified assault on American traditions this is a president who in just over 140 days has fired government watchd dogs that could hold him accountable accountable for corruption and fraud he's declared a war a war on culture on history on science on knowledge itself databases quite literally are vanishing he's delegitimizing news organizations and he's assaulting the First Amendment and the threat of defunding them at threat he's dictating what universities themselves can teach he's targeting law firms and the judicial branch that are the foundations of an orderly and civil society he's calling for a sitting governor to be arrested for no other reason than to in his own words for getting elected and we all know this Saturday he's ordering our American heroes the United States military and forcing them to put on a vulgar display to celebrate his birthday just as other failed dictators have done in the past look this this isn't just about protests here in Los Angeles when Donald Trump sought blanket authority to commander the National Guard he made that order apply to every state in this nation this is about all of us this is about you california may be first but it clearly will not end here other states are next democracy is next democracy is under assault before our eyes this moment we have feared has arrived he's taking a wrecking ball a wrecking ball to our founding father's historic project three co-equal branches of independent government there are no longer any checks and balances congress is nowhere to be found speaker Johnson has completely abdicated that responsibility the rule of law has increasingly been given way to the rule of dawn the founding fathers they didn't live and die to see this kind of moment it's time for all of us to stand up justice Brandeise you said it best in a democracy the most important office with all due respect Mr president is not the presidency and it's certainly not governor the most important office is office of citizen at this moment at this moment we all need to stand up and be held to account a higher level of accountability if you exercise your first amendment rights please please do it peacefully i know many of you are are feeling deep anxiety stress and fear but I want you to know that you are the antidote to that fear and that anxiety what Donald Trump wants most is your feelalty your silence to be complicit in this moment do not give into him
The Florida Bar Attn: ACAP 651 E. Jefferson Street Tallahassee, FL 32399-2300 [email protected]
Re: Ethics Complaint Against Pamela Jo Bondi1
The undersigned attorneys, law professors and former judges file this complaint seeking an investigation and appropriate sanctions against Pamela Jo Bondi, a member of The Florida Bar, who has engaged in serious professional misconduct that threatens the rule of law and the administration of justice.2
We file this complaint recognizing that Ms. Bondi currently serves as the Attorney General of the United States, the highest-ranking lawyer in the United States government. Indeed, we bring Ms. Bondi’s misconduct to your attention precisely because Ms. Bondi holds this exalted position, with the attendant responsibilities for subordinate lawyers under her authority who carry out her directives, and because the complaint highlights for the entire legal profession the importance of ethical rules to our independent, self-regulating profession.
Likewise, we file this complaint notwithstanding The Florida Bar’s recent reply to two previous ethics complaints filed against Ms. Bondi that it “does not investigate or prosecute sitting officers appointed under the U.S. Constitution while they are in office.”3 The purported rationale for declining to investigate or prosecute is that such action “could encroach on the authority of the federal government concerning these officials and the exercise of their duties.”4 The Florida Bar’s dismissal is unsupported by history or precedent. As the Supreme Court has held:
Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.5
Accordingly, this policy of The Florida Bar is an abdication of its jurisdiction and its responsibility to regulate the legal profession. Indeed, this policy means that the Bar will exercise no authority over the behavior of lawyers licensed in Florida who happen to be appointed as an officer of the United States.6 In other words, any such lawyers, including the Attorney General, are professionally unaccountable.
The Rules not only require that lawyers who are public officials are accountable for their ethical conduct, but they specifically declare that lawyers who are public officials have a higher duty than other lawyers to maintain ethical standards: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney.”7 Nowhere in the Rules or Comments is there an exemption for lawyers who are federal public officials. Moreover, the McDade Amendment, 28 U.S.C § 530B, plainly makes Department of Justice lawyers subject to state bar rules.8 Therefore, we ask The Florida Bar to do its duty and investigate the serious professional misconduct discussed herein.
Summary of the Complaint
The gravamen of this complaint is that Ms. Bondi, personally and through her senior management, has sought to compel Department of Justice lawyers to violate their ethical obligations under the guise of “zealous advocacy” as announced in her memorandum to all Department employees, issued on her first day in office, threatening employees with discipline and possible termination for falling short.9 She has exerted this pressure even though the Rules of Professional Conduct limit the “zeal” of attorneys to “lawful and ethical measures.”10 Such conduct violates Florida Rule of Professional Conduct 4-8.4(a), which makes it misconduct for a lawyer to “knowingly assist or induce another … to violate the Rules of Professional Conduct”; Rule 4-5.1, which imposes ethical duties on Ms. Bondi to take reasonable measures with respect to her managerial duties as Attorney General and her supervisory duties over subordinate lawyers to ensure that lawyers in the Department comply with their ethical duties; and Rule 4-8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.
In this complaint, we highlight three glaring examples of Department lawyers being terminated or forced to resign as a result of demands that they act unethically issued by Ms. Bondi or a member of her senior management, including Emil Bove, initially the Acting Deputy Attorney General (the No. 2 position in the Department) and now the Principal Associate Deputy Attorney General (the No. 3 position); Todd Blanche, the current Deputy Attorney General; and Edward Martin, then Interim U.S. Attorney for the District of Columbia and now chief of the Justice Department’s “Weaponization Working Group” and the Department’s pardon attorney.
In the simplest and most alarming example, Ms. Bondi and her deputy, Mr. Blanche, fired an experienced and accomplished attorney, Erez Reuveni, for telling the truth before a tribunal in the case involving Kilmar Garcia,11 who was deported to El Salvador due to an administrative error, and contrary to a court order that he not be deported to that country. The second example is the forced resignation of Denise Cheung, who had served in the Department for nearly a quarter century, when she declined to open a criminal investigation because there was insufficient predication. And the third example of this pattern of conduct occurred when the Department proposed to dismiss the criminal indictment of Mayor Eric Adams of New York without prejudice in exchange for Mr. Adams’ assistance on immigration enforcement. Because the dismissal was based on an improper quid pro quo, the Acting U.S. Attorney for the Southern District of New York and almost a dozen other lawyers in that office and the Department’s Public Integrity Section objected to the proposed dismissal. As a result, they were forced to resign immediately or placed on administrative leave and later resigned rather than express regret for the prosecution.
Through her “zealous advocacy” memorandum and its application in these three cases, Ms. Bondi has sent a message to all Justice Department lawyers that they must disregard the applicable Rules of Professional Conduct, fundamental ethical principles, and longstanding norms of the Department in order to zealously pursue the President’s political objectives—and, if they fail to do so, they will be disciplined or fired. However, as Ms. Bondi and her senior staff are fond of saying, no one is above the law,12 and this includes Ms. Bondi.
This complaint will first describe Ms. Bondi’s and her senior managers’ conduct in connection with these examples. It then identifies the ethical provisions she likely has violated and explains how her actions endanger the rule of law and the administration of justice.13
I. Factual Statement
A. Ms. Bondi’s “Zealous Advocacy” Memorandum
On her first day as Attorney General (February 5, 2025), Ms. Bondi issued a memorandum to all Justice Department employees entitled General Policy Regarding Zealous Advocacy on Behalf of the United States.14 It states in part
It is the job of an attorney privileged to serve in the Department of Justice to zealously defend the interests of the United States. Those interests, and the overall policy of the United States, are set by the Nation's Chief Executive, who is vested by the Constitution with all "[E]xecutive Power." More broadly, attorneys are expected to zealously advance, protect, and defend their client’s interests. Department of Justice attorneys have signed up for a job that requires zealously advocating for the United States.
The responsibilities of Department of Justice attorneys include not only aggressively enforcing criminal and civil laws enacted by Congress, but also vigorously defending presidential policies and actions against legal challenges on behalf of the United States. The discretion afforded Department attorneys entrusted with these responsibilities does not include latitude to substitute personal political views or judgments for those that prevailed in the election.
When Department of Justice attorneys, for example, refuse to advance goodfaith arguments by declining to appear in court or sign briefs, it undermines the constitutional order and deprives the President of the benefit of his lawyers. It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department's mission will be subject to discipline and potentially termination, consistent with applicable law.15
As subsequent events demonstrate, the zealousness intended by Ms. Bondi’s memorandum entails the routine violation of ethical strictures applicable to Department lawyers and has resulted in these lawyers being fired for complying with those limits or forced to resign rather than violate their ethical obligations.
B. Kilmar Garcia Litigation
Kilmar Armando Abrego Garcia is an El Salvadoran citizen. He entered the United States around 2011.16 In 2019, Immigration and Customs Enforcement (ICE) instituted removal proceedings against him. In response, Garcia sought a “withholding of removal” order preventing the United States from removing him to El Salvador. That order was issued in October 2019 after the immigration judge agreed it was more likely than not that Garcia would be persecuted by gangs if he were forced to return to his home country. The government did not appeal that order, so it became effective.
In March of this year, Mr. Garcia was detained by ICE and, without notice or legal process, flown to El Salvador and placed in the notorious “Terrorism Confinement Center” (CECOT).17 On March 24, his family filed suit in federal district court in Maryland against several federal defendants, including the Secretary of Homeland Security and Ms. Bondi. They also sought an emergency temporary restraining order asking the court to order the defendants to request the government of El Salvador to return Mr. Garcia.
The government filed its response on March 31, arguing principally that the district court lacked jurisdiction for several reasons, and that it was not likely that El Salvador would respond positively to a request from the United States.18 Critically, the response conceded that, “[o]n March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error.”19
At the April 4 hearing on the TRO motion, the government was represented by Erez Reuveni, the Acting Deputy Director of DOJ’s Office of Immigration Litigation and one of the DOJ lawyers who signed the March 31 response. As such, Mr. Reuveni had no option but to say at the outset, consistent with the Department’s March 31 response, “we concede the facts. This person should—the plaintiff, Abrego Garcia, should not have been removed.”20 In an exchange with the court, he explained why: there was a withholding of removal order, now final, that forbade the government from returning Mr. Garcia to El Salvador. As a result, he acknowledged, “[t]here’s no dispute that the order could not be used to send Mr. Abrego Garcia to El Salvador.”21 When the court pressed him on what document the government had relied upon to initiate Mr. Garcia’s removal in 2025, Mr. Reuveni again had no option but to concede “[t]hat is not in the record, and the government has not put that into the record. And that’s the best I can do.”22
Similarly, Mr. Reuveni had to concede that the withholding of the removal order meant that, as a matter of law, Mr. Garcia could not be removed to El Salvador,23 and that there was “no case directly on point to Your Honor’s question.”24 The court thanked Mr. Reuveni, no less than three separate times, for his “candor.”25 Mr. Reuveni did point out where there was a “dispute” between the parties,26 and he argued at some length why the government believed the court had no jurisdiction in the case.27
And yet, the very next day, Deputy Attorney General Todd Blanche placed Mr. Reuveni on administrative leave for failing to “follow a directive from your supervisors,” “engaging in conduct prejudicial to your client” and not “zealously advocat[ing] on behalf of the United States.”28 And the next day, Ms. Bondi appeared on “Fox News Sunday” and made it clear that Mr. Reuveni’s suspension was a direct consequence of her February 5 “zealous advocacy” memorandum:
He was put on administrative leave by Todd Blanche on Saturday. And I firmly said on Day 1, I issued a memo that you are to vigorously advocate on behalf of the United States. Our client in this matter was Homeland Security—is Homeland Security. He did not argue. He shouldn’t have taken the case. He shouldn’t have argued it, if that’s what he was going to do. He’s on administrative leave now. . . . You have to vigorously argue on behalf of your client.29
The Fox host, Shannon Bream, twice pointed out that “the government ha[d] admitted there was an error in deporting him.”30 Neither time did Ms. Bondi dispute that assertion; nor did she explain how Mr. Reuveni could have done so. Rather, she simply said that Mr. Reuveni’s conduct “would be a defense attorney walking in conceding something in a criminal matter. That would never happen in this country.” 31
Ten days later, Mr. Reuveni was fired by Mr. Bove at Ms. Bondi’s direction.32 Mr. Blanche also suspended Mr. Reuveni’s immediate supervisor, August Flentje, for failure to supervise Mr. Reuveni.33
C. EPA Clean Energy Contract Investigation
Denise Cheung served for over 24 years in the Department of Justice and the U.S. Attorney’s Office in the District of Columbia.34 She was most recently the Chief of the Criminal Division of that office. On February 17, 2025, the Department’s Office of the Deputy Attorney General (ODAG) (then headed by Mr. Bove in an acting capacity) instructed Ms. Cheung to open a criminal investigation into whether EPA had unlawfully awarded a clean energy project contract, and to issue grand jury subpoenas pursuant to the investigation. She was instructed to take that action by close of business that evening to prevent contract awardees from drawing down contract funds held by Citibank.
Ms. Cheung conferred with colleagues with substantial white collar criminal prosecution experience, reviewed documentation provided by ODAG, and concluded that the documents on their face did not provide the predicate for opening a criminal investigation. After much internal debate, ODAG said a “freeze letter” requesting that the bank freeze the funds would be adequate. Ms. Cheung contacted the FBI’s Washington Field Office to start that process. Ms. Cheung also viewed a Project Veritas video that ODAG claimed provided probable cause.
Ms. Cheung sent a draft freeze letter to the Principal Deputy U.S. Attorney for the District of Columbia (PAUSA). The PAUSA proposed inclusion of language stating that the government had probable cause to believe that contract funds held by the bank were subject to seizure and forfeiture. Ms. Cheung said the language was not appropriate, based on evidence she had reviewed. Ms. Cheung provided the FBI with alternative language that said “there may be conduct that constitutes potential violations of [the federal criminal code] that merits additional investigation.” The FBI issued the letter to Citibank at 7:28 pm.
The PAUSA and Interim U.S. Attorney Martin called Ms. Cheung shortly afterward, objecting to the language of the freeze letter and directing Ms. Cheung to immediately send a second letter to the bank, signed by herself and Mr. Martin, announcing the commencement of a criminal investigation and ordering the bank not to disburse any funds. Ms. Cheung responded that she continued to believe there was insufficient evidence to issue such a letter, including insufficient evidence to tell the bank there was probable cause to seize the accounts that had been identified. Because Ms. Cheung believed she did not have legal authority to send the letter, she told Mr. Martin she would not send it. Mr. Martin then asked for her resignation, which she submitted the following day.
Mr. Martin then personally submitted an application for a seizure warrant, not signed by any other prosecutors in his office.35 A U.S. magistrate judge rejected it on the grounds that the application (which included an affidavit from an FBI agent) failed to establish a reasonable belief that a crime had occurred. Mr. Bove then approached at least one other U.S. attorney’s office in the southeastern United States about launching a grand jury investigation of the same contract and seeking a court-ordered bank freeze, but prosecutors in that office also refused to do so.
D. Dismissal of Eric Adams Prosecution36
In September 2024, the Department indicted Eric Adams, the Mayor of New York City, on five counts arising from his alleged solicitation of illegal campaign contributions from foreign nationals. Shortly after the election, Mr. Adams and his defense team initiated contact with Trump staff and ultimately met with the President-Elect himself. On January 31, 2025, Mayor Adams’ counsel met with then-Acting Deputy Attorney General Bove and the prosecutors working on the case, led by Danielle Sassoon, the Acting U.S. Attorney for the Southern District of New York. At that meeting, as documented by Ms. Sassoon, the Mayor’s counsel indicated that he could be helpful to the Administration’s immigration enforcement priorities if he was no longer facing prosecution. Also, as reported by Ms. Sassoon in her resignation letter, Mr. Bove “admonished a member of my team who took notes during that meeting and directed the collection of those notes at the meeting’s conclusion.”37
On February 10, Mr. Bove sent a memorandum to Ms. Sassoon, stating that he was acting pursuant to the authorization of the Attorney General. The memorandum instructed her to dismiss the indictment after obtaining Mr. Adams’ consent to dismissal of the indictment without prejudice to it being refiled. Mr. Bove’s memorandum provided two grounds for dismissal: (1) doing so would enable Mr. Adams to assist in immigration enforcement; and (2) Damian Williams, Ms. Sassoon’s predecessor, improperly “weaponized” the prosecution. Mr. Bove’s memorandum also stated that the decision to dismiss had been reached without consideration of the merits of the prosecution.
Ms. Sassoon wrote Ms. Bondi on February 12 to request a meeting and express her grave misgivings about this memorandum. She expressed concern that the agreement with Mayor Adams to consent to dismissal had been “negotiated without my office’s awareness or participation.” She explained that offering to drop a prosecution in exchange for a promise of assistance violated the Department of Justice Manual and the Rules of Professional Conduct, and would constitute prosecutorial misconduct. She also explained that Mr. Williams had very little involvement in the investigation, that the decision to indict originated with career staff, and that Mr. Williams’ public statements were typical for a U.S. Attorney. “Moreover,” she added, “dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams’s cooperation with enforcing the immigration laws proves unsatisfactory to the Department.”
Ms. Sassoon said “I am mindful of your recent order reiterating prosecutors’ duty to make good-faith arguments in support of the Executive Branch’s positions. See Feb. 5, 2025 Mem. ‘General Policy Regarding Zealous Advocacy on Behalf of the United States.’ But because I do not see any good-faith basis for the proposed position, I cannot make such arguments consistent with my duty of candor.” She offered to resign if Ms. Bondi chose not to meet with her or to reevaluate the dismissal directive.
Mr. Bove responded on February 13, “accepting” Ms. Sassoon’s resignation and placing the two lead prosecutors on administrative leave, pending an investigation of all three attorneys’ “insubordination” by the Office of Attorney General and the Department’s Office of Professional Responsibility.38 The letter quoted from the “zealous advocacy” memorandum and added: “Your Office was not exempted from . . . the Attorney General’s memorandum.” That same day, Mr. Bove transferred the Adams prosecution from the office of the U.S. Attorney for the Southern District of New York to the Department’s Public Integrity Section. The two leaders of the Public Integrity Section and three other lawyers there promptly resigned rather than participate in dismissing the case.
Ms. Sassoon resigned on February 14, along with one of the two lead prosecutors.39 Also that day, Mr. Bove held a conference call with the remaining lawyers in the Public Integrity Section, stating that two of them would need to sign the dismissal motion—or it was strongly implied, they would all be fired. He gave them one hour to decide. A senior Section lawyer offered to sign the motion “to protect the other lawyers,” and it was ultimately filed that day with the additional signatures of Mr. Bove himself and the then head of the Department’s Criminal Division.
On April 22, three of the prosecutors who had been placed on administrative leave resigned. They explained that Mr. Blanche, newly appointed as the Deputy Attorney General, had conditioned their return to service on expressing regret and admitting misconduct in connection with refusing to dismiss the Adams case. They resigned rather than “abdicate our legal and ethical obligations in favor of directions from Washington.”40
On April 2, Judge Dale Ho reluctantly dismissed the indictment, although he did so with prejudice, declaring that “everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.”41 Judge Ho also rejected the Department’s claims of misconduct by Southern District prosecutors: “There is no evidence—zero—that they had any improper motives.”42
II. Ethical Rules Violated
A. Applicable Rules of Professional Conduct
1. Ms. Bondi
The McDade Amendment makes plain that an attorney for the federal government is bound by State laws, ethical rules and federal court rules in the State “where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”43
Ms. Bondi is a member of The Florida Bar. Under Rule 4-8.5 of the Florida Rules of Professional Conduct, she “is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.” The Comment to this Rule adds:
In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute the practice of law in that jurisdiction. See rule 4-5.5.
If the Rules of Professional Conduct in the 2 jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than 1 jurisdiction.
Although Ms. Bondi heads a federal agency headquartered in the District of Columbia, she is not a member of the D.C. Bar and therefore is not subject to the disciplinary authority of the D.C. Bar under the current rules issued by the D.C. Court of Appeals.44 Under the choice of law rules issued by the Department of Justice to implement the McDade Amendment, however, Ms. Bondi is subject to Florida’s ethical rules.45 The Florida Bar therefore has disciplinary authority over this bar complaint and its Rules of Professional Conduct apply to Ms. Bondi’s conduct that is the subject of this complaint.
2. Department Lawyers
Under the Department’s choice of law rules, the Department lawyers that Ms. Bondi and her senior management team supervise (i) when involved with a particular case, are subject to the “rules of ethical conduct of the court before which a case is pending”; and as noted above (ii) where no case is pending, are subject to the ethical rules of the attorney’s state of licensure unless choice of law principles direct the attorney to comply with the ethical rules of another jurisdiction or court.46 Accordingly, Mr. Reuveni is subject to the Maryland Rules of Professional Conduct since the Garcia case is pending in federal district court in Maryland; Ms. Cheung, as a member of the D.C. Bar, is subject to the D.C. Rules of Professional Conduct; and Ms. Sassoon is subject to the New York Rules of Professional Conduct since the Adams case was pending in New York and she is a member of the New York State Bar.
B. Supervisory Misconduct (Rules 4-8.4(a) and 4-5.1)
Ms. Bondi’s principal ethical violation arises from her perversion of the concept of “zealous advocacy” into an overriding campaign, individually and through Messrs. Blanche, Bove and Martin, to coerce and intimidate the lawyers they supervise into violating their ethical obligations. In each of the examples discussed above, Ms. Bondi and her senior “team”47 ordered Department lawyers to do things those lawyers were ethically forbidden from doing, under threat of suspension or termination—or fired them for not having done so.
To recap:
Erez Reuveni. Mr. Blanche first suspended, and then fired, Erez Reuveni for telling the truth in a federal district court located in Maryland about why Kilmar Garcia was deported to El Salvador. Ms. Bondi endorsed this action in a television broadcast. But Mr. Reuveni was required to make these concessions by the duty of candor to the tribunal imposed on him by Maryland Rule 19-303.3(a)(1) & (4), which provide in relevant part: “An attorney shall not knowingly . . . make a false statement of fact or law to a tribunal . . . or offer evidence that the lawyer knows to be false.”48 As noted above, the court thanked Mr. Reuveni, no less than three separate times, for his “candor.”49
In subsequent appellate proceedings, two judges on a panel of the Fourth Circuit Court of Appeals took special note of the treatment of Mr. Reuveni:
Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” . . . But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”).50
Denise Cheung. Mr. Bove and Mr. Martin sought to get Ms. Cheung, an Assistant U.S. Attorney in the District of Columbia, to open a criminal investigation in a circumstance where she and her senior colleagues agreed that the available evidence was insufficient to support such action.51 She also refused to sign a letter to a bank declaring that probable cause existed to justify seizing assets held by the bank. Ms. Cheung’s conclusions were subsequently validated by a U.S. magistrate judge and at least one other U.S. Attorney’s office.
Adams Prosecutors. Mr. Bove and Ms. Bondi accepted the resignations of Ms. Sassoon and almost a dozen other Department lawyers handling (or told to handle) the Adams prosecution because they refused to ask a court to dismiss a well-founded indictment as part of a political deal. In her resignation letter, addressed to Ms. Bondi, Ms. Sassoon explained that offering to drop a prosecution in exchange for a promise of assistance would violate Section 1- 8.100 of the Department’s Justice Manual, the words of which are worth quoting here:
The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.52
She also pointed out that:
Threatening criminal prosecution even to gain an advantage in civil litigation is considered misconduct for an attorney. See, e.g., D.C. Bar Ethics Opinion 339; ABA Criminal Justice Standard 3-1.6 (“A prosecutor should not use improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion.”).53
Ms. Sassoon acknowledged the “zealous advocacy” memorandum, but said that, because she could not see any good-faith basis for the proposed deal, to support it in court would violate her duty of candor under New York Rule 3.3.54
All of the foregoing lawyers. In addition to the different rules that applied to each of the Department lawyers discussed above, Ms. Bondi’s campaign of coercion also prevented all of these lawyers from complying with their own duties to “exercise independent professional judgment and render candid advice” as required by every relevant jurisdiction’s Rule 2.1 of professional conduct, or were terminated for their unwillingness to violate that duty. Ms. Bondi’s threat to subject to discipline or terminate any Department lawyer who refuses because of their “personal . . . judgments” to sign a brief or appear in court stands in direct conflict with Department lawyers’ duty under Rule 2.1. That duty is binding on a lawyer in every relevant jurisdiction even if that lawyer is a subordinate acting at the direction of another.55 Reuveni, Cheung, Sassoon and other lawyers involved in the Adams prosecution were compelled to either quit their jobs to avoid violating that duty or were fired for doing so. In the cases of Ms. Cheung and the Adams prosecution, Department lawyers were placed under intense pressure to knuckle under and violate their ethical duties.
In the EPA Clean Energy contract investigation, Ms. Cheung had an ethical duty to evaluate whether there was sufficient evidence to open a criminal investigation and for claiming that contract funds held by a bank were subject to seizure and forfeiture. But rather than acknowledge Ms. Cheung’s exercise of her professional judgment, Interim U.S. Attorney Martin demanded that she sign a letter stating that she was commencing a criminal investigation and ordering the bank not to disburse any funds. When she refused to ignore her ethical duties by signing the letter, Martin fired her.
In the Adams case, lawyers in the Criminal Division were required to exercise their independent professional judgment with respect to whether the motion to dismiss the indictment could be filed in good faith and whether it was otherwise consistent with their professional duties. But instead of acknowledging and accommodating their concerns and ethical obligations, Mr. Bove accepted Ms. Sassoon’s resignation and moved the case to the Public Integrity Section, called a meeting with the attorneys in the unit, and gave them an hour to decide who would sign the motion with the implied threat of dismissal looming over the conversation.56 Since Mr. Bove was Ms. Bondi's deputy, it is reasonable to assume, subject to further investigation, that she was aware of and approved his actions.
In a recent opinion on the ethical duties of government lawyers, the New York City Bar Association squarely addressed the relationship between a lawyer’s duty to zealously advocate and the duty to exercise independent professional judgment. The Bar Association held that if a government lawyer in exercising her independent professional judgment determines there is no basis for a legal position she is directed to take, she is ethically prohibited from following the directive:
Each lawyer retains a personal obligation to comply with the Rules, even if also being obliged to “advocate zealously” on behalf of the government that employs them. Because each lawyer must comply with the Rules, it follows necessarily that each lawyer must retain the independent judgment to determine whether a certain course of conduct must result in a violation of the Rules. That being so, no government lawyer may follow a policy that requires them to follow instructions regardless of consequences. . . Lawyers, as officers of the legal system and the courts, may not take positions or make arguments that they believe have no legal basis. Therefore, lawyers must always retain the discretion to make independent professional judgments about the law – from the law of the land down to the lowliest rule and regulation.57
Accordingly, Mr. Reuveni, Ms. Cheung and Ms. Sassoon were ethically required to take the actions they took and Ms. Bondi’s responses violated her ethical duties under two Florida rules:
First, her conduct violates Rule 4-8.4(a), which provides that it is misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. . . .”58 In every case above, Ms. Bondi acted directly, or through Messrs. Bove, Blanche or Martin, to compel their subordinate lawyers to violate those lawyers’ professional obligations. These actions were knowing, moreover, since in every case, one or more lawyers were fired or allowed to resign after they had explained how following these orders would cause them to act unethically.
Second, Ms. Bondi’s actions violate Rule 4-5.1, the ethical rule regarding a lawyer’s ethical responsibility with respect to her managerial duties as Attorney General and her supervision over subordinate lawyers. Rule 4-5.1(a) requires that managers “make reasonable efforts to ensure that the firm59 has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct.” Rule 4-5.1(b) applies to the Department of Justice and requires a lawyer “having direct supervisory authority over another lawyer [to] make reasonable efforts” to ensure that their subordinates conform to the Rules.
The ethical problem vividly illustrated by the three examples concerns both Ms. Bondi’s managerial and supervisory duties. Ms. Bondi’s “zealous advocacy” memorandum and the actions of her senior team set in motion measures designed to ensure that subordinates would violate their ethical obligations whenever it serves the priorities of the Administration. Such activity is surely more blameworthy than the usual violation of Rule 4-5.1, which turns on the reasonableness of a supervisor’s efforts. It is even more egregious that the person driving this campaign is the Attorney General of the United States, the highest-ranking lawyer in the nation and the holder of an august and storied office.
Ms. Bondi may object that, in each of these examples, most of the overt acts were taken by her deputy at the time, or in one example by the Interim U.S. Attorney for the District of Columbia. But, as just noted, Rule 4-8.4(a) prohibits a lawyer from violating the Rules of Professional Conduct “through the acts of another.” Similarly, Rule 4-5.1 focuses on what actions a lawyer has taken to shape the actions of his or her subordinates. The adequacy and nature of those actions must be assessed in light of those subordinates’ actions. Where the reaction of subordinates is to resign rather than commit an unethical act, the nature of the measures put in place by Ms. Bondi is plain. Also, Ms. Bondi expressly adopted the actions of her deputies in both the Reuveni and Adams examples. She proudly took credit, on nationwide television, for Mr. Reuveni’s suspension. And she was the sole addressee of Ms. Sassoon’s letter, which requested a meeting with her to discuss the issues it raised. While Mr. Bove responded to that letter the next day, it is inconceivable that he did so without first checking with Ms. Bondi since he was her deputy.
Ms. Bondi may also argue, in the Reuveni example, that she had no intention of requiring unethical behavior; that all she really meant was something more benign, like for her lawyers, when the facts and law are against them, to “pound the table and yell like hell,” per the aphorism attributed to Carl Sandburg.60 It is clear, however, from her Fox News appearance that what really irked Ms. Bondi was Mr. Reuveni’s up-front concession of the facts. As she said on the broadcast, that “would be a defense attorney walking in conceding something in a criminal matter. That would never happen in this country.”61 This of course was not a criminal proceeding, and as we explain in the next section, Ms. Bondi either misunderstands or grossly overstates the actual conduct of lawyers in judicial proceedings.
The crowning irony of this case is that, as the comment to Rule 4-1.3 clearly explains, while “[a] lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf,” the lawyer may only “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”62 Rule 4-1.3 does not justify requiring a subordinate to breach his or her duty of candor to the tribunal, to initiate a criminal investigation without sufficient evidence, or to use the powers of a prosecutor to advance an administration’s political goals. The comment also clarifies that “reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect”—unlike the way Ms. Bondi and her colleagues have treated their own lawyers. Ms. Bondi’s “zealous advocacy” memorandum thus exceeds what Rule 4-1.3 requires. Rather, what the memorandum expresses is Ms. Bondi’s determination to coerce her subordinates into a concerted campaign of unethical behavior. As explained below, that campaign threatens the administration of justice.
Additional proof of Ms. Bondi’s breach of her duty under Rule 4-5.1(a) to make reasonable efforts to ensure that the Department has instituted measures to reasonably assure that all lawyers comply with the Rules of Professional Conduct can be gleaned from the removal of the head of the Department’s Office of Professional Responsibility (“OPR”)—Jeffrey Ragsdale.63 OPR handles internal ethics investigations.64 Tellingly, despite the fact that Mr. Ragsdale was ousted more than two months ago, OPR’s website does not identify anyone as having replaced him as head of the Office. All it states under the heading “Leadership” is “Counsel”.65 It is reasonable to infer that Mr. Ragsdale’s termination and Ms. Bondi’s failure to appoint a successor reflect her decision to require that Department lawyers adhere to the directives of her senior leadership team even if the directive violates a lawyer’s ethical duties.66 This is exactly the message that Ms. Bondi’s “zealous advocacy” memorandum delivered.
C. Ms. Bondi’s Actions Threaten the Administration of Justice (Rule 4-8.4(d)
Rule 4-8.4(d) provides that a lawyer commits misconduct when she “engage[s] in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis . . .”67 While we acknowledge that this Rule focuses on a lawyer’s conduct in a specific case, the spirit of the Rule is aimed at protecting the administration of justice and “the public’s confidence in our system of justice.”68 This broad purpose encompasses a range of conduct that seriously undermines the administration of justice.
Here, by aggressively implementing a zealous advocacy policy that is directed towards conduct in pending and future judicial proceedings, and which requires her subordinates to routinely violate the Rules of Professional Conduct, Ms. Bondi has elevated loyalty to the person who appointed her (President Trump)69 over the interests of her client (the United States). The “zealous advocacy” memorandum itself conflates the two, by stating that President Trump “sets . . . the interests of the United States”:
It is the job of an attorney privileged to serve in the Department of Justice to zealously defend the interests of the United States. Those interests, and the overall policy of the United States, are set by the Nation's Chief Executive, who is vested by the Constitution with all "[E]xecutive Power.”
Ms. Bondi’s memorandum, and the campaign of coercion and intimidation she has set in motion to implement it, go far beyond the particulars of the three examples discussed above. Rather, they influence—and are intended to influence—the conduct of all Department lawyers in every matter. Indeed, because the Department is the one federal agency focused directly on the law, and staffed by lawyers, Ms. Bondi’s campaign affects all federal lawyers. Thus, it is profoundly prejudicial to the administration of justice in both existing and future cases and accordingly violates the spirit of Rule 5-8.4(d).
Department lawyers have historically seen themselves as setting an example for all government lawyers. The degree to which this proud tradition has now been trampled upon is made apparent by several well-known descriptions of the unique role of Department lawyers. The most famous, deservedly, is The Federal Prosecutor, a speech delivered in the Great Hall of the Justice Department on April 1, 1940, by former Solicitor General, then-Attorney General, and later Supreme Court Justice, Robert H. Jackson, at the Second Annual Conference of U.S. Attorneys:
The prosecutor has more control over life, liberty, and reputation than any other person in America. . . . This authority has been granted by people who really wanted the right thing done – wanted crime eliminated –but also wanted the best in our American traditions preserved. . . .
Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. . . .
[T]he citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.70
Supreme Court Justice George Sutherland expressed similar sentiments:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.71
In United States v. Tapp, Chief Judge William T. Moore Jr. observed:
The traditional understanding about state and federal prosecutors is that they should have heightened ethical responsibilities. Traditional thinking is that federal prosecutors should represent the government in a loyal and disinterested manner. They are charged with an overarching duty to seek justice.72
We count on lawyers to conduct themselves ethically at all times. Justice Department lawyers have a higher obligation. Ms. Bondi has launched a concerted effort to override ethical obligations whenever they stand in the way of achieving her and her superior’s political goals. This conduct is deeply prejudicial to the rule of law and the administration of justice, as well as a violation of her own ethical obligations. We urge The Florida Bar to investigate the allegations made here and to take appropriate action.
Respectfully submitted:
Jon May** Creative Criminal Defense Consultants
LAWYERS DEFENDING AMERICAN DEMOCRACY
By: ________/s/ Scott Harshbarger, Chairman Former National President of Common Cause Two-term Attorney General of Massachusetts**
DEMOCRACY DEFENDERS FUND
By: ________/s/___________ Norm Eisen, Executive Chair Democracy Defenders Fund
LAWYERS FOR THE RULE OF LAW
By:_________/s/___________ Daniel N. Arshack President, Lawyers for the Rule of Law
Richard Abel** Connell Distinguished Professor of Law Emeritus UCLA School of Law
Jane Aiken** Former Dean Wake Forest School of Law Member of the DC bar
Anthony V. Alfieri** Michael Klein Distinguished Scholar Chair & Professor of Law University of Miami School of Law
Ty Alper** Clinical Professor of Law University of California Berkeley, School of Law
Martha W. Barnett Former President, American Bar Association Board Member, Lawyers Defending American Democracy
Anita Bernstein** Anita and Stuart Subotnick Professor of Law Brooklyn Law School
Shelley Broderick** Dean Emerita & Joseph L. Rauh, Jr. Chair of Social Justice UDC David A. Clarke School of Law
Susan Brooks** Professor of Law Drexel University Thomas R. Kline School of Law
Virginia Canter Ethics and Anticorruption Chief Counsel and Director Democracy Defenders Fund
James W. Conrad, Jr. Principal, Conrad Law & Policy Counsel** Volunteer, Lawyers Defending American Democracy
Scott Cummings** Robert Henigson Professor of Legal Ethics University of California Los Angeles, School of Law
Angela J. Davis** Distinguished Professor of Law American University Washington College of Law
Evan Falchuk Board Member, Lawyers Defending American Democracy
Nicholas Fels Retired Partner, Covington & Burling LLP Board Member, Lawyers Defending American Democracy
Helen E. Freedman Justice of the New York Appellate Division, First Department. (Ret.)
Bennett Gershman** University Distinguished Professor of Law Pace School of Law
Nancy Gertner** Former U.S. District Court Judge (D. Mass) Senior Lecturer in Law, Harvard Law School
Cynthia Godsoe** Professor of Law Brooklyn Law School
Lissa Griffin** Professor of Law Pace School of Law
John Wesley Hall** Past President NACDL Past Chair NACDL Ethics Committee
Stephen F. Hanlon** Former Pro Bono Partner, Holland & Knight, LLP Past Chair, Section of Civil Rights & Social Justice, American Bar Association
G.S. Hans** Clinical Professor of Law Director, Civil Rights and Civil Liberties Clinic Cornell Law School
Barbara Jaffe Associate Justice, New York Supreme Court (Ret.)
Marcy L. Kahn Associate Justice, New York Supreme Court, Appellate Division (Ret.)
JD King** Professor of Law Rutgers Law School
John Koski Former Partner and Global Chief Legal Officer, Dentons Board Member, Lawyers Defending American Democracy
Bruce Kuhlik** Former Assistant to the Solicitor General, U.S. Department of Justice Adjunct Professor, Georgetown University Law Center Volunteer, Lawyers Defending American Democracy
Lisa Lerman** Professor of Law Emerita The Catholic University of America
Theo Liebmann** Clinical Professor of Law Executive Director Freedman Institute for the Study of Legal Ethics Hofstra School of Law
David Luban** Distinguished University Professor Georgetown University Law Center
Richard Lubin Past President of the American Board of Criminal Lawyers Former Board Member of National Association of Criminal Defense Lawyers
Bruce Lyons Past President, National Association of Criminal Defense Lawyers Past President, Criminal Law Section, American Bar Association
Stephen Marcus** Volunteer, Lawyers Defending American Democracy Adjunct Professor, Georgetown University Law Center
Howard Matz Former U.S. District Judge (C.D.CA)
Thomas Mela Retired Managing Attorney of the Massachusetts Advocates for Children Board Member, Lawyers Defending American Democracy
John T. Montgomery Board Member, Lawyers Defending American Democracy
Karla Moskowitz Justice of the New York State Appellate Division, First Department (Ret.)
Cheryl Niro Past President, Illinois State Bar Association Board Member, Lawyers Defending American Democracy
Lorriane Nordlund Judge, Fairfax (VA) County Circuit Court (Ret.)
Barbara J. Pariente Retired Chief Justice of the Florida Supreme Court
Russell G. Pearce** Professor of Law Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion Fordham University School of Law
Jeffrey J. Pokarak** Professor of Law Director, Supreme Court Clinic Suffolk University Law School
Peggy A. Quince Retired Chief Justice of the Florida Supreme Court Board Member, Lawyers Defending American Democracy
Gershon M. (Gary) Ratner Co-Founder and Board Member, Lawyers Defending American Democracy Former Associate General Counsel for Litigation, U.S. Department of Housing & Urban Development
Mitt Regan** McDevitt Professor of Jurisprudence Director, Center on National Security and Law Coordinator, Program on Law, Ethics, and International Security Georgetown University Law Center
Lauren Stiller Rikleen Executive Director and Board Member, Lawyers Defending American Democracy Past Chair Civil Rights & Social Justice Section of the American Bar Association Former President, Boston Bar Association
Cassandra Robertson** John Deaver Drinko - BakerHostetler Professor of Law Case Western Reserve University School of Law
Estelle H. Rogers Former Member, ABA House of Delegates Board Member, Lawyers Defending American Democracy
Tanina Rostain** Agnes Williams Sesquicentennial Professor of Justice Innovation Georgetown University Law Center
Robert Rubinson** Dean Gilbert A. Holmes Professor of Clinical Theory and Practice University of Baltimore School of Law
David Rudovsky** Kairys Rudovsky Messing Feinberg & Lin Senior Fellow University of Pennsylvania Carey School of Law
Philip Schrag** Delaney Family Professor of Public Interest Law Georgetown University Law Center
Tony Sebok** Professor of Law Benjamin N. Cardozo School of Law
Ilene Seidman** Clinical Professor of Law Emerita Suffolk University Law School
R. Kelly Sheridan Past President, Rhode Island Bar Association Board Member, Lawyers Defending American Democracy
Gary Simson** Macon Chair in Law and Former Dean, Mercer Law School Professor Emeritus, Cornell Law School Board Member, Lawyers Defending American Democracy
David Singleton** Professor of Law UDC David A. Clarke School of Law
Rima Sirota** Professor of Law, Legal Practice Georgetown University Law Center
Abbe Smith** Scott K. Ginsburg Professor of Law Georgetown University Law Center
Janet R. Studley** Past Chair, Section of Civil Rights & Social Justice, American Bar Association
Jeff Swartz** Miami-Dade County Court Judge (Ret.) Distinguished Emeritus Professor of Law, Cooley Law School, Tampa Bay Campus Past Chair, Fla. Sup. Ct. Judicial Ethics Advisory Committee
Bruce Lee Udolf Associate Independent Counsel for the Whitewater investigation Former Chief of the Public Integrity Section, USAO, SDFL
Rodney J. Uphoff** Elwood L. Thomas Missouri Endowed Professor Emeritus of Law University of Missouri School of Law
Bradley Wendel** Edwin H. Woodruff Professor of Law Cornell Law School
Walter H. White Jr. Former Wisconsin Securities Commissioner Past Chair Civil Rights & Social Justice Section of the American Bar Association Board Member, Lawyers Defending American Democracy
Lucien Wulsin** Founder and Retired Executive Director, Insure the Uninsured Project Board Member, Lawyers Defending American Democracy
Ellen Yaroshefsky** Distinguished Professor of Legal Ethics Hofstra School of Law
** These signatories have signed solely in their individual capacities and.do not do so on behalf of the named organization or other affiliation.
_______________
Notes:
1 Ms. Bondi’s Florida Bar Number is 886440. Her contact information is: United States Department of Justice 950 Pennsylvania Ave., NW, 20530-0001 202-514-2000
2 R. Regulating Fla. Bar 4-8.3, Comment. (“An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”).
3 Letters from Allie F. Huston, Bar Couns., Fla. Bar (May 20, 2025) and Christopher S. Wackes, Bar Couns., Fla. Bar (May 20, 2025) (on file with the author).
4 Id. (the text of the letters is identical).
5 Leis v. Flynt, 439 U.S. 438, 442 (1979).
6 We note that although The Florida Bar may not, pursuant to Rule 3-7.16(d) of Florida’s Rules of Discipline, investigate bar complaints against “constitutional officers” until after they vacate office, this limitation only applies to officers appointed under the Florida Constitution. See Kane v. Robbins, 556 So. 2d 1381, 1382 (Fla. 1989) (“In any event, school board members are now accorded constitutional status by article IX, section 4(a), Florida Constitution.”). See also § 112.3142, Fla. Stat. (2025) (defining “constitutional officers” for purposes of ethics training to include “the Governor, the Lieutenant Governor, the Attorney General, the Chief Financial Officer, the Commissioner of Agriculture, state attorneys, public defenders, sheriffs, tax collectors, property appraisers, supervisors of elections, clerks of the circuit court, county commissioners, district school board members, and superintendents of schools.”).
7 R. Regulating Fla. Bar 4-8.4, Comment. (“A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice.”).
8 See discussion infra, pp. 10-11.
9 Memorandum of U.S. Att’y Gen. Pamela Bondi to all Dep’t Emp. on General Policy Regarding Zealous Advocacy on Behalf of the United States (Feb. 5, 2025), https://www.justice.gov/ag/media/1388521/dl?inline.
10 See R. Regulating Fla. Bar 4-1.3, Comment.
11 Sadie Gurman, He Represented Contentious Immigration Cases for the Government. His Candor Lost Him His Job, WALL ST. J. (Apr. 15, 2025, at 9:00 ET), https://www.wsj.com/us-news/law/this-la ... licansand- democrats-his-candor-cost-him-his-job-b3515a38?reflink=desktopwebshare_permalink.
12 See Luke Barr, Alexander Mallin & Ivan Pereira, 'No one is above the law': AG Bondi blasts judges accused of helping undocumented immigrants evade, ABC NEWS (Apr. 25, 2025, at 16:40 ET), https://abcnews.go.com/US/judge-hannah- ... =121161497 (Att’y Gen. Bondi); Marina Dunbar & Maya Yang, FBI arrests Wisconsin judge and accuses her of obstructing immigration officials, GUARDIAN (Apr. 25, 2025, at 12:27 ET), https://www.theguardian.com/usnews/ 2025/apr/25/judge-hannah-dugan-milwaukee-arrest?CMP=share_btn_url (FBI Director Patel); and Chris Perez, ‘Egregiously unqualified political hack’: Former US attorneys eviscerate Ed Martin — with over 100 voicing opposition to Trump’s selection of him as DC’s top prosecutor, L. & CRIM. (Apr. 2, 2025, at 14:51 ET), https://lawandcrime.com/high-profile/eg ... -edmartin- with-over-100-voicing-opposition-to-trumps-selection-of-him-as-dcs-top-prosecutor (U.S. Att’y D.C. Edward Martin).
13 This complaint is based entirely on publicly-available primary documents and news reports. The undersigned disclaim any personal knowledge of any of the events discussed here.
14 Bondi, supra note 9, at 1.
15 Id. (emphasis added).
16 All the factual statements in this and the following paragraph are drawn from the complaint in Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Mar. 24, 2025) ECF No. 1.
17 Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Apr 06, 2025) ECF No. 31, at 1.
18 Abrego Garcia v. Noem, 8:25-cv-00951, (D. Maryland Mar. 31, 2025) ECF No. 11. The Department’s opposition was signed by Yaakov M. Roth, Acting Assistant Attorney General – Civil Division, Mr. Reuveni, and Christopher I. Pryby, Trial Attorney, Office of Immigration Litigation.
19 Id. at 3. As a defendant in this case, represented by the government’s lawyers – as well as those lawyers’ supervisor—Ms. Bondi should be bound by this assertion. See Israel v. John Crane, Inc., 601 F. Supp. 3d 1259, 1266 (M.D. Fla. 2022) (“Moreover, lawyers are agents of their clients; clients are therefore bound by what their lawyers assert in a case.”).
20 Hr’g Tr. No. 8:25-cv-00951, 19 (D. Maryland Apr. 4, 2025) (on file with the author).
29 Video posted by Fox News (@FoxNews), FACEBOOK, AG Pam Bondi accuses district court judges of playing ‘whack-a-mole’ (Apr. 6, 2025), https://www.facebook.com/FoxNews/videos ... urtjudges- of-playing-whack-a-mole-with-anti-tru/672899485221131/
30 Id.
31 Id. In fact, Rule 4-3.3 applies equally in civil and criminal cases, except where a client in a criminal case insists on presenting false testimony. See R. Regulating Fla. Bar 4-3.3(b). That is obviously inapplicable to Mr. Reuveni. Also, Ms. Bondi's statement that a defense attorney would never “concede something in a criminal matter” is incorrect. Criminal defense attorneys often concede facts or points of law if they are undisputed and it is in the interest of their client to do so.
34 The facts in this section are drawn from Read the resignation letter by Denise Cheung, a veteran D.C. federal prosecutor, WASH. POST (Mar. 6, 2025), https://www.washingtonpost.com/dc-md-va ... ionletter- denise-cheung/.
35 The facts in this paragraph are drawn from Spencer S. Hsu, Maxine Joselow & Nicolás Rivero, FBI takes up EPA probe amid pushback from judge, prosecutors, WASH. POST (Feb. 27, 2025), https://www.washingtonpost.com/dcmd- va/2025/02/27/trump-fbi-epa-grant-investigation/.
36 Except as otherwise noted, the facts in this section are drawn from Lola Fadulu & Alyce McFadden, A Timeline of Eric Adams’s Indictment, and What Came Next, N.Y. TIMES (Apr. 2, 2025), https://www.nytimes.com/article/ericadams- indictment-timeline.html; Letter from Danielle Sassoon, Fmr. U.S. Att’y S.D. N.Y. to Pamela Bondi, U.S. Att’y Gen. (Feb. 12, 2025) (on file with the author); Read the letter from Emil Bove accepting Danielle Sassoon’s resignation, N.Y. TIMES (Feb. 13, 2025), https://www.nytimes.com/interactive/202 ... -frombove- 1.html; and E-mail from Hagan Scotten, Asst. U.S. Att’y S.D. N.Y. to Emil Bove, Princ. Assoc. Dep. U.S. Att’y Gen. (on file with the author).
37 Letter, supra note 36, at 3.
38 Read the letter from Emil Bove accepting Danielle Sassoon’s resignation, supra note 36, at 1-2 and 5. Mr. Bove placed Hagan Scotten and Derek Wikstrom on administrative leave. Two other prosecutors, Celia Cohen and Andrew Rohrbach, were also placed on leave sometime later.
39 The resignation email that the lead prosecutor, Mr. Scotten, sent to Mr. Bove is particularly scathing: No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives. . . . [O]ur laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me. E-mail, supra note 36, at 1.
43 28 U.S.C. § 530B(a). Congress passed the McDade Amendment in 1998 in response to the Department of Justice’s claim that federal government lawyers were not bound by state ethics rules regarding contacting witnesses represented by counsel. See Nina Marino and Richard Kaplan, Moving Towards a Meaningful Limitation on Wrongful Prosecutorial Contact with Represented Parties, 4 PUB. INT. L. REV. 36 (1999). This law now binds all federal government lawyers, including the Attorney General. See id. § 530B(c) (cross-referencing 28 C.F.R. § 77.2(a) (“The phrase attorney for the government means the Attorney General . . . .”).
44 Pursuant to Rule XI, Section 1(a) of the D.C. Court of Appeals’ Rules Governing the District of Columbia Bar, the D.C. Court of Appeals and the D.C. Board on Professional Responsibility have disciplinary jurisdiction over members of the D.C. Bar, persons appearing pro hac vice in a D.C. case, licensed special legal consultants, clinical professors providing legal services, and persons who have been suspended or disbarred by the D.C. Court of Appeals. See also Bd. Pro. Resp. R. 8.5(a). (“A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.”).
45 See 28 C.F.R. § 77.4(c)(1) (“Where no case is pending, the attorney should generally comply with the ethical rules of the attorney’s state of licensure, unless application of traditional choice-of-law principles direct the attorney to comply with the ethical rule of another jurisdiction or court, such as the ethical rule adopted by the court in which the case is likely to be brought.”) See also R. Regulating Fla. Bar 4-8.5, Comment (“If the Rules of Professional Conduct in the 2 jurisdictions differ, principles of conflicts of laws may apply.”). There are no material differences between the Florida and District of Columbia Rules of Professional Conduct that Ms. Bondi allegedly violated and therefore Florida’s conflicts of laws rule does not apply.
46 See 28 C.F.R. § 77.4(a) and (c). While the Department’s rules prescribe the applicable rules of conduct, they do not address which state bar has disciplinary jurisdiction to determine if a Department lawyer has violated the rules.
47 Ms. Bondi herself refers to these individuals as her “team.” See Pamela Bondi, U.S. Att’y Gen., Introduction at the Department of Justice (Mar. 14, 2025) (“Hi, please be seated. Welcome to the Department of Justice and I love our team. Todd Blanche, Emil Bove, Kash Patel, soon to be Terry Cole, Gaddy Serralta, thank you all. . . . I am so proud to have a team with Emil and Todd and all of our great team and we all work for the greatest president in the history of our country.”), https://www.rev.com/transcripts/trump-speaks-at-doj.
48 Md. R. Prof. Conduct 19-303.3(a)(1), (4).
49 Hr’g Tr., supra note 20, at 20, 35-36, and 50.
50Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113 (4th Cir. April 7, 2025) (concurring opinion of judges Thacker and King), slip op. at 8 note 4.
51 See The Att’y Gen. Guidelines for Domestic FBI Operations, Op. Att’ys Gen. 20-22 (Sep. 29, 2008) (discussing circumstances justifying predicated investigations (and thus use of grand jury subpoenas)). Part II.B.3(a) states: A predicated investigation may be initiated on the basis of any of the following circumstances:
a. An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.
52 U.S. Dep’t of Just., Just. Manual § 1-8.100 (2025). She also cited § 9-27.260 of the Manual, which states: “prosecutors may not be influenced by a person’s ‘political association, activities, or beliefs.’”
53 Letter, supra note 36, at 2.
54 Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.3.
55 See, e.g., R. Regulating Fla. Bar 4-5.2(a). A subordinate can only be excused from exercising independent professional judgment in the event of “an arguable question of professional duty,” and then only if the lawyer acts in accordance with his or her supervisor’s “reasonable resolution” of that question. See R. Regulating Fla. Bar 4- 5.2(b). Ms. Bondi’s termination of Mr. Reuveni for answering the Court’s questions honestly, Mr. Martin’s demand that Ms. Cheung announce the commencement of a criminal investigation and order the bank not to disburse funds and his termination of Ms. Cheung for refusing to do so, and Mr. Bove’s demand that Ms. Sassoon file a motion to dismiss the indictment against in the Adams case were not “reasonable resolution[s]” of Reuveni’s, Cheung’s and Sassoon’s duty to exercise independent professional judgment. If Reuveni had failed to answer the Court’s question honestly and if Cheung and Sassoon had acceded to Martin’s and Bove’s demands, they would have violated their duties under Rule 4-2.1 as well as their other ethical duties identified above. Accordingly, Ms. Bondi has no basis for arguing that if Mr. Reuveni, Ms. Cheung and Ms. Sassoon had acted in accordance with the demands of their supervisors, they would not have violated their ethical duties pursuant to Rule 4-5.2(b).
56 Devlin Barrett, Adam Goldman, Glenn Thrush & William Rashbaum, In Moving to Stop Adams Case, Career Lawyer Sought to Stave Off Deeper Crisis, N.Y. TIMES (Feb. 16, 2025), https://www.nytimes.com/2025/02/16/us/p ... =url-share.
57 NY City Bar Assn Comm on Prof Ethics Formal Op. 2025-1 [2025].
58 R. Regulating Fla. Bar 4-8.4(a) (emphasis added).
59 There is no question that this rule applies to supervisors in legal offices contained within a government agency. See R. Regulating Fla. Bar 4-5.1, Comment. (“[L]awyers who have managerial authority over the professional work of a ‘firm’... include members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency…”) (emphasis added). See also R. Regulating Fla. Bar 4, Preamble. (“‘Firm’ or ‘law firm’ denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in the legal department of a corporation or other organization.”) (emphasis added).
63 Perry Stein, Shayna Jacobs, Carol Leoning & Ann Marimow, Several top career officials ousted at Justice Department, WASH. POST (Mar. 7, 2025), https://wapo.st/43l7uEQ.
66 Stacy Ludwig, formerly the Director of the Department’s Professional Responsibility Advisory Office, also left her position at the Department of Justice. The purpose of this Office is “to provide professional responsibility advice and training to Department attorneys and Assistant United States Attorneys worldwide, on how to carry out their duties, in compliance with the applicable rules of professional conduct.” Former Director of the Professional Responsibility Advisory Office Stacy Ludwig, U.S. DEP’T OF JUST. (Mar. 10, 2025), https://www.justice.gov/archives/prao/s ... tor-ludwig. A replacement Director has not been appointed, again supporting the conclusion that Ms. Bondi is violating her duties under Rule 4-5.1(a) by failing to make reasonable efforts to ensure that all lawyers in the Department comply with the Rules of Professional Conduct. See Professional Responsibility Advisory Office, U.S. DEP’T OF JUST. (2025), https://www.justice.gov/prao.
67 R. Regulating Fla. Bar 4-8.4(d). We note that D.C. Rule 8.4(d) states that it is professional misconduct for a lawyer to “[e]ngage in conduct that seriously interferes with the administration of justice” but does not state that the conduct must be “in connection with the practice of law.” Nor does the D.C. Rule provide examples of the types of conduct that trigger the application of the Rule. Since Ms. Bondi’s conduct relates to the practice of law and both rules prohibit conduct that is “prejudicial” to or “interferes” with the “administration of justice,” there is no material difference between them.
68 R. Regulating Fla. Bar 4-8.4(d), Comment.
69 Bondi supra note 47.
70 Robert Jackson, Fmr. U.S. Att’y Gn., Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940). See also R. Regulating Fla. Bar 4-3.8, Comment (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”).
71 Berger v. United States, 295 U.S. 78 (1935).
72 United States v. Tapp, 2008 WL 2371422 (S.D. Ga. 2008) at *10 (emphasis in original).
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Trump’s Legal Team RUNNING WILD as Bar Complaints Gets REJECTED Legal AF Jun 11, 2025
Bar Associations are struggling to rein in Trump and his Administration’s blatant lawlessness. A new bar complaint rejected by The Florida Bar against AG Pam Bondi, is that the outlier or par for the course. Legal AF hosts Michael Popok and Melba Pearson are joined by Jamie Conrad of Lawyers Defending American Democracy, who helped craft the complaint, and Judge Barbara Jaffe, one of its signatories, to break it down.
Transcript
[Michael Popok] Welcome to a special edition of Legal AF with Michael Popok and Melba Pearson We're going to talk with a couple of amazing guests about a development that just happened related to a grievance filed a bar grievance filed against Pam Bondi the attorney general of the United States I can only think of about a dozen or so things that that grievance could have been based on um violation of the Department of Justice guidelines being a political hack instead of using proper prosecutorial discretion um using proper ethics Uh she's already uh her department overall has already been chastised time and time again in federal courts for uh doing things like um not being candid with the tribunal lying to judges u firing lawyers who told the truth to judges and are no longer with the Department of Justice because that's not part of their policy and a group of about 70 different leading uh people in our field in in Melbour Myfield um ethicists law professors uh lawyers former justices of the Florida Supreme Court former judges and and others got together put together a what I think is an airtight grievance and something happened at the Florida bar of which Melba and I are a member that wasn't what we expected Let's bring in our guests We have uh uh Barbara Jaffy retired judge from the New York Supreme Court and we've got Jamie Conrad who uh works with a group called Lawyers Defending American Democracy was one of the architects for the grievance Barbara also worked on it It was one of the signitories And let's bring everybody in and let's start talking about what happened Jamie since you put the thing together why don't you talk about what was the rationale behind it how is it framed what were what was your argument about why uh rules of professional responsibility in Florida have been violated by Pam Bondi and then we can take it with the rest of our team Okay thanks very much Um yeah what um several of us had noted um was that that uh the attorney general in her first day issued this memorandum on zealous advocacy on behalf of the United States and and that sort of got a few people's attention because for two reasons but related ones She said well the the president of the United States determines the interests of the United States but she also described the lawyers of the justice department as the president's lawyers which they're not there are the United States's lawyers um um but but so there was some interest in gosh how is this going to play out um within the justice department and very quickly it emerged that that what uh Attorney General Bondi means by zealous advocacy is that she expects lawyers for the department of justice to violate their own ethics obligations whenever that suits the interests of President Trump Um and and we cited three examples in in excruciating detail including the the example you bring up of the of the the lawyer in federal the lawyer who was fired for telling the truth in federal district court in Maryland And then two other examples I can go into Um and so we explained kind of the common themes to those examples and uh why that indicated ethics violations by the attorney general And what in particular uh I mean just just to bring everybody sort of into our world for a moment in a teachable moment Every state has a rule of rules of professional responsibility or conduct Most of them modeled after some model rules with some with some changes We uh the lawyers on this round table all swore uh allegiance to it and an oath to it to uphold it and to practice pursuant to it That's what makes us a profession a self-p policing profession right i mean there's the unitary bar states like Florida where there is a thing called the they they love to capitalize that the the Florida bar and then there's places like New York where I also practice along with Barbara where uh divisions or departments of of the court system the appellet court of which you were sworn regulate your conduct but using the same rules What were the rules that you outlined or that was outlined in the grievance that you believe have been violated by uh Pam Bondi there there really three The first of them and the numbers kind of are the same from state to state One is called 8.4A and and that prohibits a lawyer from trying to uh induce somebody else to violate the ethics rules um which which she did kind of consistently in these three examples The second one is it's 5.1 and that's sort of a supervisory thing The general notion there is that if you're in charge of a legal department at a company or a firm or a government agency you need to have some kind of system to make sure that your the people you supervise comply with ethics rules And we said that she essentially turned that on its head and tried to make sure that her employees didn't comply with ethics rules whenever it got in in the way of what she wanted And then the third one is kind of a catch-all 8.4A which is basically um uh interfering with the the uh threatening the administration of justice And and and that's kind of the broad notion that lawyers are meant to uphold the rule of law and the justice system and not undermine it So Melba from your vantage point of being both an American Civil Liberties Union lawyer and weren't you a prosecutor yes former prosecutor and former ACLUF federal prosecutor state Oh you're a state Okay But as even as a state prosecutor did did did you think that you were not subject as a lawyer to that you left them you abandoned them at the at the door of your office when you became a prosecutor absolutely not And that was one of the things that was very important to me in selecting what office I was going to work with because I never wanted to be in a situation where I couldn't look at myself in the mirror And I was compromising not only my personal ethics but the ethics that have been set forth to the Florida Bar I raised my right hand I swore an oath I took that seriously So I never wanted to be in a situation where I was forced to move forward with a case where I felt I had insufficient evidence Maybe Sorry don't mean to interrupt you Go ahead Yeah or or that I knew the police did something that was inappropriate and just cover it up and keep moving Anyway that that's suborn perjury while you're at it Exactly Did I fall asleep in the Florida bar review course on ethics when they told me that if I became a federal prosecutor or federal officer that I was I could therefore abandon my the rules of professional responsib yeah like hold on let me look yeah no nowhere nowhere and and and again it's just so tragic because prosecutors especially prosecutors have a higher burden you know yes all lawyers have to follow the ethical rules but a prosecutor holds someone's life literally life in their hands you can determine whether or not someone goes to prison for life you can determine whether or not someone faces the death penalty and gets put to death you have a higher burden and you have to make sure that you do everything by the book correctly And again if you don't have a case you have no business bringing that in court And that's what happened here Sorry I don't mean to cut you off Let's take it from a judge's perspective because we have Judge Barbara Jaffy here Um so judge couple of things Um are you aware of this doctrine that the Florida Bar you know I don't want to leave people on pins and needles here Why don't you talk about what the Florida Bar did in the They just said "We're not going to uh exercise our authority over Miss Bondi because she is a federal officer and we don't want to get we don't want to encroach on the feds doing what she's got to do which is very disingenuous because there's no authority for that." And yet she practicing law without a license then I mean I don't I don't understand and she gets to go to court and argue as a member of the bar but she's not regulated by the bar So it seems I mean your audience should also know that every law student has to take a a course on ethics Ethics is a real cornerstone of of legal training But in Florida it seems like it's the wild west I happen to see that Governor Scott had actually uh refused uh removed a prosecutor the chief prosecutor who was uh refused to impose the death penalty in several cases And on the first case he removed her from that case And then he removed her from many cases blanket removal Yeah Simply because she made it known that she would not do a capital prosecution did the same thing which was her yes which was within her discretion So your audience should understand that when you said self-regulating it it really is self-regulating and that's the honor code that we all are familiar with Yes there are disciplinary committees and somebody is going to file a complaint like uh Jamie did and his um wonderful organizations who filed this complaint Well let's do it this way If a state or federal prosecutor come into your courtroom and you have found through factf finding that they have been uh they had lied to the tribunal right they had forget candid They lied to the tribunal You wouldn't would you refer them over to a bar grievance committee absolutely Absolutely And I've done it Right There you go And you've done And has that bar grievance committee turned around and said "Sorry they're feds They don't have to comply with ethics Well it wasn't a fed right if it had been you know in New York that would not have happened right and that's the problem that it's jurisdiction by jurisdiction It's like Texas circling the wagons around um who was the one that wanted to release the Kraken uh Sydney Powell and not disbarring her when she should have been disparred You know whereas if you're in Wisconsin or Arizona or or some other freethinking state you know your your law license shouldn't depend on right the lackis that are put in place by the governor into those positions I'm actually embarrassed for the Florida Bar I've been a proud member of it since 95 I'm really embarrassed by their reaction Mela what were you gonna say yeah I was just going to start want to jump in and say how Rudy Giuliani got disbarred for all of his foolishness in both New York and in DC So there is precedent for it It's not like this can't done It's just Florida threw up their hands and was like I don't want to do anything How long They didn't take much They didn't take that long How long was the actual How long was the grievance how how many pages was the grievance and then how how short was the Florida Bar response and how quickly was it given it's 23 pages single space not counting the you know two or three pages of signatures um uh their dismissal We filed on June 5 They came back basically the very next day with a a one-page form letter This is the third uh complaint against against Bondi that they've dismissed uh that's about you know 100 words Um but but you mentioned you know it's sort of disingenuous The thing that's so maddening about this is that there are sort of stated purposes Well we don't want to encroach on the freedom of the federal executive branch to do its thing But the the policy of the United States with respect to the coverage of government lawyer justice department lawyers uh by state ethics rules is that they are covered There's a law called the McDade amendment that was passed in 1998 because at one point in in that time the justice department actually said that they weren't subject to ethics rules and this had to do with lawyers contacting unrepresented parties which represented parties which you're not supposed to do you're supposed to contact their lawyer And so Congress passed this McDate amendment and said that uh government lawyers and they specifically say that the attorney general is one of these government lawyers are supposed to be subject to state ethics rules just like any other lawyer in that state So how did Florida get around that they All right Are are you going to do a supplement a motion hearing this will be the basis for our you know next steps Um is that normal for the Florida Bar not to meet the arguments that you put forward i mean I find that very strange They you know they have this thing There's this sort of odd constitutional officer doctrine in Florida that apparently goes back to the 19th century where some some office that's created by the state constitution the gets treated in a in a sort of kid glove way Um and and so for uh some period of time uh although there's not actually a rule that says this um this the state bar has refrained from reviewing the ethical behavior of people who have an office spelled out in the Florida Constitution but it's never to our knowledge it's never been applied to somebody who has an office created under the federal constitution which you think you know is sort of not a of the state's business They let let the feds worry about that Melba why don't you take it take it home here for the audience about what are the implications and ramifications of state bars refusing to um admonish and investigate members of Donald Trump's inner circle when it comes to the the legal process the Department of Justice his former criminal defense and impeachment lawyers are all his inner circle U you know whether you all four uh Emil Amil Bo maybe or maybe not be on the third In the meantime he's the number three in the Department of Justice Blanch the number two Pam Bondi the number one and uh John Sauer the solicitor general All you know we talked about them at length for years as Donald Trump's uh you know criminal defense brain trust And to now to imagine a world where they are untethered to ethics potentially Um what is I guess take it from there and also what should federal judges do when federal prosecutors violate their oath whether it's Pam Bondi or anybody else what do they do they ref look there's grievance processes through the federal courts is that now where we need to need to take these matters well I I I think so I think so I mean a couple things so first off one aspect that's very critical to any barb membership is what's called continuing legal educ education credits So every year or every reporting cycle you have to take classes to basically stay current And one of those classes is ethics So it's not like you you know took it in law school and you can forget about it and not worry about it In order to keep your bar license you're supposed to continue to take ethics classes So again the fact that they're not even tying this to the to what their day-to-day duties are or even thinking about that is just so problematic But to have all of these attorneys completely untethered I think what needs to happen these judges need to start telling them to bring their toothbrush and hold them in contempt When people start seeing themselves complain and go have to sit in the box and the box is usually where for those who don't know in the courtroom there's an area where you have to sit when you're about to be taken into custody So once you hit that box you already know what time it is you know that you're gonna go into custody and have a bologoney sandwich that's going to be stale on horrible wonderbread Okay So you know once I think that starts happening people will have to start changing their tune because now the A USA's themselves are going to be like I'm not going to jail for this I I got bills to pay I got a family to support This is not what I signed up for And judges are going to have to start growing a pair Sorry Judge Jeffy Are gonna have to start growing a pair You're retired Sorry uh on this issue because we have an administration that uh indicted a state court judge indicted a member of Congress and today threatened to arrest and indict a sitting governor of the United States So judges I'm sorry they're going to have to pull their weight And when they get a guy like Drew Enson lying to them uh about Armando Abrego Garcia in the courtroom um and about the planes whether it's Judge Bodberg's ch uh courtroom or Judge Zennus' courtroom like like Melba said they better start bringing their toothbrushes or as I was taught when I did a fair amount of white collar criminal defense in my career just make sure at the end of your day when your client goes through the metal door you go through the wooden door We got to send some of these people through the metal door Yeah I have a question Is it possible to start an investigation against Pam Bondi and in in service of this doctrine or this um you know preference that you don't encroach do the investigation just don't sanction until she's out of office Has anybody ever raised an idea like that does that make sense if you certainly lose that protection right yeah I mean but that that's part of what they said They said they can't invest investigate or prosecute They said they they can't do absolutely anything which again if it was one of us we don't enjoy that same privilege And I think I think Jamie I think this should be tested I brought up with Barbara on a side text that Alina Haba should be next on the list and New Jerseyy's bar should get a bar grievance And I think they might take it more seriously New York and New Jersey sort of take things more seriously especially given Alina Haba doing the same thing I mean the tone is from the top The chief law enforcement officer of America is Donald Trump which is a chilling thought Uh and then right down from there Pam Bondi just a political hack doing his bidding And and there's no greater political hack than uh Alina Haba who it's obvious that the entirety of the Department of Justice just uses the DOJ manual as a doors stop It's just holding open the door They're not reading it They're not applying it They're not abiding by it And then what are this is this is the struggle we'll leave this chat with What are we to do to police our profession um and to give confidence to to to the um to our audience to the civilians that uh are part of the public criminal justice system at all How do we renew that confidence if we can't regulate the conduct and behavior of an outofcrol attorney general short of putting them in jail we have jailed attorney generals in the past see the Nixon administration So it it does happen but but let's just leave I'll just go around the horn What what what is the next step here other than asking the Florida Bar to reconsider is it trying to go after somebody like Galina Hava is it getting federal judges to make referrals to fed the federal side of this equation what is it let's start with Judge Jaffy Well if I were a betting gal I would bet that New Jersey right now is enacting some kind of rule that would preclude Alina from being uh from filing a complaint against her That's You think New Jersey is going to block it the blue state of New Jersey why well isn't there anybody I mean is it totally blue New Jersey is there anybody oh okay Yeah I'm from New Jersey Let's do it there Let's Let's go Let's go That's what I'm saying You got Murphy you got the attorney general you've got the legislature Uh you you just had uh uh you Baraka mayor of New York get arrested on phony charges and him filing a lawsuit against Alina Haba Now is the time If I'm surprised Baraka hasn't done it maybe he has So Jamie isn't this uh Elad's next uh step breaking news right well Elad you know they're that's not a partisan organization They're they're basically just focused on defending the rule of law and and and and trying to flag people who are who are trampling it But but um you know in answer to your question we need to do whatever wherever whenever we can to to buck up and and support the bar associations uh and state bars that that will do their jobs and the judges that stick out their necks to to to to call things the way they see them because I mean the rule of law is the only thing at this point that distinguishes us from Hungary or Venezuela Yeah agreed That that and the food Um Mel Melba Melba why don't you why don't you round it out as a Florida bar member what do you think should happen next i think it needs to be a full court press Every tool that we have in our toolbox we need to use So whether we're looking at judicial referrals whether we're looking at filing bar complaints in other states uh whether we're looking at voting because remember you know some judges are elected So you know doesn't apply to federal judges They were appointed but state judges may have a role in some of this too So you know again fullcourt press any and every tool we need to throw at it and not be afraid But contempt I think is the big one Stop putting people in in in in in the jail cell We will see a whole different chain of events Quote of the show bring your toothbrush That that'll change hearts and minds Absolutely I'm glad everybody got together You're on a special edition of Legal AF with retired judge Barbara Jaffy with Jamie Conrad with Melba Pearson and of course with Michael Popach talking about how we regulate and hold lawyers accountable who also happen to be federal officers like the attorney general of the United States Take a moment You're here already Take a moment hit the free subscribe button for Legal AF Help us to continue to grow We're trying to reach 700,000 subscribers before this month is over We can only do it with your fervent support and make our move you join our movement and make your journey part of our own So until my next report along with Melba Pearson this is Legal AF uh reporting.
BREAKING: Sen. Padilla Thrown to Floor, HANDCUFFED at Kristi Noem Presser The Bulwark Jun 12, 2025 Bulwark Takes
Senator Alex Padilla was tackled and handcuffed at a DHS press conference in Los Angeles after attempting to ask Secretary Kristi Noem a question. Sam Stein and Tim Miller break down the unprecedented and shocking event.
Transcript
hey guys it's me Sam Stein managing editor at the Bull Work and I'm here with Tim Miller we have some really breaking news about 30 minutes ago Senator Alex Padilla of California was physically uh detained pushed onto the ground and arrested at a press conference featuring DHS Secretary Christy Nome crime I'm putting it in quotes and I'll get to that in a little bit was he had the temerity to be disruptive and ask her a [ __ ] question and push her on some of the stuff that she's been saying out there about the people they're deporting this footage is ridiculous and outrageous tim do you want to go first or should we play the footage yeah no um let's play the footage then I'll get it on the back okay here's the footage this is from Padilla's office uh you can see it's shot by an aid to the senator sir sir hands up hands up i'm Senator Alex Padilla i have questions for the secretary because the fact of the matter is a half a dozen violent criminals that you're rotating on your on your I also On the ground on the ground on the ground hands behind your back hands behind your back my hands go behind my back all right cool other hand lay lay flat lay flat other hand turn other hand there's no recording allowed out here i did not know there's no recording allowed out here per FBI rights for building for what i'm sorry there's no recording allowed out here that's my boss i have no here you can record there's no recording okay there you have it us senator pushed to the ground handcuffed treated like you know a trespasser on a at a federal building yeah uncurren what he did also right like this is a press conference they're in a federal building the department the Secretary of Homeland Security is having a press conference where she's ostensibly there to take questions from the gathered media uh I've been to plenty of press conferences such as this i've been a PR flack that wrangles people at press conferences um you know this is not like a private event by nature it's a public event um you know you're inviting the cameras in you're you're asking to make a point uh this is a sender right of course you know if a random person on the street went came in and started screaming and shouting and trying to charge the center you know like there are moments where you could be too disruptive but you can see in that video that this is sitting US senator that comes in is trying to ask a question um you know uh and and maybe in out of order right maybe he wasn't called upon but still in a free country I believe that is still legal i believe that you're allowed to ask questions of our elected officials um without you know without being thrown to the ground and um and by jack booted thugs and that's what happens in this video i mean I I I was pretty alarmed when I saw the first 20 seconds of it that just pushed him out into the hallway yeah again this is a free country like if if he and he's identifying himself I'm I'm Senator Alex Padilla throughout the video and to have like this sec this combination of it looks like FBI officials uh Gnome security DHS take him out into the hallway throw him down onto the ground and handcuff him he was not presenting any threat he was not presenting any physical threat he said that he was a US senator and and I this this is just when you combine it with what we've seen from this DHS you know with the masked agents going around California it's probably one of the things is going to ask about there there have been tons of examples now of video we're seeing of mass agents going up to people demanding they have papers racially profiling them if they bullying them if they do not have papers pushing them around without like presenting any identification uh you know when you combine that type of behavior with you combine what I talked about with Andrew Weissman um about how uh Cash Patel is now suing critics of him they're trying to bully critics this is an administration that is across the board you know trying to use authoritarian thug tactics to silence legitimate criticism and like that is it is not an exaggeration to say that is the behavior of an author of an an aspiring authoritarian regime like the the fundamental right of America in the number one amendment in the constitution is that people have a right to express themselves certainly if anyone has a right to express themselves it would be a United States senator at an open press conference who's concerned about how his constituents are being treated by an unelected federal official in in Christ a federal building it's he's a United States senator it's it's unreal um it's kind of leaves you a little bit speechless uh it it gives truth to the lie that these people care about the First Amendment no it's [ __ ] you know I was kind of reminded of this um for people who are out there being like "Oh well he deserves this is a small little anecdote but early on during the Doge cut days a number of Democratic lawmakers showed up at the Department of Education and they held a press conference outside the Department of Education to talk about the Doge cuts." And what happened linda McMahon showed up and crashed their press conference okay and that just happens it's It was It was clever it was But they she exercised her free speech people moved on goes back to the old days when I was campaigning against Mitt Romney in a primary when I was on John McCain's side we were trying to hit him for being a flip-flopper we sent a dolphin to his press conference who was making dolphin noises and shouting at him during the press conference you don't get arrested that is again that democracy a country that is democratic that has free speech it is messy sometimes you have to deal with people who are offering counter views to you when you're speaking when you're speaking in public and the idea that this that he should be physically assaulted and handcuffed and handcuffed right it's crazy now I I'm again this is a dynamic situation i'm speaking right now almost 300 p.m uh so just keep that in mind when you're listening to this padilla's office has put out a statement saying that he is uh no longer um in custody he's currently he's not currently detained uh the office says we are working to get additional information they say quote "Senator Padilla is currently in Los Angeles exercising his duty to perform congressional oversight of the federal government's operations in Los Angeles and across California he was in the federal building to receive a briefing with General Guot and was listening to Secretary Nom's press conference he tried to ask the Secretary question was forcibly removed by federal agents forced to the ground and handcuffed chuck Schumer went on the floor to denounce this we can play that video now mr president I just saw something that sickened my stomach the manhandling of a United States senator we need immediate answers to what the hell went on i yield the floor and then on top of that we have Lisa Marowski among others saying she found this is a Republican saying she found the footage shocking quote "It's not the America I know." Maybe but it is the America we have it's the America we becoming yeah right and I get you get in this point right like the push back to this there are a couple push backs I want to talk about from the MAGA side um and ranging in various degrees of bad faith but one of it is that like look people voted for this people voted for this type of immigration enforcement and you know so that so this is what they're going to get mass deportations and and if you just even try to take that at face level at face value well yeah but you know people in California also voted for Alex Padilla they voted for Gavin Newsome they voted for Karen Bass right and so these elected officials also have the not only right but duty to represent the constituents that elected them and the idea that they can be silenced bullied pushed around that the government can go over Gavin Newsome's head and federalize the California National Guard based on nonsense and then and then physically push a senator to the ground go around the request of the mayor like that is not the democratic process sorry you can't just say "Oh Americans voted for this." No not true actually Americans did not vote for this let me just point Let me just quickly point out it's not just Padilla they brought charges against a sitting member of Congress for interrupting uh you know ICE operations in New Jersey they went after a mayor a sitting mayor i mean that's any one of these would be insane and they are insane but taken together you having a real pattern here yeah and they went and again just to show the ridiculousness of this all of them during their testimony in front of Congress Gnome Patel etc We're all talking about the politization of the government that happened under Biden how they were going to depoliticize and like here we go way beyond anything that was ever even imaginable during the Biden years uh then you have others who are basically for this charlie Kirk uh tweeted "No one is above the law it's about time these Democrats stop acting like they are." What law did he break i I asked exactly that very question to Charlie Kirk he has not replied yet some people are replying with he was creating a disturbance disorderly conduct disorderly [ __ ] disorderly conducting snowflakes that's snowflake [ __ ] yeah what a bunch of snowflakes we're going to arrest someone now for a senator for criticizing for for shouting a question at the DHS secretary it's like of all people Charlie Kirk whose like group turning point go say like they do this stuff all the time like go after Democratic politicians and and troll them and shout them down like trolling is now going to be illegal in this country uh you point you were sending me a couple of other uh spokes are going even further i mean this one really was crazy but um Jeremy Redford who is he used to be a spokesman for um the Santis now he's a spokesman for the attorney general of Florida hinting that they he thinks Padilla should be deported padilla's from the valley man he's not he's not a foreigner i don't know what the hell that's talking about but it's it's grotesque just because he's got a Hispanic last name he's suggesting he should be deported i mean what the hell is that i mean I hope this is a wakeup call to all you know I mean Donald Trump improved a lot with Latino voters and not I'm not out here saying that this is deserved or anything obviously it's not but like everyone should just be aware of what's happening like it should be blunt about it there is a racially profiling campaign that's happening from this administration that they're doing unapologetically and they're going to they're specifically targeting workplaces in Los Angeles for deportation where there are a lot of Hispanic workers and and the rhetoric coming from the administration about you know about who is you know who they're going for and who you know they think might be a suspect and it is all and there are there are non-Hispanics that are getting sucked up in the drag net but the but the racial profiling element from this from the top all the way down to now spokespeople for for Republican political officials is just blatant it's crazy um the flip side of this is and I don't I'm not trying to politicize it but you know Democrats have been looking for confrontation is one way to put it but someone to just get up and say enough's enough i need answers to these questions i don't think they anticipated a sitting US senator getting handcuffed as part of this but you can see I mean you could feel it tangibly like the frustration and the anger and the emotion uh that is percolating now among Democrats over this specifically but more broadly what's happening in California it is it's like you watch something actually take hold i'm seeing it right in front of me no Democratic voters want it and and they should we all people that oppose what this administration should is doing it's right but it is righteous and so like extreme circumstances call for extreme countermeasures so this isn't a call to be clownish and to try to show off to get attention for yourself it's not that it's just like there is a lot to be outraged about right now if you were a senator again representing California and your constituents are being targeted and molested unfairly by this administration by masked thugs you have a right to get your questions answered and and doing so in a manner that's not just oh well I put out a press release and the gentle lady from South Dakota I hope that you would consider if they're going to act like [ __ ] thugs then they need to be confronted and so good on Alex Padilla for doing it all right I'm going to read you a statement that was issued by Trisha Mclofflin oh my god she is I know Trisha DHS spokesperson she tweets this senator Padilla chose disrespectful political theater and interrupted a live press conference without identifying himself or having a Senate security pin on as he lunged towards Secretary Gnome mr brady was told repeatedly to back away and did not comply with the officer's repeated commands secret Service thought he was an attacker and officers acted appropriately senator Secretary Nome met with Senator Padilla after and held a 15inute meeting first of all [ __ ] [ __ ] i mean we can see the [ __ ] video like what is she is she crazy we can see the video he says "I'm a United States senator i'm a United He says it i'm Senator Alex Padilla i have questions for the secretary." Like what is she talking about we can all see the video yeah he says it over and over again this idea that And like I hate the the whole This other thing the MAGA snowflake [ __ ] he was disrespectful disrespectful like oh they care so much about being respectful like that is a that is the high got to uphold the norms yeah it's like they've got to be they need to be respected and because you know the whole thing is such phony baloney elsa did not comply with the officers report he was out in the hallway he was on the hallway when they pushed him to the ground and cuffed him what is she talking about he did comply with the requests like he was they said to get down on the ground he was get down on the ground it's like these these statements they ask you not to like believe what you see with your own eyes it's madness well we'll see where this ends up i mean it's going to be a very live live story um I'm sure we're going to be talking about it a lot more we wanted to get a you quick cut video uh on the news i'm sure Tim and I will be back talking about it a little bit more but thank you for subscribing to the feed um definitely tell your friends about the feed because we do quick hitting videos like this we'll talk to you later
Live: Gov. Newsom speaks after judge sides with California against Trump administration NBCLA Streamed live 61 minutes ago
Gov. Newsom speaks after judge rules to temporarily block the Trump administration from activating National Guard troops in Los Angeles.
A federal judge on Thursday granted California Gov. Gavin Newsom's request to block the Trump administration from federalizing the National Guard for deployment to Los Angeles amid protests over federal immigration raids. The administration filed a notice of appeal soon after the ruling.
The big picture: The administration has activated some 4,000 National Guard members and mobilized hundreds of Marines in response to LA protests sparked by Immigration and Customs Enforcement (ICE) raids.
• Newsom has slammed the move as "purposefully inflammatory" and has been locked in a tense standoff with President Trump for days.
• The unrest has spread, with demonstrations denouncing the administration's mass deportation push popping up coast to coast.
Driving the news: U.S. District Judge Charles Breyer said in a Thursday evening order in response to Newsom's request for emergency relief that the president did not follow congressionally mandated procedures by federalizing the California National Guard.
• "His actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution," wrote the Clinton-appointed judge.
• "He must therefore return control of the California National Guard to the Governor of the State of California forthwith."
Catch up quick: On June 10, Newsom requested a temporary restraining order to "prevent the use of federalized National Guard and active duty Marines for law enforcement purposes on the streets of a civilian city."
• The request did not seek to bar the Guard from protecting federal buildings or property but rather sought "narrow relief tailored to avoid irreparable harm to our communities and the rule of law."
• Breyer did not initially intervene in that request and granted the Trump administration more time to respond to the governor.
What they're saying: "The court just confirmed what we all know — the military belongs on the battlefield, not on our city streets," Newsom said on Thursday evening X.
• "This win is not just for California, but the nation. It's a check on a man whose authoritarian tendencies are increasing by the day," he added, as he called on Trump to immediately end the "illegal militarization" of LA. "History is watching."
The other side: The Justice Department in a Wednesday filing argued that Trump had "every right under the Constitution and by statute to call forth the National Guard and Marines to quell lawless violence directed against enforcement of federal law."
• The government emphasized that the National Guard and the Marines are not engaged in law enforcement and are rather protecting law enforcement.
• Representatives for the White House, Justice Department and the Department of Homeland Security did not immediately respond to Axios' request for comment on the ruling on Thursday evening.
GAVIN NEWSOM, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.
Case No. 25-cv-04870-CRB
ORDER GRANTING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER
On June 6, 2025, the federal government initiated immigration raids across the City of Los Angeles. Protests swiftly followed, and some individuals involved in those protests were unruly and even violent. State and local law enforcement responded. The following day, President Trump ordered that members of the California National Guard be federalized, and thereupon assumed control of those forces. At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.
I. BACKGROUND
A. California National Guard
The California Army National Guard and the California Air National Guard (together, the California National Guard) are part of the organized militia of the State of California and federally recognized units of the reserve components of the U.S. military. Eck Decl. (dkt. 8-3) ¶ 20. Governor Newsom is the commander-in-chief of the California National Guard when it is under state control. Id. ¶ 31; Cal. Const., art. V, § 7. President Trump is the commander-in-chief of the U.S. Armed Forces, including the National Guard when it is under federal control. U.S. Const. art. II § 2, cl. 1. A president can call the National Guard into federal service under Title 10 of the United States Code. Id. ¶ 27. That is what happened here.
California has the largest National Guard in the country, with 18,733 members, 12,212 of whom are currently available. Eck Decl. ¶¶ 28, 30. The California National Guard is “vital” in carrying out state functions such as “emergency and natural disaster response, cybersecurity, and drug interdiction.” Id. ¶ 31. For instance, 2,500 California National Guard members were activated in response to the destructive fires in Los Angeles County in January 2025. Id. ¶¶ 35–36. Some serve on Taskforce Rattlesnake, the state’s specialized fire combat unit. Id. ¶¶ 14, 39–40. Others serve on the Counterdrug Taskforce, which specializes in stopping fentanyl trafficking at the U.S.-Mexico border. Id. ¶¶ 15, 42–43.
B. ICE Actions and Public Protest
On June 6, 2025, Immigration and Customs Enforcement began carrying out immigration raids in Los Angeles. Olmstead Decl. (dkt. 8-2) ¶ 6. The Associated Press reported that ICE executed search warrants at multiple locations across Los Angeles. Espíritu Decl. (dkt. 8-1) Ex. F (“Federal immigration authorities have been ramping up arrests across the country to fulfill President Donald Trump’s promise of mass deportations.”). Los Angeles Police Chief Jim McDonnell stated that “federal officials did not brief his department, which made it difficult to respond to the mobs of people who began to protest.” See McPhee, LAPD Chief Jim McDonnell Says, ‘Violence I Have Seen Is Disgusting,’ Recounting Attacks on Cops, L.A. Mag. (June 8, 2025), https://perma.cc/G24N-PZHE. ICE reportedly targeted “several locations in downtown L.A. and its immediate surroundings” that are “known to have significant migrant populations and labour-intensive industries.” Espíritu Decl. Ex. G. These included two Home Depot stores, a donut store, and a clothing wholesaler. Id. Ultimately, between 70 and 80 people were detained, and 44 arrested. Espíritu Decl. Exs. G, H.
State and city leaders expressed concern and disapproval. Governor Newsom reportedly stated that the “[c]ontinued chaotic federal sweeps … to meet an arbitrary arrest quota are as reckless as they are cruel.” Espíritu Decl. Ex. D. Mayor Karen Bass told reporters that she received no notice that the raids were to be conducted, and that the raids “sow[] a sense of chaos in our city, and a sense of terror.” Id. And Los Angeles County Supervisor Janice Hahn reportedly said: “They aren’t targeting violent criminals—they are sweeping up hardworking people in our communities just trying to provide for their families. These agents are armed to the teeth and it is clear their goal is to make people afraid and it’s working.” Id.
Some members of the public gathered in protest. A group of people assembled at the site of an ICE operation in Los Angeles’s Garment District and tried to prevent ICE from leaving. Santacruz Decl. (dkt. 22-1) ¶ 7; Espíritu Decl. Ex. D. Another one of the primary protests on June 6 took place at the Metropolitan Detention Center. Olmstead Decl. ¶ 6. The protests were explicitly about the immigration raids. See Espíritu Decl. Ex. D (“Friday evening, protesters marched in downtown L.A. condemning Friday’s immigration raids.”). The Governor’s Office of Emergency Services, which was monitoring the protests, was in regular communication with representatives of the Los Angeles Police Department and the Los Angeles County Sheriff’s Department. Olmstead Decl. ¶ 6. Both stated that they did not need additional resources, and LAPD reassigned additional officers to the area. Id.
That evening, protesters reportedly marched in downtown Los Angeles. Espíritu Decl. Ex. D. There were about 800 protesters at two sites. Santacruz Decl. ¶¶ 9, 10. Some protesters threw “concrete chunks, bottles of liquid, and other objects at Federal Protective Service officers guarding a parking lot gate; some protesters attempted “to use large rolling commercial dumpsters as a battering ram.” Id. ¶ 11. Officers protected the gate entrance with pepper balls and other nonlethal force, until LAPD arrived and pushed the crowd away. Id. ¶ 13. Some of the protesters used “chairs, dumpsters, and other items as weapons.” Id. ¶ 14. LAPD declared an “unlawful assembly,” and while some individuals resisted, the protesters departed by 11:00 p.m. Id. ¶¶ 16, 17. Two federal buildings were vandalized and sustained minor damage. Id. ¶ 17.
On June 7, both the ICE operations and responsive protests continued. Olmstead Decl. ¶ 7. In addition to the protest at the Metropolitan Detention Center, protests also emerged in Paramount and Compton. Id. LASD provided 200 deputies to respond to the Paramount and Compton protests, including a team with specialized training in handling civil unrest. Id. Customs and Border Protection officers arrived from San Diego to assist with immigration enforcement operations. Santacruz Decl. ¶ 18.
During the evening hours of June 7, the protest at the Metropolitan Detention Center was “fairly in control,” with some protesters targeting the building. Olmstead Decl. ¶ 9. Federal officers pushed protesters away while LAPD officers moved in front and declared an unlawful assembly; by 2:15 a.m., “most of the protestors had left the area.” Id. In Paramount and Compton, there were about 300 to 400 protesters present. Id. ¶ 10. Some protesters threw rocks and other objects (including a Molotov cocktail), burned a vehicle, looted a gas station, and vandalized property. Id. ¶ 9. There was an extended clash between some protesters and officers, with a crowd boxing in the officers and throwing fireworks, rocks, and mangos at them, and “using shopping carts to barricade the street.” Santacruz Decl. ¶ 20. One officer was briefly trapped inside her law enforcement vehicle when a crowd surrounded it, shook it, and threw stones at it. Id. A DHS fence was damaged, and three government vehicles were damaged. Id. ¶ 21. Local law enforcement brought the situation under control by 4:00 a.m. and LASD was able to demobilize its teams. Olmstead Decl. ¶ 9. About 11 people were arrested for engaging in unlawful behavior at the protests that night. Id. ¶ 10.
C. Federalizing of National Guard and Continued Protest
President Trump intervened in the response to the protests on the evening of June 7, issuing a memorandum to the Secretary of Defense, Attorney General, and Secretary of Homeland Security. See June 7 Memo (Espíritu Decl. Ex. O at 108–09). Although it did not name California, Los Angeles, or any other geographic area, the memo asserted that “[n]umerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by [ICE] and other United States Government personnel.” Id. It continued: “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.” Id. (emphasis added). The memo explained that due to “these incidents and credible threats of continued violence,” President Trump was calling
into Federal service members and units of the National Guard under 10 U.S.C. [§] 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.
Id. President Trump further directed Secretary Hegseth “to coordinate with the Governors of the States and the National Guard Bureau in identifying and ordering into Federal service the appropriate members and units of the National Guard under this authority,” calling for “at least 2,000” National Guard personnel to be on duty “for 60 days or at the discretion of” Secretary Hegseth. Id. (emphasis added). Finally, the memo provided that Secretary Hegseth could “employ any other members of the regular Armed Forces as necessary.” Id.
Secretary Hegseth issued an order that same night, attaching the June 7 Memo, and announcing that 2,000 members of the California National Guard were being “called into Federal service effective immediately for a period of 60 days.” See June 7 DOD Order (Espíritu Decl. Ex. P at 111). The top of the order read:
MEMORANDUM FOR ADJUTANT GENERAL OF THE CALIFORNIA NATIONAL GUARD THROUGH: THE GOVERNOR OF CALIFORNIA
Id. The order further stated that the Commander of U.S. Northern Command would control the 2,000 National Guard members. Id.
Defendants did not notify Governor Newsom of their intent to federalize the California National Guard prior to issuing the June 7 Memo or the June 7 DOD Order. Espíritu Decl. Ex. K (June 8 letter from Sapp to Secretary Hegseth).1 Governor Newsom only learned of the June 7 DOD Order from the Adjutant General after the Adjutant General received it. Id. The Adjutant General relinquished command to the commander of U.S. Northern Command, and thereafter the commander of U.S. Northern Command, not the Governor, has issued all orders to the federalized National Guard. Espíritu Decl. Ex. J. Responding to these events, Governor Newsom issued a statement that “[t]he federal government is taking over the California National Guard and deploying 2,000 soldiers in Los Angeles—not because there is a shortage of law enforcement, but because they want a spectacle.” Espíritu Decl. Ex. Q. On June 8, the New York Times reported that President Trump wrote on social media that he had directed his cabinet officials to “take any actions necessary to ‘liberate Los Angeles from the Migrant Invasion,’” and said, “we’re going to have troops everywhere.” Espíritu Decl. Ex. M.
The National Guard troops arrived in Los Angeles on June 8, but “it was not clear what role they were to play or what orders they were provided,” and “there were concerns” that they “did not have the equipment or training necessary to handle the situation.” Espíritu Decl. Ex. R; Olmstead Decl. ¶ 11. Initially that morning, the city was quiet. Espíritu Decl. Ex. R. That afternoon, protesters increased to about 3,500, particularly near the Metropolitan Detention Center, where the National Guard was deployed. Olmstead Decl. ¶ 12. “[M]any of the protestors appeared angry that the National Guard had been federalized and was now present in their city.” Id.; Espíritu Decl. Ex. M (New York Times stating that “aggressive federal response … in turn sparked new protests across the city.”). “The presence of the National Guard seemed to only inflame the protesters further.” Olmstead Decl. ¶ 12.2
LAPD, LASD, and the California Highway Patrol deployed to the protest area as protesters, blocked Highway 101. Id. ¶ 13. Several blocks away, individuals reportedly vandalized Waymo driverless vehicles. Espíritu Decl. Ex. R. Some people “moved through downtown, setting off commercial-grade fireworks toward federal officers and throwing objects at passing law enforcement vehicles.” Santacruz Decl. ¶ 26. Individuals “lit fires in dumpsters and trash bins[,] looted at least one store,” and vandalized buildings. Id. At least 42 people were arrested in connection with their conduct during the June 8 protests. Olmstead Decl. ¶ 14.
That same day, Governor Newsom’s office wrote to Secretary Hegseth, stating that the June 7 DOD Order did not comply with the law or even with President Trump’s June 7 Memo. Espíritu Decl. Ex. K. The letter argued that “local law enforcement resources are sufficient to maintain order” and that deploying the National Guard without adequate training or orders “risks seriously escalating the situation.” Id. Asserting that the deployment represented “a serious breach of state sovereignty that seems intentionally designed to inflame the situation,” the letter asked Secretary Hegseth to rescind the June 7 DOD Order. Id.
Instead, on June 9, Secretary Hegseth posted on social media that “approximately 700 active-duty U.S. Marines from Camp Pendleton are being deployed to Los Angeles to restore order” and “defend federal law enforcement officers.” Eck Decl. ¶ 18. Secretary Hegseth then issued a second order federalizing another 2,000 National Guard members for 60 days. June 9 DOD Order (Espíritu Decl. Ex. P at 114). Defendants did not consult with Governor Newsom in advance of the June 9 DOD Order. Espíritu Decl. Ex. S. On June 9, a thousand demonstrators gathered, and one person drove by firing paintballs at the FPS inspectors. Santacruz Decl. ¶ 28. The crowd clashed with LAPD officers, injuring five. Id. ¶ 31.
Over the course of the protests, state and local law enforcement arrests increased by the day, with over 400 individuals ultimately being arrested in total. Olmstead Supp. Decl. (dkt. 39-3) ¶ 14.3 The parties have not introduced any evidence of any protesters carrying firearms, and there is no evidence of any organized (as opposed to sporadic) violence.
D. Procedural History
Plaintiffs Newsom and the State of California bring suit against Defendants Trump, Hegseth, and the DOD, arguing that Defendants’ actions exceeded the scope of their authority. See Compl. (dkt. 1). The complaint includes causes of action for: (1) ultra vires, against all Defendants; (2) violation of the Tenth Amendment of the U.S. Constitution, against all Defendants; and (3) violation of the Administrative Procedures Act, against Secretary Hegseth and the Department of Defense. Id. Plaintiffs seek declaratory and injunctive relief. Id. ¶ 107. On June 10, Plaintiffs filed a Motion for a TRO, asking the Court to rein in the President’s use of military force in Los Angeles. Mot. (dkt. 8); Reply (dkt. 39). Defendants have opposed the motion, see Opp., and the Court held a hearing on June 12.
II. LEGAL STANDARD
A party seeking a temporary restraining order must establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (standard for temporary restraining order the same as for preliminary injunction). Alternatively, if the party demonstrates that “the balance of hardships tips sharply in [its] favor,” it need only show that “serious questions going to the merits were raised” and that the other two Winter elements are satisfied. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (citation omitted). Either way, success on the merits “is the most important Winter factor.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citation omitted). And when the government is a party, the last two Winter factors—the equities and the public interest—merge. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 668 (9th Cir. 2021).
III. DISCUSSION
The Court begins with the likelihood of success on the merits and, concluding that Plaintiffs are likely to succeed on at least some of their claims, then proceeds to the remaining Winter factors.
A. Likelihood of Success on the Merits
Plaintiffs bring three claims—an ultra vires claim, a Tenth Amendment claim, and an APA claim—but rely only on the first two for purposes of their motion for a temporary restraining order. Mot. at 7–11, 12–15 (ultra vires), 11–12 (Tenth Amendment). As part of their ultra vires claim, Plaintiffs contend that President Trump exceeded his lawful authority in three ways: First, although he cited 10 U.S.C. § 12406, which permits the President to federalize the National Guard, none of the three statutory conditions for invoking that statute were met. Second, he failed to comply with § 12406’s procedural requirement that any order issued under that statute “shall be issued through the governors of the States.” Third, he federalized the National Guard for an unlawful purpose in violation of the Posse Comitatus Act, 18 U.S.C. § 1385. The Court addresses these three arguments before turning to Plaintiffs’ Tenth Amendment claim.
1. Section 12406’s Conditions for Federalization
Through the Militia Act of 1903, Congress authorized the President to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary,” but only if
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.
Pub. L. No. 57-33, § 4, 32 Stat. 775, 776 (codified at 10 U.S.C. § 12406). Neither President Trump nor Secretary Hegseth specified by a citation to the statute which of these conditions justified federalizing the National Guard, though President Trump’s memorandum suggests that he relied on the second, the third, or both. June 7 Memo ( “To the extent that the protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”). Defendants confirm in their opposition brief and at the June 12 hearing that they rely on the second and third conditions.4 Opp. at 13–16.
Defendants also challenge whether the Court can even properly evaluate whether these conditions were met, asserting that § 12406 reserved this determination to the President’s discretion alone. Id. at 10–13. This presents a preliminary question for the Court to resolve before addressing the merits of the § 12406 conditions for federalizing the National Guard.
a. Justiciability
“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Thus, federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). The Supreme Court has recognized only limited exceptions to this general rule—one of which is known as the “political question” doctrine. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). This doctrine recognizes that certain “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury, 5 U.S. at 170. The political question doctrine is, however, a “narrow exception” to the general rule that “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’” Zivotofsky, 566 U.S. at 195 (quoting Cohens, 19 U.S. at 404).
Baker v. Carr is the canonical case examining this doctrine. 369 U.S. 186 (1962). In Baker, the Court proposed six ways in which a case might present a political question and thus be unfit for judicial review: (1) if there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department,” (2) if there is “a lack of judicially discoverable and manageable standards for resolving it,” (3) if it would be impossible to decide the issue “without an initial policy determination of a kind clearly for nonjudicial discretion,” (4) if it would be impossible for a court to “undertak[e] independent resolution without expressing lack of the respect due coordinate branches of government,” (5) if there is “an unusual need for unquestioning adherence to a political decision already made,” or (6) if there is “potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. at 217. “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id.
Defendants contend that the third Baker formulation—the existence of a policy question “clearly for nonjudicial discretion”—applies here to render nonjusticiable the question whether § 12406’s conditions for federalization of the National Guard were met. Opp. at 12–13. They rely on the language of § 12406 itself, stating that the statute gives sole and exclusive discretion to the President to determine whether “there is a rebellion or danger of a rebellion against the authority of the Government of the United States” or whether he “is unable with the regular forces to execute the laws of the United States.” Id. at 10–13. Indeed, at the hearing Defendants contended that the President could invoke § 12406 on no evidence whatsoever and remain immune from judicial review. And to be sure, when the “executive possesses a constitutional or legal discretion, … their acts are only politically examinable.” Marbury, 5 U.S. at 166; see also Dalton v. Specter, 511 U.S. 462, 477 (1994) (“Where a statute … commits decisionmaking to the discretion of the President, judicial review of the President’s decision is not available.”).
Defendants misconstrue the plain language of § 12406, however. The statute permits the President to federalize the National Guard “[w]henever” one of the three enumerated conditions are met, not whenever he determines that one of them is met. 10 U.S.C. § 12406. Defendants point to the language providing that “the President may call into Federal service members and units of the National Guard of any state in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.” Id. (emphasis added). But their argument puts the cart before the horse. For the President to exercise his discretion (as to how many National Guard members or units to federalize), there must first be an invasion, rebellion, or inability to execute the laws. Consider, as an analogy, 5 U.S.C. § 3345, which applies “[i]f an officer of an Executive agency … whose appointment to office is required to be made by the President … dies, resigns, or is unable to perform the functions and duties of the office.” Id. § 3345(a). The President’s discretion in what to do next, see id. § 3345(a)(2)–(3), does not mean that the President can unilaterally and without judicial review declare that a vacancy exists in order to fill it. That is classic ipse dixit.
Defendants assert that, despite the plain language of the statute, the Supreme Court’s 1827 Martin v. Mott decision compels a different outcome. 25 U.S. (12 Wheat.) 19 (1827). Martin arose from a militiaman’s refusal to enter federal service to fight in the War of 1812 after President Madison had ordered the New York militia into federal service pursuant to a predecessor statute to the Militia Act of 1903. See id. at 28. That statute provided that “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion.” Act of Feb. 28, 1795, ch. 36, 1 Stat. 424, 424. Martin thus presented the question: “Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?” 25 U.S. at 29–30. The Supreme Court held “that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Id. at 30. It stated that the President “is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts.” Id. at 31. And so the Court concluded that “[w]henever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.” Id. at 31–32.
In J.A.V. v. Trump, a challenge to President Trump’s actions under the Alien Enemies Act, the federal government relied on Martin to make a similar argument to the one they make here. --- F. Supp. 3d ----, 2025 WL 1257450 (S.D. Tex. May 1, 2025). The plaintiffs in that case were Venezuelan citizens who alleged that President Trump’s removal of Venezuelan citizens had exceeded the terms of the AEA, which allows the President, in his discretion, to remove certain noncitizens when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” Id. at *2, 5; 50 U.S.C. § 21; see also Ludecke v. Watkins, 335 U.S. 160, 164 (1948) (the AEA “confers on the president very great discretionary powers”). President Trump argued there, as he does here, that the political question doctrine shielded his attempt to remove Venezuelan citizens from the United States because “whether the AEA’s preconditions are satisfied is a political question committed to the President’s discretion.” J.A.V., 2025 WL 1257450, at *7. And he cited Martin for the same proposition as he does here. See Opp. to Mot. for Prelim. Inj. at 12, J.A.V., No. 25-cv-72 (filed Apr. 23, 2025), ECF No. 45.
Judge Rodriguez rejected President Trump’s attempt to preclude judicial review. He emphasized that “‘questions of interpretation’ fall within the Judiciary’s responsibility” and that this can involve “analyzing whether a government official has impermissibly crossed statutory boundaries” by “determining the meaning of statutory terms and gauging the government’s actions against those determined parameters.” J.A.V., 2025 WL 1257450, at *9. Accordingly, he went on to define “invasion” and “predatory incursion” before concluding that President Trump had not adequately established the existence of either. J.A.V., 2025 WL 1257450, at *14–18.
The Court agrees with Judge Rodriguez’s thoughtful reasoning in J.A.V. and finds it applicable here. To start, J.A.V. is in line with other recent decisions rebuffing efforts from Defendants to skirt judicial review of their alleged statutory violations. See, e.g., J.G.G. v. Trump, --- F. Supp. 3d ----, 2025 WL 890401, at *9 (D.D.C. 2025) (“Simply because a legal claim implicates foreign affairs or national security, however, does not mean that the political-question doctrine places it ‘beyond judicial cognizance.’” (citation omitted)). It is also consistent with a long line of precedent recognizing the judiciary’s role in interpreting statutory text. See, e.g., Zivotofsky, 566 U.S. at 196 (determining whether federal officials’ “interpretation of [a] statute is correct” is “a familiar judicial exercise”); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (“[O]ne of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”); El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 842 (D.C. Cir. 2010) (“[T]hat a case may involve the conduct of the nation’s foreign affairs does not necessarily prevent a court from determining whether the Executive has exceeded the scope of prescribed statutory authority or failed to obey the prohibition of a statute or treaty.”); Stark v. Wickard, 321 U.S. 288, 310 (1944) (“The responsibility of determining the limits of statutory grants of authority … is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.”). Finally, even though the AEA and § 12406 are different statutes, they both grant the President discretion in some respects while still containing important statutory conditions that must be met for that discretion to be exercised. See Ludecke, 335 U.S. at 164, 171. Accordingly, the Court concludes that § 12406 does not preclude judicial review of whether a rebellion has occurred or is in danger of occurring, or whether the President is unable to execute federal law.
To be sure, based on longstanding deference to the President on matters of national security and foreign policy, courts cannot second-guess a President’s factual determinations in support of a proclamation under the AEA that an invasion or predatory incursion had occurred or was threatened. J.A.V., 2025 WL 1257450, at *10 (citing Holder v. Humanitarian L. Project, 561 U.S. 1, 34 (2010), Chi. & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948), and Martin, 25 U.S. at 315); see also Trump v. Hawaii, 585 U.S. 667, 708 (2018) (“[T]he Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs.’” (quoting Humanitarian L. Project, 561 U.S. at 33–34)). As discussed below, the Court here—like Judge Rodriguez in J.A.V.—does not question Defendants’ factual assertions. The Court considers only whether those factual assertions, if true, constitute a rebellion or make the President unable to execute federal law.
That said, the Court points out that this case is not one involving the kind of foreign policy or national security questions that traditionally are left to the President. It instead implicates the President’s domestic use of military force, a matter on which the courts can certainly weigh in. As the Supreme Court stated over fifty years ago:
The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities … reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.
Laird v. Tatum, 408 U.S. 1, 15–16 (1972) (emphasis added).6 Between the unique concerns raised by federal military intrusion into civilian affairs and the fact that federal officials are not uniquely positioned to ascertain what is happening on the ground (as compared to, say, state and local officials), the Court is not convinced that the judiciary cannot question presidential assertions about domestic activities leading to military action. See Myers v. United States, 272 U.S. 52, 177 (Holmes, J., dissenting) (“The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.”).
At bottom, § 12406 does not reserve to sole presidential discretion the determination of whether a rebellion has or is in danger of occurring or whether the President is unable to execute federal law. Accordingly, the Court now turns to the questions whether (1) “there [was] a rebellion or danger of a rebellion against the authority of the Government of the United States” or (2) “the President [was] unable with the regular forces to execute the laws of the United States.”
b. Rebellion
Section 12406 does not define the term “rebellion,” so the Court must interpret the term “consistent with [its] ‘ordinary meaning at the time Congress enacted the statute.’” Wis. Cent. Ltd. v. United States, 585 U.S. 274, 277 (2018) (cleaned up) (citation omitted). In this endeavor, the Court may turn to contemporary dictionary definitions for insight. See, e.g., id. (relying on dictionary definitions of “money”); Lackey v. Stinnie, 145 S. Ct. 659, 667 (2025) (relying on dictionary definitions of “prevailing party”); City of Los Angeles v. Barr, 941 F.3d 931, 940 (9th Cir. 2019) (“We give Congress’s words their ordinary and everyday meaning, and may consult dictionary definitions to ensure a plain interpretation.”). And where there are multiple dictionary definitions, the Court must apply “the contextually appropriate ordinary meaning, unless there is reason to think otherwise.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 70 (2012). Part of understanding context involves recognizing that statutes “should be construed so that effect is given to all [their] provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (citation omitted).
Both parties quote the definition of “rebellion” from the current edition of Black’s Law Dictionary, which is:
1. Open, organized, and armed resistance to an established government or ruler; esp., an organized attempt to change the government or leader of a country, usu. through violence.
2. Open resistance or opposition to an authority or tradition.
3. Hist. Disobedience of a legal command or summons.
Rebellion, Black’s Law Dictionary (12th ed. 2024). The Court’s own research has turned up the following definitions from the late 1800s and early 1900s—the relevant time period for understanding what Congress meant when they passed the Militia Act of 1903:
Deliberate, organized resistance, by force and arms, to the laws and operations of the government, committed by a subject.
Rebellion, Black’s Law Dictionary (1st ed. 1891).
1. An open and avowed renunciation of the authority of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt. Rebellion differs from insurrection and from mutiny. Insurrection may be a rising in opposition to a particular act or law, without a design to renounce wholly all subjection to the government. Insurrection may be, but is not necessarily, rebellion. Mutiny is an insurrection of soldiers or seamen against the authority of their officers.
2. Open resistance to lawful authority.
Rebellion, American Dictionary of the English Language (1900).
The taking up of arms traitorously against the government; the forcible opposition and resistance to the laws and process lawfully installed. If the rebellion amounts to treason, it is punished by the laws of the United States with death. If it be a mere resistance of process, it is generally punished by fine and imprisonment.
Rebellion, The Cyclopedic Dictionary of Law (1901).
1. The act of rebelling; open and avowed renunciation of the authority of the government to which one owes obedience, and resistance to its officers and laws, either by levying war, or by aiding others to so; an organized uprising of subjects for the purpose of coercing or overthrowing their lawful rule or government by force; revolt; insurrection.
2. Open resistance to, or defiance of, lawful authority.
Rebellion, Webster’s International Dictionary of the English Language (1903)
Where dictionaries list multiple definitions of “rebellion,” the first definition is the one demanded by context here. The first definition of “rebellion” in each dictionary is political in nature, as opposed to the more open-ended concept of “rebellion” that some dictionaries provide as a secondary definition. Indeed, dictionaries’ examples of the secondary usage of the term never apply in the political arena. See, e.g., Rebellion, Oxford English Dictionary (rev. 2009).7 And if there were any room for doubt, the language of § 12406 (requiring that the rebellion be “against the authority of the Government of the United States”) resolves the question in favor of the political definition of “rebellion.”
From there, the Court observes that the dictionary definitions from the turn of the century share several key characteristics. First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.
The protests in Los Angeles fall far short of “rebellion.” Defendants refer repeatedly to “violent rioters,” and “mobs,” see, e.g., Opp. at 1, and so the Court pauses to state that there can be no debate that most protesters demonstrated peacefully. Nonetheless, it is also beyond debate that some individuals used the protests as an excuse for violence and destruction. Some bad actors on June 6 threw “concrete chunks, bottles of liquid, and other objects at … officers,” Santacruz Decl. ¶ 11, and used “chairs, dumpsters, and other items as weapons,” id. ¶ 14. Others threw rocks and other objects, including a Molotov cocktail, on June 7. Olmstead Decl. ¶ 9. A “violent crowd” boxed in officers, threw fireworks, rocks, and mangos, and trapped one officer in her car, surrounding it, shaking it, and throwing stones at it. Santacruz Decl. Ex. 20. Some people on June 8 set off fireworks toward officers and threw objects at their vehicles. Santacruz Decl. ¶ 26. Someone on June 9 fired paintballs, id. ¶ 28, and a crowd injured five LAPD officers, id. ¶ 31.
Violence is necessary for a rebellion, but it is not sufficient. Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are “armed” in a 1903 sense—the Court is aware of no evidence in the record of actual firearms—there is little evidence of whether the violent protesters’ actions were “open or avowed.” Some presumably engaged violently with officers at close quarters in the daylight, while many others threw items under cover of darkness, protected by a crowd, identities concealed. Certainly, the peaceful protesters were “organized” to some degree, in that people knew generally knew where to go to participate in protests, see, e.g., Espíritu Decl. Ex. F (“Dozens of protesters gathered Friday evening outside a federal detention center in Los Angeles where lawyers said those arrested had been taken, chanting ‘set them free, let them stay!’”), but there is no evidence of organized, as apart from sporadic or impromptu, violence.8 Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole; the evidence is overwhelming that protesters gathered to protest a single issue—the immigration raids. See, e.g., Espíritu Decl. Ex. D (“Friday evening, protesters marched in downtown L.A. condemning Friday’s immigration raids.”). While Defendants have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole. The definition of rebellion is unmet.
Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion. The U.S. Reports are chock-full of language explaining the importance of individuals’ right to speak out against the government—even when doing so is uncomfortable, even when doing so is provocative, even when doing so causes inconvenience. See, e.g., Cohen v. California, 403 U.S. 15, 24–25 (1972) (“To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. … That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (“But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. … Any word spoken … that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.”); Cox v. Louisiana, 379 U.S. 536, 550–51 (rejecting the argument that a conviction for breach of the peace “should be sustained because of fear expressed by some [onlookers] that ‘violence was about to erupt’ because of the demonstration” and explaining “that constitutional rights may not be denied simply because of hostility to their assertion or exercise” (quoting Watson v. City of Memphis, 373 U.S. 526, 535 (1963))); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995) (“[T]he point of all speech protection [] is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”).
Applying these principles, courts have repeatedly reaffirmed that peaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment:
Moreover, although defendants make much of the fact that some demonstrators had allegedly violated the law, transforming the peaceful demonstration into a potentially disruptive one, the Supreme Court has expressly held that “the right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”
Jones v. Parmley, 465 F.3d 46, 57 (2d Cir. 2006) (cleaned up) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982)); see also Black Lives Matter Seattle-King Cnty. v. City of Seattle, 466 F. Supp. 3d 1206, 1213 (W.D. Wash. 2020) (finding that instances of protesters “launch[ing] objects at the police, ranging from rocks, bottles, fireworks, traffic cones, traffic flares, and more,” warranted only “ensur[ing] an adequate police presence” and “arrest[ing] those who engage in such conduct” rather than “suppress[ing] legitimate First Amendment conduct as a prophylactic measure” (quoting Collins v. Jordan, 110 F.3d 1363, 1372 (9th Cir. 1996))); Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1143 (D. Or. 2020) (“The fact that there are some violent offenders [] does not give the Federal Defendants carte blanche to attack journalists and legal observers and infringe their First Amendment rights.”). In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone. The idea that protesters can so quickly cross the line between protected conduct and “rebellion against the authority of the Government of the United States” is untenable and dangerous.
In a short paragraph, Defendants suggest that even if there was no rebellion that would justify federalizing the National Guard, there was still a “danger of a rebellion,” which would satisfy § 12406. Opp. at 16. This argument cannot withstand scrutiny. For starters, President Trump and Secretary Hegseth did not rely on a “danger of a rebellion” when issuing the memorandum and orders that federalized the National Guard under s 12406. See June 7 Memo; June 7 Order; June 9 Order.9 It is concerning, to say the least, to imagine that the federal executive could unilaterally exercise military force in a domestic context and then be allowed to backfill justifications for doing so, especially considering how wary courts are of after-the-fact justifications even where the stakes are lower. Cf. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not accept appellate counsel’s post hoc rationalizations for agency action.”). But in any event, Defendants do not even explain how the Court should determine whether there is a “danger of a rebellion.” “Rebellion” remains the operative word, and so any difference between a “rebellion” and a “danger of a rebellion” must be a difference of degree, not one of kind, with respect to the conduct of the alleged rebellion. With that in mind, Defendants have still not established a factual basis—again, even assuming their factual assertions to be correct—from which this Court can conclude that there is a danger of an organized, violent, armed uprising with the goal of overthrowing the lawful government of the United States.
Accordingly, Defendants do not satisfy the “rebellion” condition.
The third condition justifying the federalization of the National Guard, and the second advanced by Defendants, is that “the President [was] unable with the regular forces to execute the laws of the United States.” 10 U.S.C. § 12406; Opp. at 16–17. Defendants argue that they satisfy this condition because the Los Angeles protests threatened the safety of federal law enforcement personnel and interfered with the sites where ICE agents were enforcing alien removal laws. Opp. at 16. Defendants concede that ICE succeeded in arresting 44 people on June 6, but insist that “that limited success came with the risk of danger,” and that, had the protests not interfered with their operations, ICE “would have been able to carry out additional execution-of-the-laws activity.” Id.
Whether ICE could have detained more people in the absence of the protests is mere conjecture—Defendants provide no support for that assertion. Even assuming that Defendants are correct, however, the statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs. The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here. See Espíritu Decl. Exs. G, H (between 70 and 80 people were detained, and 44 arrested by ICE).
A classic example of a president being “unable with the regular forces to execute the laws”—indeed, the only other time in this Country’s history that a president has exclusively relied on § 12406 to federalize the National Guard—is the 1970 Postal Service Strike. See Opp. at 3 (drawing parallel to Postal Service Strike). Frustrated by low pay and poor working conditions, letter carriers voted on March 17, 1970 to strike, “threaten[ing] to bring the nation to a standstill.” Pope, Operation Graphic Hand, Smithsonian Nat’l Postal Museum (Mar. 23, 2017), https://postalmuseum.si.edu/operation -graphic-hand. By March 19, 1970, the mail service was “paralyzed,” the areas affected by the strike were growing, and “[ b]ills, dividend checks, income-tax returns, advertising brochures, credit cards, bank statements, sales flyers and personal mail lay uncollected in thousands of mail drops.” Bigart, Mail Service Here is Paralyzed by Postal System’s First Strike; Business Beginning to Feel Pinch, N.Y. Times (March 19, 1970), https://perma.cc/8VYB-CT32. On March 23, 1970, President Nixon declared a state of national emergency, ordering 25,000 personnel from the National Guard and other military branches into New York City “to get some mail moving.” Pope, supra; see also Bigart, Troops Welcomed as Mail Carriers, N.Y. Times (March 26, 1970), https://perma.cc/9A9N-PLHD; Exec. Order No. 11,519, 35 Fed. Reg. 5003 (Mar. 23, 1970). In that case, the mail system was incapacitated—the “regular forces” of letter carriers were on strike, and there was no other way to deliver the mail. In this case, the regular forces were and are still very much on duty. While ICE was not able to detain as many people as Defendants believe it could have, ICE was nonetheless able to execute the federal immigration laws. Indeed, ICE continues to carry out enforcement actions, executing those laws. See Espíritu Supp. Decl. (dkt. 39-1).
Accordingly, Defendants do not satisfy the “execution of the laws” condition.
2. Section 12406’s Procedural Requirements
Shortly after enacting the Militia Act of 1903, Congress amended the Act to require that any orders issued under § 12406 be issued “through the governor of the respective State … from which State … such troops may be called.” Militia Act of 1908, Pub. L. No. 60-145, § 3, 35 Stat. 399, 400. Section 12406 maintains this requirement: “Orders for these purposes shall be issued through the governors of the States … .”
Plaintiffs assert that President Trump failed to comply with this procedural requirement. They explain that Governor Newsom first learned that President Trump had called 2,000 of California’s National Guard members into federal service when California’s adjutant general forwarded him the June 7 DOD Order. See Espíritu Decl. Ex. K. From that point on, the commander of U.S. Northern Command, not the Governor, has issued all orders to the federalized National Guard. See Espíritu Decl. Ex. J. Similarly, Secretary Hegseth—not Governor Newsom—issued the June 9 order calling another 2,000 National Guard members into federal service. See Espíritu Decl. Ex. S.
Defendants assert that they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” Opp. at 17. True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders “shall be issued through the governors.” See Militia Act of 1908 § 3.
Defendants also argue that they complied with this requirement by sending the order to California’s adjutant general, who is tasked with issuing orders “in the name of the Governor.” Opp. at 17 (citing Cal. Mil. & Vet. Code § 163). But § 12406 specifically requires that orders federalizing the National Guard be issued “through the governor of the respective State,” not through a different state official (even one who can issue orders in the governor’s name). Indeed, when Congress has wanted to accommodate other state officials, it has done so expressly. For example, the Secretary of Defense may “order a member of a reserve component under his jurisdiction to active duty” except that members “may not be ordered to active duty … without the consent of the governor or other appropriate authority of the State concerned.” 10 U.S.C. § 12301(d) (emphasis added). And, in fact, § 12406 specifically provides for, “in the case of the District of Columbia,” orders to issue “through the commanding general of the National Guard of the District of Columbia.”
As a final point, Plaintiffs emphasize that Defendants did not provide Governor Newsom “an opportunity to provide or withhold his consent” or even “to consult … as to which service members and in what number should be called, and for what purposes and what period of time.” Mot. at 6. Defendants respond that § 12406 says nothing about obtaining a governor’s consent as a prerequisite for federalizing the National Guard. They are correct: section 12406 does not expressly require consent or approval of a governor to federalize that state’s National Guard, unlike similar statutes. Cf. 10 U.S.C. § 12301(d) (allowing the Secretary of Defense to “order a member of a reserve component under his jurisdiction to active duty” only with “the consent of the governor or other appropriate authority of the State concerned” (emphasis added)). That said, the June 7 Memo specifically ordered Secretary Hegseth to “coordinate with the Governors of the States” in the process of calling National Guard members to federal service, and Defendants do not claim to have done so. And in any case, the instant motion does not require the Court to determine whether or how § 12406 would operate if Secretary Hegseth had attempted to issue his orders through Governor Newsom and he had refused, as the President and Secretary circumvented the Governor (and thus, the procedure mandated by statute) from the outset.10
Regardless of whether Defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California’s National Guard, they did not issue their orders through him, and thus failed to comply with § 12406.
3. The Posse Comitatus Act
Plaintiffs’ third argument for why President Trump’s federalization of the National Guard exceeds his legal authority rests not on § 12406 but a different statute—the Posse Comitatus Act. First enacted in 1878, the Act prohibits military personnel from acting as a “posse comitatus,” or those “upon whom a sheriff could call for assistance in preventing any type of civil disorder.” United States v. Dreyer, 804 F.3d 1266, 1272 (9th Cir. 2015) (en banc) (citation omitted); Act of June 18, 1878, ch. 263, § 14, 20 Stat. 145, 152. The current version of the Act provides:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 U.S.C. § 1385. The Act reflects “‘a traditional and strong resistance of Americans to any military intrusion into civilian affairs’ that ‘has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military.’” Dreyer, 804 F.3d at 1272 (quoting Laird, 408 U.S. at 15).
The Posse Comitatus Act does not provide a private cause of action for damages. Black Lives Matter D.C. v. Trump, 544 F. Supp. 3d 15, 40 (D.D.C. 2021), aff’d sub nom. Buchanan v. Barr, 71 F.4th 1003 (D.C. Cir. 2023). But a plaintiff can still bring an ultra vires claim where, as Plaintiffs assert is the case here, an “agency has disregarded a specific and unambiguous statutory directive” or “has violated some specific command of a statute.” Id. at 41 (quoting Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988)). So if Plaintiffs are correct that President Trump and Secretary Hegseth’s federalization of the National Guard requires National Guard members to violate the Posse Comitatus Act, such a violation may provide a basis for their ultra vires claim.
At present, Plaintiffs contend that that the federalized National Guard troops and the Marines are “likely” to engage in “active involvement in the execution of the laws” in violation of the Posse Comitatus Act. See Mot. at 14; see also United States v. Khan, 35 F.3d 426, 431 (9th Cir. 1994) (quoting United States v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991)). They concede that there are a number of “supportive activities” in which the military can engage without running afoul of the Act, such as “maintenance and repair, transportation, training facilities, counterdrug and counter-transactional organized crime training, and surveillance support.” Mot. at 15. But Plaintiffs note that the federalized National Guard members will soon provide support during immigration enforcement operations and not only at federal buildings. Id. at 14 (citing Eck Decl. ¶ 19). And they suspect that such support will lead to the military “physically confront[ing], detain[ing], or search[ing] civilians,” which would constitute “executing civil laws.” Id. at 15–16. By the time they filed a reply brief, Plaintiffs asserted that “that threat has already become a reality,” because heavily armed National Guard members have been photographed standing near ICE agents during arrests. Reply (dkt. 38) at 11 (citing Espíritu Reply Decl. Exs. 2, 3). While the sight of an armed National Guard member no doubt has the potential to intimidate, Plaintiffs do not contend that National Guard members have in fact participated in any arrests.
Defendants respond that they have not violated the Act, and will not, as the June 7 Trump Memo and the June 7 and June 9 DOD Orders do not direct the federalized National Guard members to undertake activities that would violate the Act. See Opp. at 20–23; see also Knell Decl. (dkt. 22-4) ¶ 7 (“Since Saturday, June 7, federalized California National Guard personnel have conducted operations in Los Angeles strictly consistent with the directions of the President’s June 7 memorandum ... . They are protecting federal personnel performing official functions as well as property at designated locations.”). Of course, federal officials do not only act through official documents. President Trump reportedly wrote on social media that he had directed his cabinet officials to “take any actions necessary to ‘liberate Los Angeles from the Migrant Invasion,’” and said, “we’re going to have troops everywhere,” which certainly differs from the circumscribed role professed in the opposition brief. See Espíritu Decl. Ex. M; see also id. (“Tom Homan, the president’s border czar, suggested in an interview with NBC News that the administration would arrest anyone, including public officials, who interfered with immigration enforcement activities, which he said would continue in California and across the country.”); Fortinsky, Bondi Says California at ‘Good Point’: ‘We’re Not Scared to Go Further’, The Hill (June 11, 2025), https://perma.cc/G6HR-Q5M8 (quoting Attorney General Bondi: “We’re not scared to go further. We’re not frightened to do something else if we need to.”); Bowden, Noem Asks Hegseth to Exceed Trump’s Order and Force the Military to Arrest LA Citizens to Protect ICE Agents, The Independent (June 11, 2025) (“DHS chief Kristi Noem wants the US military directly involved in detaining and arresting protesters in Los Angeles, according to a letter sent to Defense Secretary Pete Hegseth.”), https://perma.cc/XG9F-EQF9.
The Court has already concluded that Defendants exceeded their lawful authority by violating 10 U.S.C. § 12406. The Court therefore need not reach this additional basis for Plaintiffs’ ultra vires claim at this early moment in the litigation. When the Court has before it Plaintiffs’ motion for a preliminary injunction, the record will be more complete as to any and all military activities, and whether, as Plaintiffs contend, the presence of troops near ICE agents during raids “in dense, urban communities” indeed results in “military forces [being] drawn into a variety of law enforcement activities, such as confronting, interrogating, detaining, or searching civilians perceived as security threats.” See Reply at 12. At that point—just a week from now—the parties will be free to make whatever arguments they wish in connection with the Posse Comitatus Act.
As of now, the Court only has counsel’s speculation of what might happen.
4. Tenth Amendment
Plaintiffs’ second claim in their complaint is that President Trump’s federalization of the National Guard “infringes on Governor Newsom’s role as Commander-in-Chief of the California National Guard and violates the State’s sovereign right to control and have available its National Guard in the absence of a lawful invocation of federal power.” Compl. ¶ 95. Plaintiffs’ argument rests in part on their assertion that President Trump acted ultra vires when he federalized the National Guard, see id. ¶ 100, and in part on their allegation that using National Guard members to “quell” or “prevent” protests is an exercise of police power, which is traditionally reserved to the states, see id. ¶¶ 96–98.
Focusing on the first piece of Plaintiffs’ argument, Defendants argue that the Tenth Amendment issue “is wholly derivative” of whether President Trump lawfully invoked § 12406. Opp. at 20. And because Defendants assert that they did not violate § 12406, they contend that there is no Tenth Amendment problem. Id.
Yet the Court has concluded that Defendants did violate § 12406, so their argument against Plaintiffs’ Tenth Amendment claim starts from a flawed premise. And even if that were not the case, Defendants fail to grapple with the second part of Plaintiffs’ Tenth Amendment claim—that their use of the National Guard and the Marines comes into conflict with California’s police power. It is well-established that the police power is one of the quintessential powers reserved to the states by the Tenth Amendment. E.g., United States v. Morrison, 529 U.S. 598, 618–19 (2000) (the reservation of police powers to the states is “one of the few principles that has been consistent since the [Constitution] was adopted”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203–04 (1824) (“No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation.”).
Although Defendants identify some stray violent incidents relating to the protests against ICE raids in Los Angeles, and from there boldly claim that state and local officials were “unable to bring rioters under control,” Opp. at 19–20, it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws. Quite the contrary, the Founders reserved that power, and others, to the states in the Tenth Amendment. See Patterson v. Kentucky, 97 U.S. 501, 504 (1878) (“Whether the policy thus pursued by the State is wise or unwise, it is not the province of th
e national authorities to determine. That belongs to each State, under its own sense of duty, and in view of the provisions of its own Constitution.”). Of course, federal authority extends to protecting legitimate federal interests, such as protecting federal personnel and facilities. Plaintiffs do not contest this. See Mot. at 2. As discussed above, the parties vigorously dispute whether the National Guard and the Marines were deployed to Los Angeles merely to protect federal personnel and facilities or to engage in more routine law enforcement, and the Court does not at this point reach any conclusion on this issue. But with respect to the Tenth Amendment claim, that is not the only consideration at play; there is also the fact that the federalization of 4,000 members of California’s National Guard necessarily prevents Governor Newsom, as the commander-in-chief of his state’s National Guard, from deploying them as needed. Had Defendants complied with the substantive and procedural requirements of § 12406, the federal interests reflected by that statute may well override Governor Newsom’s interest in retaining his National Guard members. But they did not. So whether or not the National Guard is exercising illegitimate federal police power in Los Angeles, the unlawful federalization of those members has interfered with the state’s legitimate police power, and thus it violates the Tenth Amendment.
For the above reasons, the Court concludes that Plaintiffs are likely to succeed on their Tenth Amendment claim.
B. Likelihood of Irreparable Harm
A party seeking preliminary injunctive relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original); see also Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 788 (7th Cir. 2011) (harm need not be certain to occur for injunctive relief to issue). The party must show a “sufficient causal connection” between the defendant’s conduct and their anticipated injury. “Irreparable harm is traditionally defined as harm for which there is no adequate legal remedy, such as an award of damages.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014).
Plaintiffs identify two types of harm that they claim to be likely to suffer in the absence of a temporary restraining order. First, they assert that there is a “very high risk of substantial civil unrest as a direct result of Defendants’ inflammatory and confrontational deployment of the military in a large, civilian population center.” Mot. at 16. Second, they contend that “Defendants’ unlawful federalization of 4,000 California National Guard members … diverts necessary state resources” from addressing serious problems facing California, such as wildfires and drug trafficking. Id. at 17–18. Defendants respond that these harms are “speculative” and “unsubstantiated.” Opp. at 26.
As for Plaintiffs’ first asserted harm, they have established that the continued presence of National Guard members and Marines in Los Angeles risks worsening, not improving, tensions on the ground. “The presence of the National Guard seemed only to inflame the protesters further.” Olmstead Decl. ¶ 12. Indeed, local law enforcement arrests jumped after the National Guard was deployed. Olmstead Supp. Decl. ¶ 14 (29 arrests on June 7, 41 arrests on June 8, 135 arrests on June 9, and 297 arrests on June 10). Defendants reiterate that civil unrest began before President Trump nationalized the National Guard, Opp. at 26, but that does not address Plaintiffs’ point that military presence in a civilian population center will worsen—and has worsened—the situation. And contrary to Defendants’ assertion, Plaintiffs have provided evidence backing up their concern, so it is not merely “hypothetical or possible.” Id. (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)).
In fact, it is common sense that President Trump and Secretary Hegseth’s unilateral exercise of federal power risks doing more harm than good. That is the very point that Justice Jackson made in his renowned concurrence in Youngstown Sheet & Tube Co. v. Sawyer:
The appeal, however, that we declare the existence of inherent powers [out of necessity] to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.
343 U.S. 579, 649–50 (1952) (Jackson, J., concurring) (emphasis added). Indeed, as Justice Jackson explained using examples from Weimar Germany, the French Republic, and World War II–era Great Britain, “emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.” Id. at 651–62. The issue presented in Youngstown (whether the President had implied constitutional authority to seize steel production plants during wartime) is admittedly different than that presented here (whether the President can federalize the National Guard over the objection of a state governor and without evidence of a rebellion). But Justice Jackson’s lesson remains poignant: federal overreach risks instigating the very behavior that the federal government fears. To put a finer point on it, the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention.
Turning now to Plaintiffs’ second asserted harm, Plaintiffs explain that California’s National Guard provides important state services, including by fighting wildfires, see Eck Decl. ¶¶ 35–36, 39–40, and drug trafficking enforcement, id. ¶¶ 42–43. Plaintiffs have also shown that National Guard members are often relied upon to their fullest capacity and, indeed, are likely to be so relied upon in 2025. Id. ¶¶ 32–33. Defendants respond that “Plaintiffs do not identify any type of exigency that they would direct these resources [to] that approaches the seriousness of the situation in Los Angeles.” Opp. at 27. But this overstates the violence in Los Angeles, which even by Defendants’ own account is limited to isolated actors and is primarily damage to property, and vastly understates the risks to property and human life caused by wildfires and trafficked drugs like fentanyl.11 Perhaps Defendants simply mean that there is not an immediate (as in today) need for California’s National Guard to be deployed, but even that is untrue. As Plaintiffs point out, as of June 11 there were 13 fires over 10 acres, including one that has consumed over 4,200 acres, burning in California. Eck Suppl. Decl. (dkt. 39-2) ¶ 10. And in any case, Defendants’ myopic focus on whether there is currently an exigency misunderstands the nature of emergencies, which are inherently unplanned for.
The Court finds that Plaintiffs have established that they are likely to suffer at least these two forms of harm in the absence of immediate injunctive relief.
C. Balance of Equities and Public Interest
A party seeking injunctive relief must also demonstrate that the balance of equities tips in its favor, and that an injunction is in the public interest. See Winter, 555 U.S. at 20. “‘In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’” Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). Because the government is a party, the last two Winter factors merge. E. Bay Sanctuary Covenant, 993 F.3d at 668.
The Court begins by observing that significant harm has already occurred. President Trump’s June 7 Memo marks the first time that a President has invoked § 12406, lawfully or not, against the wishes of a state governor. Regardless of the outcome of this case or any other, that alone threatens serious injury to the constitutional balance of power between the federal and state governments, and it sets a dangerous precedent for future domestic military activity.12 There is a reason that § 12406 and other similar statutes, such as the Insurrection Act, apply only in the narrowest and most extreme of circumstances—they jeopardize the delicate federalism that forms the basis of our very system of government. See Youngstown, 343 U.S. at 638 (Jackson, J., concurring) (“Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”). The continued deployment of federal troops in Los Angeles13 for 60 days would further entrench this harm.
Moreover, Plaintiffs have shown a likelihood of prevailing in their argument President Trump’s invocation of § 12406 was in fact not lawful, both exceeding the scope of his authority and violating the Tenth Amendment. When Plaintiffs establish “a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have also established that both the public interest and the balance of the equities favor [injunctive relief].” See Arizona Dream Act Coalition, 757 F.3d at 1069. Defendants are not harmed by “an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” See R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015). They may continue to enforce the immigration law, even without the assistance of the National Guard.
Defendants no doubt have an “interest in protecting federal agents and property.” See Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 831 (9th Cir. 2020). But they have no legitimate interest in doing so beyond the bounds of their authority. See R.I.L-R, 80 F. Supp. 3d at 191. Federal agents and property may actually well be served by de-militarization and a concurring de-escalation of the situation. Regardless, Plaintiffs and the citizens of Los Angeles face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions. As discussed above, Defendants’ actions also threaten to chill legitimate First Amendment expression.
Accordingly, the Court concludes that Plaintiffs have demonstrated that the balance of equities tips in their favor and that an injunction restraining the President’s use of military force in Los Angeles is in the public interest.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for a temporary restraining order.
• Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles.
• Defendants are DIRECTED to return control of the California National Guard to Governor Newsom.
• The Court further STAYS this order until noon on June 13, 2025.
• Plaintiffs are ORDERED to post a nominal bond of $100 within 24 hours. The bond shall be filed in the Clerk’s Office and be deposited into the registry of the Court. If said bond is not posted by the aforementioned date and time, this Order shall be dissolved.
• Defendants are further ORDERED TO SHOW CAUSE why a preliminary injunction should not issue. A hearing on this order to show cause will be held on June 20, 2025 at 10 a.m. Plaintiffs’ moving papers shall be filed no later than June 16, 2025; Defendants’ opposition shall be due no later than June 18, 2025, and Plaintiffs’ reply shall be due on June 19, 2025.
IT IS SO ORDERED.
Dated: June 12, 2025
CHARLES R. BREYER United States District Judge
_________________
Notes:
1 President Trump called Governor Newsom at some point and purportedly “directed him to take action to stop the violence.” Opp. at 5 & n.4 (citing Colton & Roberts, Trump brings receipts, Fox News (June 10, 2025), https://perma.cc/EX6D-V8Y5). No one suggests that President Trump mentioned the National Guard.
2 The LAPD Chief whom Defendants quote as stating that “things have gotten out of control,” see Opp. (dkt. 25) at 1, n.2, made that comment on the night of June 8.
3 LAPD made 29 arrests on June 7. Id. LAPD, LASD, and CHP made at least 41 arrests on June 8, 135 arrests on June 9, and 297 arrests on June 10. Id.
4 To be sure, nothing in the June 7 Memo, the June 7 DOD Order, or the June 9 DOD Order remotely suggested that the United States or California had been “invaded or [was] in danger of invasion by a foreign nation.” 10 U.S.C. § 12406 (emphasis added).
5 Martin, like other cases that Defendants cite (for example, California v. United States), involved issues of foreign policy and national security not presented in this case. See Martin, 25 U.S. at 31 (“[T]he evidence upon which the President might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment.”); California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) (“In this case, the issue of protection of the States from invasion implicates foreign policy concerns which have been constitutionally committed to the political branches.”).
6 In Laird, the plaintiffs challenged federal military action taken pursuant to the Insurrection Act, which grants certain presidential discretion. Id. at 3 & n.2. The Court did not reject the lawsuit on justiciability grounds, though, but for lack of any injury to the plaintiffs. Id. at 13. Indeed, as quoted above, the Court strongly insisted that judicial review remained available for any claim “of judicially cognizable injury.” Id. at 16.
7 The Oxford English Dictionary’s secondary definition of “rebellion” is “[o]pen or determined defiance of or resistance to any authority, controlling power, or convention; an instance of this.” Examples of this usage include spiritual rebellion (“The event of this evening has reconciled me to God and humanity! I had risen in angry rebellion against providence.” (quoting Brontë, Wuthering Heights, 87 (New York, Harper & Bros. 1858) (1847))) and familial rebellion (“He had forgotten that he had it, but told me when he saw it that he remembered it as the first thing that made him begin to rise against his father in a rebellion which he recognized as righteous.” (quoting Butler, The Way of All Flesh, 178 (New York, E.P. Dutton & Co. 1917) (1903))).
8 To the contrary, the record suggests that the violent individuals might not have been bona fide protesters. See McPhee, supra (“McDonnell said of the most violent protestors … ‘many come in from other places just to hurt people and cause havoc.’”).
9 At the hearing, Defendants contended that President Trump’s use of the phrase “[t]o the extent” in the June 7 Memo means that he relied on the “danger of a rebellion” clause. But the June 7 Memo states: “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion,” not a danger of rebellion.
10 Where Presidents have federalized the National Guard against a state governor’s wishes, they have used other statutes to do so. See Exec. Order No. 11,207, 30 Fed. Reg. 3743 (Mar. 23, 1965) (relying on the Insurrection Act, then codified at 10 U.S.C. §§ 332–334, and now codified at 10 U.S.C. §§ 252–254). It seems that this would be the proper course if a governor refused to issue an order, as forcing a governor to do so would raise serious anti-commandeering problems. See Printz v. United States, 521 U.S. 898, 935 (1997).
11 Indeed, President Trump has officially recognized that fentanyl trafficking is a “national emergency” and a “public health crisis,” Fact Sheet: President Donald J. Trump Proceeds with Tariffs on Imports from Canada and Mexico, White House (Mar. 3, 2025), and called the January 2025 Los Angeles wildfires a “tragedy [that] affects the entire Nation,” Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas, White House (Jan. 24, 2025).
12 Defendants argue that the separation of powers cuts against judicial intervention, see Opp. at 2, but they focus exclusively on the separation between the Executive and the Judiciary, missing entirely the important balance between federal and state power.
13 And potentially nationwide, as the June 7 Memo invoking 10 U.S.C. § 12406 does not name Los Angeles or California or any other geographical area and purports to apply to “the Governors of the States,” not just California. Indeed, amici from Washington, Delaware, Arizona, Colorado, Connecticut, Hawai'i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Vermont, Wisconsin, Rhode Island, and the Office of the Governor of Kansas contend that they “are implicated by the unlimited scope of” the June 7 Memo. See States Amici (dkt. 30-1) at 2. Whether the memo adequately satisfies any of the conditions of § 12406 as to jurisdictions beyond Los Angeles is not before this Court.
