The Justice Department just had a big, stupid, embarrassing summer.
The Department conjured a slush fund designed to pay $1.776 billion of taxpayer money to January 6th rioters that was so screamingly asinine it caused a revolt by ordinarily docile Senate Republicans. After bleating at a press conference that she’d rain down hell upon alleged Reflecting Pool liner-ripper David Hearn, D.C. U.S. Attorney Jeanine Pirro dismissed her own case, meekly attempted to deflect blame, and was lambasted publicly by the President for “chok[ing]” and folding “like an umbrella.” A federal judge in Tennessee dismissed the indictment of Kilmar Abrego Garcia because “the evidence before this Court sadly reflects an abuse of prosecuting power.” Justice Department leadership declared proudly that DOJ need not, and should not, be independent of the President. And the man responsible for it all, Attorney General Todd Blanche, was rewarded with Senate confirmation by a single vote cast before dawn on a sleepy Saturday in late August.
Now, as Labor Day approaches, we can look ahead to a Fall of even more spectacular prosecutorial failures. With Blanche firmly embedded as the boss – his prize for abject maladministration of the nation’s top law enforcement agency – look for DOJ to continue careening down the road to prosecutorial overreach and, ultimately, failure.
The prosecution of former FBI Director James Comey – the second one, after DOJ botched the first – has been circling the drain for months, and it’ll soon get flushed entirely. The Justice Department has strained to make Comey’s social media post depicting seashells arranged to read “86 47” amount to a threat to murder the President. Recognizing that neither leading dictionaries nor ordinary usage support their hysterical interpretation, prosecutors spent much of the summer casting for lifelines. They ran the term “86” through the FBI’s agency-wide database, but found nothing equating it to murder. They scoured the files from a thirty-year old mob case handled by Comey but again came up empty. The best the Department could do was to dredge up Sammy “The Bull” Gravano – who admitted to 19 murders, got out of prison early because he cooperated, and then began a new life of crime that landed him back in prison – to say that “86” “generally” means to kill, but that no actual gangster would ever use that phrase. (I once spoke to Gravano on the phone during a Gambino Family trial because we needed somebody to testify to a specific event that he had witnessed years ago; after maybe five minutes, I hung up and told the assembled FBI agents there was no way we’d be calling this fraud to the stand.)
We’ve recently learned that the Justice Department’s case is somehow even worse than it initially appeared. Prosecutors disclosed in a new filing that, two minutes before Comey posted the seashells image, his wife had texted him a screenshot showing that “86” means “to get rid of or refuse service.” The Justice Department appears to trumpet this fact as some type of smoking gun, but in fact it all but assures Comey’s acquittal. If the key term is ambiguous – and here, neither construction of “86” plainly means murder – then a threats case will fail. The only remaining questions are when exactly the Comey case will officially collapse, and whether the dismissal will be based on vindictive prosecution or failure of evidence.
Also teetering on the brink is the Justice Department’s hyper-aggressive charge against Trump antagonist (and target) Don Lemon for allegedly interfering with the religious rights of congregants at a Minnesota church; Lemon was present because he was covering the event as a journalist. (Disclosure: Lemon is a former CNN colleague of mine and a friend.) A federal judge in August demanded that prosecutors provide her with records of secret grand jury proceedings, to be reviewed for potential irregularities. It is extraordinarily rare for judges to probe a grand jury presentation, and the mere fact that the judge is taking a look at the transcripts indicates that she harbors some doubt about the prosecution’s tactics. It’s a rare step and often a prelude to dismissal. Don’t be surprised to see the case tossed sometime soon.
While we can expect continued unraveling of these ongoing prosecutions, Justice Department leaders now face precipitous decisions about whether to charge still more futile Trump payback cases. The President unsubtly suggested in mid-August that he’d like to see his prosecutors go after New York Attorney General Letitia James, yet again; DOJ’s first indictment of James was dismissed by a judge, and prosecutors then tried but failed twice to convince grand juries to re-indict. It’ll be up to Blanche whether to pursue James (and fail) for a fourth time.
Blanche and Pirro also must decide whether to seek an indictment of Anthony Fauci, after a contempt referral from Republican Senator Rand Paul. (Paul ever-so-dramatically delivered his referral by hand, which has precisely zero legal effect.) Whatever one thinks of Fauci’s work as an immunologist, any effort to prosecute him for contempt is doomed. Fauci was within his legal rights to invoke the Fifth Amendment when questioned by the Senate Judiciary Committee in early August. And Paul violated ordinary procedure for contempt; he referred the case to DOJ based only on a vote of the Committee, bypassing the full Senate (plainly recognizing he wouldn’t have the votes). Administration officials are now hesitant to charge Fauci because of this procedural screw-up, according to new reporting by the Wall Street Journal. Prosecutors would be wise to show some restraint here. A Fauci indictment would generate massive headlines, and inevitably would crash and burn.
The Summer of 2026 might have seemed like a historic nadir for the once-proud Department of Justice. But it’ll likely get worse for Blanche and DOJ as the leaves turn in the months ahead.
