By Ella Lee and Zach Schonfeld | Wednesday, August 20 |
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By Zach Schonfeld and Ella Lee Wednesday, August 20 |
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© Jeff Roberson, Associated Press |
Bailey, Bongino tag team FBI leadership role |
President Trump is bringing in backup at the FBI, installing a staunch legal ally in a newly created leadership post. Andrew Bailey, Missouri's attorney general, is joining the Justice Department as co-deputy director of the FBI — a position he'll hold alongside Dan Bongino, a longtime backer of the president whose role in the administration has become more tenuous as it grapples with Jeffrey Epstein fallout. As Missouri's top prosecutor, Bailey positioned himself as a warrior for conservative causes, mounting challenges to abortion rights, Big Tech, student loan forgiveness and more. Last year, he took the Biden administration to the Supreme Court over its "vast censorship enterprise," asserting that federal officials violated the First Amendment by urging platforms to remove posts they deemed false or misleading. The justices denied the challenge brought by Bailey by finding he did not have legal standing, leaving the First Amendment issues untouched. Bailey also came to Trump's defense as the president faced criminal prosecution. Following Trump's conviction on 34 counts of falsifying business records in Manhattan last year, the Missouri attorney general sued New York, saying the prosecution stepped on the rights of his state's voters. He asked the Supreme Court – which has exclusive jurisdiction over legal disputes between two or more states – to block Trump's sentencing and a gag order until after the 2024 election. The justices rejected the plea. "As Missouri's Attorney General, he took on the swamp, fought weaponized government, and defended the Constitution," Deputy Attorney General Todd Blanche, who was Trump's attorney in the hush money case, said Monday of Bailey. "Now he is bringing that fight to DOJ." It's not the first time Trump has made Bailey couple up. Trump last year endorsed both Bailey and his primary opponent, Will Scharf, as they competed to become Missouri attorney general. Scharf was one of Trump's personal attorneys, and after losing to Bailey, he joined Trump's White House as staff secretary. You may recognize Scharf as the person who now hands Trump executive orders to sign in the Oval Office. It's not apparent how Bailey's responsibilities at the FBI will be newly split with Bongino, but the appointment of a co-deputy director seems to minimize Bongino's role. It comes amid reported tensions surrounding Bongino over the administration's handling of the Epstein files. Bongino, like dozens of right-wing internet figures, was on the frontlines of conspiracy theories about Epstein, the disgraced financier who died by suicide in 2019 while awaiting trial on sex trafficking charges. After the Justice Department last month issued a joint memo stating Epstein did not have a client list and confirming he died by suicide, Bongino erupted. Several news outlets reported he weighed resigning over the handling of the matter and raged at agency leaders, including Attorney General Pam Bondi. Trump told reporters last month that he still has confidence in him. Bongino's path to the FBI looked very different than Bailey's. A right-wing podcaster, Bongino was tapped as the sole deputy FBI director in February after spending years as one of the bureau's loudest critics. His career began in 1995 with the New York Police Department, and years later, he joined the U.S. Secret Service, where he eventually was placed on presidential protective duty for former Presidents George W. Bush and Obama. After leaving the Secret Service in 2011, he launched several failed political campaigns before his career as an internet provocateur took off. Despite their different paths, both Bongino and Bailey have something in common. Neither has previously worked for the FBI, breaking the tradition of selecting someone who has risen through the agency's ranks. |
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TikTok; Trump's voter machine war; NFL on its way to SCOTUS |
Could TikTok kill Trump's national security legal defense? |
Two former Supreme Court advocates for the government warned Monday that the Trump administration's efforts to defend itself in court by pointing to national security could face an unexpected hindrance: TikTok. The Gavel joined judges and lawyers in Chicago on Monday at the annual conference for the U.S. Court of Appeals for the 7th Circuit. Though Justice Amy Coney Barrett was pegged as a headliner, she spoke for less than three minutes that evening, opting to shy away from politics. The afternoon conversation between former solicitors general Elizabeth Prelogar and Paul Clement proved more interesting. Prelogar and Clement pointed to the China-owned social media behemoth as reason Trump's legal defense might falter. In January, the Supreme Court upheld a law requiring TikTok's China-based parent company, Bytedance, to divest from the app or face a ban from U.S. app stores. The law was passed amid concerns the Chinese government could access Americans' data or manipulate the short-form video app's content algorithm to execute a covert influence operation. Clement, solicitor general during the younger Bush's second term, noted that Congress addressed the high-profile issue by pointing to the "national security imperative to do something." The statute was defended in part on that basis. "But then the national security imperative, I guess, wasn't quite as imperative," Clement said. Despite the high court's decision to let the law go into effect, the Biden administration said it would not enforce it ahead of Trump's inauguration. Trump has since kept enforcement on hold. "I do think that that could have some long-term consequences when the administration, in subsequent cases, comes up to the Supreme Court and says, 'We really need to do something extraordinary for national security,'" Clement said. Prelogar, who was former President Biden's solicitor general and argued the case for his administration, agreed. She called it a "rare event" to litigate a "seminal" Supreme Court decision to victory and see no "real application" immediately. The president's decision to let TikTok remain operative, despite the national security risks expressed by the previous administration and Congress, could have consequences. "Not only did the government make those arguments, but the court arguably relied on them, which could come back to haunt the government as it seeks to get the court's deference on national security issues going forward," she said. The Trump administration has repeatedly pointed to national security as the president's sweeping agenda has faced legal challenges, namely in four Big Law firms' bids to deem illegal Trump's executive orders targeting them. Clement represents the law firm WilmerHale in its lawsuit. The conversation came amid the ex-solicitors generals' review of the Supreme Court's most major decisions this term — some argued by Prelogar herself. They spoke to a jam-packed ballroom in a hotel near Chicago's Magnificent Mile. Of the TikTok case, Prelogar said it was one of few her two sons watched closely. But when her 14-year-old son's friends asked "which side" she would argue, he "froze," she joked, not willing to expose his mother's role in restricting the platform. "There wasn't a ban," she jokingly insisted. The Supreme Court advocates also commented on the justices' increasingly bloated emergency docket, especially now as challenges to Trump's sweeping agenda reach the high court in troves. They noted that the influx of emergency applications has not only changed the "rhythm" of the court — but also of the solicitor general's office. "There's a night and day difference in how the office functions," Prelogar said. Clement suggested that his office filed only a "couple" emergency applications during the younger Bush's presidency. Prelogar said she thinks the Trump administration has already filed as many emergency applications as she did in her four years in the office. "And I felt like I was doing a lot," she said. |
Trump pursues voting machine war as Newsmax settles |
Trump is returning to his war on mail ballots and voting machines ahead of next year's midterms, signaling plans to sign a new executive order that would ban them. "Remember, the States are merely an 'agent' for the Federal Government in counting and tabulating the votes," Trump wrote on Truth Social Monday. "They must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do." Meeting with Ukraine's president in the Oval Office hours later, Trump doubled down on his push. The order's text remains to be seen, but if it's anything like what Trump has described, expect Democrats to challenge it. "The President almost certainly has no authority to dictate how states conduct their elections, and his proposals run counter to the Constitution's Elections Clause," New Mexico Secretary of State Maggie Toulouse Oliver (D) said in a statement. Nevada Secretary of State Cisco Aguilar (D) responded similarly when we asked him for comment, noting that mail ballots are the top choice for voters in the key swing state. "Nevada runs safe, secure elections and we will stand up against any attempts to silence the voices of our citizens," Aguilar said in a statement. Trump's announcement came the same day that Newsmax announced it will pay voting machine company Dominion Voting Systems $67 million to settle its lawsuit over the conservative channel's 2020 election coverage. It's the latest sum for Dominion, which two years ago secured an eye-popping $787-million settlement from Fox News over its coverage. The president has long declared war on mail ballots and voting machines, asserting unfounded accusations that they sparked widespread voter fraud in his 2020 loss. More than four years later, Trump has continued to press the issue in his second term, supported by allies like MyPillow CEO Mike Lindell. In an interview with The Gavel last month, Lindell was bullish about getting rid of voting machines. "Mike wants to melt down the electronic voting machines and turn them into prison bars. That's what Mike wants, and that's what Mike's going to end up getting, is these machines will be gone," Lindell told us. He was spotted at the White House the next day. Trump's forthcoming order appears to be the president's latest front on voting ahead of next year's midterms, when Republicans hope to maintain their control of both chambers of Congress. The president signed an executive order in March that asserts greater presidential control over elections and seeks to institute strengthened proof-of-citizenship requirements. That order has come under five lawsuits, and judges have halted portions of Trump's directive as the litigation proceeds. And in recent weeks, Trump has pushed Texas Republicans to commence a redistricting effort that would add several Republican-leaning seats. |
NFL will inch coach lawsuits closer to SCOTUS |
The NFL is inching two major lawsuits brought by coaches closer to the Supreme Court. Both involve whether the league can force the disputes into arbitration, which would keep the coaches' legal claims away from a jury and public view. Last week, the NFL's efforts fell flat in two separate courts, which ruled the coaches are entitled to pursue their claims before a jury. But the league isn't giving up. It plans to ask both courts to rehear the appeals, The Gavel has learned. And if that fails? The next step would be the Supreme Court. The NFL's first loss came when the Nevada Supreme Court ruled 5-2 that the league's arbitration clause doesn't apply to former Las Vegas Raiders coach Jon Gruden's lawsuit. It reverses a panel decision that sided with the NFL. Gruden resigned in 2021 after The New York Times and The Wall Street Journal uncovered emails he wrote while working for ESPN that used racist, misogynistic and homophobic language. The NFL had found the emails during a sexual harassment investigation into the Washington Football Team (now the Commanders). Gruden's lawsuit claims the NFL engaged in a "malicious and orchestrated campaign" to force his resignation, and he seeks the remainder of his 10-year, $100 million coaching contract. Nevada's high court ruled that Gruden is not bound by the NFL's forced arbitration provision since he is no longer an employee. Chief NFL spokesman Brian McCarthy told The Gavel, "We will be appealing the decision." The NFL was handed another loss on Thursday, when a 2nd U.S. Circuit Court of Appeals panel ruled Brian Flores and other Black coaches' discrimination claims against the NFL and three teams — the Denver Broncos, Houston Texans and New York Giants — can proceed before a jury. The 2nd Circuit took issue with NFL Commissioner Roger Goodell's power under the league's rules to serve as arbitrator. The panel found the Federal Arbitration Act, a century-old law that enables parties to enforce arbitration agreements, doesn't apply because Goodell's role makes it "arbitration in name only." "Accordingly, the agreement betrays the norm of bilateral dispute resolution," the panel ruled. Though the disputes aren't heading to the Supreme Court quite yet, the NFL is already involved in one case pending before the justices. The NFL filed a friend-of-the-court brief backing the National Basketball League (NBA) in its bid to end a lawsuit filed by one of its online newsletter subscribers, who claims the NBA violated federal law by disclosing his data. The justices will consider taking up the case at their first closed-door conference of the upcoming term, court records show. |
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- Bondi walks back MPD memo: Attorney General Pam Bondi on Friday walked back her push to install an administration official as the emergency commissioner of Washington, D.C.'s police department under pressure from a federal judge.
- CFPB dismantling can resume: The U.S. Court of Appeals for the D.C. Circuit on Friday lifted an injunction that had long blocked the administration's efforts to dismantle the Consumer Financial Protection Bureau. The new ruling is on hold for one week.
- O'Rourke fundraising block expanded: A Texas state judge on Friday expanded his order limiting former Rep. Beto O'Rourke (D-Texas) and his political group from funding state Democratic lawmakers who fled the state to block a redistricting push.
- 'Alligator Alcatraz' suit narrowed: A federal judge Monday partially dismissed "Alligator Alcatraz" detainees' lawsuit that raises concerns about attorney access. Some of the migrants' constitutional claims are proceeding, but the judge said they must be transferred to a different judicial district.
- Dem states sue over crime victim funds: Democratic attorneys general from D.C. and 20 states sued Monday over the administration's bid to condition federal funding for crime victims on cooperation with immigration enforcement.
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- Oops: A Fulton County Superior Court judge accidentally relayed a "not guilty" verdict as "guilty." He apologized for the "mispronunciation." Watch it here.
- Bye bye, Big Apple: Ex-New York City mayor Rudy Giuliani's penthouse in the Upper East Side has sold for $4.95 million, a significantly discounted price. The property was nearly seized by two ex-Georgia election workers who won a $146 million defamation judgment against him but he was allowed to keep it as part of a settlement reached earlier this year.
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- A federal judge in South Carolina is set to hold a motions hearing in a man's defamation lawsuit against Rep. Nancy Mace (R-S.C.), over a House floor speech in which she accused him of being a predator. The judge will hear arguments over whether to dismiss the case, allow discovery and other matters.
- A federal judge in Rhode Island is set to hold a preliminary injunction hearing in a lawsuit brought by Democratic states over the Trump administration's extension of a law's requirements for states to verify a person's legal status before allowing them to access certain federal programs, including Medicaid.
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- A federal judge in Georgia is set to hold a preliminary injunction hearing in a campaign finance case involving gubernatorial candidates Lt. Gov. Burt Jones and Chris Carr, the state's attorney general.
- A federal appeals court panel in San Francisco will hear arguments on the Trump administration's bid to overturn a judge's order requiring various agencies to turn over documents they used to plan mass layoffs.
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- No notable hearings scheduled.
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- A federal judge in Washington, D.C., will hold a hearing to assess the Trump administration's efforts to comply with his order to restore Voice of America's operations.
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- A federal judge in Washington, D.C. is set to hold a hearing on new developments in a lawsuit challenging the Department of Government Efficiency's (DOGE) cost-cutting efforts at the Department of the Interior and environmental agencies.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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