The reason for these Trump failures would be funny — if it weren't so alarming
- Kak·i·sto·cra·cy- (kakə̇ˈstäkrəsē): a government by the least suitable or competent citizens of a state
A kakistocracy is a system of government where the most unfit, incompetent, and unscrupulous individuals are in power. Such a system does not reflect rational decision-making. Instead, Trump’s kakistocracy is emerging as the consequence of systemic failures (by Donald Trump’s design), corruption (ditto), and societal dynamics (manipulated, but not wholly created, by Trump).
Malevolence may also be a factor. Outside his naked lust for power, profit, and retribution, Trump has shown little interest in governing. After DOGE trashed most federal services, the only departments left fully operational are Trump’s well-funded instruments of power and control: ICE/DHS, FBI, DOJ, DOD, Federal Bureau of Prisons, and the US military.
But as Trump seeks to grossly expand his reach through these entities, it is gratifying to watch his hand get slapped back, largely due to his and his administration’s incompetence, by federal courts insisting on the rule of law.
Sheer incompetence led to the dismissal of Trump’s pet prosecutions
On Monday, Judge Cameron McGowan Currie threw out Trump’s cases of political retribution against James Comey and Letitia James, after a parade of incompetence.
The cases were dismissed without prejudice when Currie ruled that Lindsey Halligan, Trump’s interim U.S. Attorney for the Eastern District of Virginia, was acting without authority when she obtained the Comey and James indictments. This slap came not for Halligan’s career-ending errors, like failing to present the complete indictment to the complete grand jury, misstating the law to jurors, or for doing Trump’s illegal partisan bidding, but because her appointment as the interim U.S. Attorney was unlawful under both federal law and the US Constitution.
The arcana of judicial appointment procedure may seem boring, even inconsequential, but what Trump tried to do with Halligan demonstrates that it is anything but. Judicial appointments are governed by the article II of the Constitution, and 28 U.S.C. § 546. Under these authorities, a president gets to appoint interim U.S. attorneys for a 120-day appointment. When that 120-day period runs out, the authority to fill the position then shifts to the federal judiciary, not the president acting through his Attorney General.
That shift is enormously consequential. It was designed to block rogue actors from appointing one interim US attorney after another, running through a roster of unethical lawyers willing to break the law by pursuing cases based on politics rather than law.
That is exactly what happened with Halligan.
Trump tried to install a revolving door of lawless sycophants
Judge Currie held that the initial 120-day appointment clock began in January with Trump’s appointment of Erik Siebert, the previous interim U.S. Attorney. Seibert’s 120-day interim period expired on May 21 but the district court judges, following federal law, reappointed him to serve until the vacancy was filled. Trump then nominated him for the full-term position, so he continued to serve.
However, in September, Siebert refused Trump’s request that he pursue criminal charges against Trump’s political enemies, Comey and James. Trump loyalists claimed James falsified property records to receive better loan terms, and that Comey made a false statement to Congress, despite the lack of evidence. Seibert spent five months investigating but ultimately determined there was not enough evidence to proceed with either case. (When Fair Housing officials agreed in internal memos that James committed no crime, they were dismissed.)
Because Seibert refused to pursue unethical and unsupported indictments, Trump wanted to fire him, but Seibert beat him to the punch and resigned. At that point, AG Pam Bondi backdoor-installed Halligan as Seibert’s replacement, but that decision was up to the courts, not Trump. Because Halligan was not legally appointed to serve as interim US attorney, the court ruled that she had no authority to pursue the Comey and James indictments and threw them out.
Trump’s legal clowns keep dropping balls they shouldn’t be juggling
When Seibert said no, he wouldn’t risk his law license to pursue Trump’s wet dream prosecutions unsupported by law, he wrote a “declination memo,” a standard memo outlining the reasons why. That memo featured prominently in a related hearing that revealed yet another lawless DOJ move.
DOJ counsel refused to answer another judge's simple “yes or no” question about whether Seibert wrote such a memo. When Judge Michael Nachmanoff got irritated by the DOJ lawyer’s cagey responses, he pressed until the lawyer finally admitted the reason for his reticence: Because Todd Blanche, Trump’s Deputy Attorney General, instructed him not to admit the declination memo existed.
Federal trial attorneys know that lying by omission to a federal judge, or a lack of candor in response to any judge’s inquiry, if proved, is grounds for disbarment. I’ll go out on a limb here and predict that many of Trump’s DOJ lawyers will find alternative careers when Trump leaves office.
In the meantime, these dismissals are gratifying because they prove that evil intent can be thwarted — trumped, if you will, by vast incompetence.
As a 30-year litigator, I know it is unseemly — unprofessional, even — to enjoy seeing a strident lawyer with more confidence than competence get her comeuppance for acting unethically.
But in this space, I’m a political writer suddenly laughing at the realization that authoritarianism can’t prevail here because it requires competence. It’s funny as hell and the schadenfreude is delicious.
- Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.