There is an epidemic of rogue ham sandwiches running wild in Washington DC. Federal prosecutors are having a tough time getting grand juries to indict defendants arrested by federal officers since the DC federal takeover. Particularly when the arrest was for filming ICE agents. Bryan: "This might be the Fifth Amendment in action right here."
Bryan opened August 27 with a recurring pattern in DC federal courts: grand juries were declining to indict defendants arrested by federal officers during the Trump administration's takeover of local law enforcement in Washington DC. The trend was particularly notable when the arrests were connected to people filming ICE agents — a constitutionally protected activity. Bryan used the occasion to teach the grand jury's function: a constitutional checkpoint before trial, requiring prosecutors to demonstrate bare minimum evidence of a crime before the case proceeds. The grand jury's evidentiary threshold is deliberately low — the old joke is that a grand jury will indict a ham sandwich — which makes refusals significant, since they represent DC citizens exercising their constitutional veto against cases the state brought with insufficient basis. Bryan framed these refusals as the Fifth Amendment working as designed: the people having a voice in whether prosecution is warranted, and using that voice to push back on enforcement they found illegitimate.
Grand jury independenceFifth Amendmentfilming police (First Amendment protected)DC federal court prosecution of DC residents
Constitutional question: The grand jury clause of the Fifth Amendment — "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" — is the people's constitutional checkpoint against the state. In a city whose own law enforcement had been federalized over residents' objections, the grand jury became a venue where DC citizens could exercise the one formal constitutional power they still held over the federal prosecution machinery. Bryan's framing: the grand jury isn't just a procedural technicality; it is the mechanism through which "you and me" put a veto on the state's power to prosecute.
The Global Health Council case just keeps going. Yesterday the district court denied the government's motion to stop payments. Then they appealed to the DC Circuit. DC Circuit didn't give them what they wanted. Then they went straight to the Supreme Court. It's only a two-week stay before the September en banc hearing. Bryan: "They may honestly decide it's faster to just shut them up. But I don't love the precedent."
Global Health Council v. Trump (25-cv-00402) continued its multi-round payment fight on August 26-27. On August 25, the district court had denied the government's motion to suspend payments through the September en banc hearing. Overnight, the government appealed to the DC Circuit — and the DC Circuit didn't give them the stay they sought. So on August 27, the government escalated directly to the Supreme Court, seeking a two-week stay of the payment obligation — just long enough to get to the September en banc hearing. Bryan noted two concerns. First, SCOTUS might just grant the stay for the two weeks because it's a short period and it's faster than writing an opinion saying no — but that would set a bad precedent about the executive's ability to use SCOTUS as a quick exit valve from district court payment orders it doesn't like. Second, SCOTUS's approach to separation of powers in recent years has been deferential to the executive in some spending contexts. The underlying en banc DC Circuit hearing would still proceed in September.
SCOTUS emergency stayDC Circuit stay denialen banc hearing pending (September)payment continuance obligation
Constitutional question: The underlying constitutional issue is congressional appropriations vs. executive non-payment. Each court along the escalation ladder has found that the executive must pay funds Congress directed to be paid. SCOTUS's intervention on a two-week stay would implicitly weigh in on whether the executive's non-payment interest is significant enough to override the appropriations command — even temporarily. Bryan's concern about the precedent is well-founded: a SCOTUS stay, even a short one, signals that the executive's non-payment argument has enough legal credibility to warrant temporary relief, which would reverberate across all the similar grant-termination cases.
The president issued an executive order specifically targeting WilmerHale — a major law firm — because they hired Robert Mueller and had a DEI program. He banned them from federal buildings, revoked security clearances, canceled contracts. Bryan: "Make a wild guess what is the first thing that lawyers learn in law school. Yeah. It's how to fight canceled contracts." WilmerHale sued. The EO was held unconstitutional at the district level. The government appealed.
WilmerHale v. Executive Office of the President (25-cv-00917) is a First Amendment and due process challenge to an executive order the Trump administration issued targeting the law firm WilmerHale specifically. The stated bases for the EO: WilmerHale had hired Robert Mueller (who had investigated Trump during his first term) and had an internal diversity initiative. The EO banned WilmerHale attorneys from entering federal buildings, revoked security clearances of firm members, and canceled federal contracts the firm held. WilmerHale — a firm whose lawyers are, by profession, skilled at fighting canceled contracts and unconstitutional government action — sued immediately. The district court found the EO unconstitutional; it didn't take long. The government appealed. As of August 27, the case was in the appellate process. Bryan's framing was direct: targeting a law firm because it hired an investigator who investigated you, and because it has viewpoints you disagree with, is exactly the kind of content-based government retaliation the First Amendment prohibits. The administration had picked a fight with people whose entire career is knowing how to fight back.
First Amendment retaliationexecutive order targeting specific entitysecurity clearance revocationcanceled government contractsFirst Amendmentdue processunconstitutional EO at district level
Constitutional question: The First Amendment prohibits the government from punishing private parties for their speech, associations, or viewpoints — including the associations implicit in who they hire and the programs they run. An executive order specifically targeting a law firm by name, because of its protected associations and viewpoints, is a textbook unconstitutional retaliation. The security clearance dimension adds a due process overlay: revocation of clearances without individualized findings, as a blanket punishment of an entire firm, implicates the procedural protections clearance holders have. The case is also structurally significant: if the president can target specific law firms with executive orders for taking on disfavored clients, access to legal representation for those clients is chilled — which has implications for the rule of law in all the other administration cases.
The Trump administration sued all the federal judges in Maryland because the chief judge set up a standing rule giving immigration habeas cases an automatic two-day pause before any removal. Since every Maryland judge was a defendant, none could hear the case — they brought in a Virginia Trump appointee. Bryan: "I don't know the Honorable Thomas T. Collin, but whew, this case about burn my fingers. That judge is pissed." The ruling: Congress never created a road for the president to sue the federal judiciary. And the executive has no equitable power to enjoin judges — that power didn't exist in 1789 either.
U.S. v. Russell (25-cv-02029) arose from a conflict between the Trump administration's policy of rapid removal and a standing administrative order issued by the Chief Judge of the District of Maryland. The chief judge's order: any immigration case involving habeas corpus — a person claiming unlawful detention and seeking judicial review — gets an automatic two-day stay before the government can deport or change the person's status. The purpose: the court was being flooded with habeas petitions, and habeas is a constitutional right that cannot be extinguished by court congestion; the two days gave the court time to get each case on its docket and heard. The problem for the administration: its policy was rapid removal before courts could intervene. The two-day rule was blocking that. Trump's response: sue all the federal judges in Maryland. Because all Maryland judges were defendants, none could hear the case, requiring importation of an outside judge. A Virginia Trump appointee — Judge Thomas T. Collin — was assigned. His ruling was emphatic. On jurisdiction: Congress controls what subject matter the federal courts can hear (Article III), and Congress has never created a cause of action for the executive branch to sue the federal judiciary. No road exists for the president to drive down here. On equitable power: just as CASA held that nationwide injunctions didn't exist as an equitable remedy when the Judiciary Act was written in 1789, the power to enjoin judges also didn't exist in 1789 — so courts don't have equitable power to grant that remedy either. Bonus: footnote 2 tore into the executive branch's public rhetoric about judges — calling judges "politically minded, rogue, unhinged, unconstitutional, crooked, and worse" — as "a concerted effort by the executive to smear and impugn individual judges who rule against it" that is "both unprecedented and unfortunate." Bryan: that is judge-speak for a mic drop.
Executive branch suing federal judgesArticle III jurisdictioncause of action (none for executive-vs-judiciary)equitable power to enjoin judgeshabeas corpus standing ordertwo-day automatic stayCASA analogy (1789 equity limit)judicial independence
Constitutional question: The case raises the most fundamental question in constitutional structure: can the executive branch use the courts to disable the judicial branch? The answer the court gave is structural and historical: the federal courts are courts of limited jurisdiction, and Congress — not the executive — defines that jurisdiction. No statute authorizes the executive to sue judges in their official capacity for their judicial orders. The habeas corpus standing rule the chief judge issued is itself constitutionally grounded: habeas is the oldest common law liberty protection in our legal tradition, and an administrative order ensuring habeas petitions get heard before removal is not just procedurally permitted — it is constitutionally required. The footnote on executive rhetoric goes beyond the case: it names a pattern (the administration calling adverse judges unhinged, crooked, rogue) as an "unprecedented" institutional attack that threatens judicial independence as a constitutional structure.
