Morning Report

September 26, 2025 — Morning Report

Sep 26, 2025

926 AM TT·Federal Courts Update Morning Report Aloha Friday Sept 26 2025 YT

James Comey was indicted yesterday on two counts — both tied to the same claim: that he lied to a senator about authorizing a leak. That's the case they got. But there was a third count the DOJ tried to get the grand jury to indict on — and the grand jury said no. Bryan's read on why that matters: that third count is probably why they brought this case at all. And the grand jury's refusal to indict is about as clear a signal as you get that there was almost no evidence for it.

The indictment has two charges: (1) Comey lied to Congress when he said he hadn't authorized anyone at the FBI to serve as an anonymous source in news reports; (2) by making that false statement, he impeded a congressional investigation. Both charges stem from a single statement. According to The Hill (Bryan using outside sources because the indictment itself doesn't name people), the underlying exchange was a Ted Cruz question: did Comey authorize a leak to the Wall Street Journal about investigations into Hillary Clinton's emails and Trump-Russia connections? Comey said he was unaware of the leak. Andrew McCabe, his former deputy, had suggested at the time that Comey had authorized it. The third count the DOJ pushed — and the grand jury rejected — was that Comey lied to Lindsey Graham when he denied knowing about Hillary Clinton approving an "election interference plan" against Donald Trump. Bryan's analysis: that third count was the whole point. They wanted to prove a "deep state" operation existed. The grand jury's refusal is notable because the standard to indict is low — a grand jury almost always gives the prosecution what it asks for. Not getting an indictment here strongly implies minimal evidence for the claim. Bryan posted the indictment in his shared documents under criminal cases.

Criminal perjuryfalse statements to Congress (18 U.S.C. § 1001)

Constitutional question: The grand jury's refusal is a structural feature of the criminal justice system in action — the Fifth Amendment grand jury requirement exists precisely to serve as a check between the government's charging decision and the formal accusation of a citizen. When a politically charged prosecution fails even at the grand jury stage on its most important count, it signals that the Fifth Amendment's gatekeeping function worked as intended. Whether the two surviving counts are themselves politically motivated — or legally sufficient — remains for trial.

US. v. Leahy 22-cv-13822 · 22-cv-13822

The 13th Amendment doesn't come up much. But yesterday the 11th Circuit applied it to a Florida road rage case — a man who tried to ram a Black family off a highway while yelling racial slurs. The court upheld his federal conviction. Bryan's frame: most people think the 13th Amendment just abolished slavery. The second clause does something else. Here's what it looks like in practice.

Jordan Leahy was convicted of violating 18 U.S.C. § 245, a federal civil rights law that criminalizes using force or threats to interfere with someone's use of a public facility because of their race. The facts: he repeatedly attempted to ram a Black father and his family off a public road while hurling racial slurs and making threatening gestures. The 11th Circuit upheld the conviction in a three-judge panel, writing that it was "not a close question." Bryan used the case to explain the constitutional architecture. The 13th Amendment bans involuntary servitude. Its second clause — less well-known — gives Congress the power to enforce that ban by legislation. Under that authority, Congress can prohibit what courts have called the "badges and incidents of slavery" — conduct that perpetuates the conditions of racial subordination even without formally enslaving anyone. Section 245 is one of those laws. The court found that blocking a Black family's movement on a public road by force and racial terror is exactly the kind of badge of slavery the 13th Amendment's second clause empowers Congress to prohibit.

13th Amendment Section 2badges and incidents of slavery doctrine18 U.S.C. § 245

Constitutional question: The 13th Amendment's enforcement clause (Section 2) is one of the most expansive congressional grants of power in the Constitution — it reaches private actors, not just government conduct, and covers the legacy conditions of slavery as well as the institution itself. The "badges and incidents" doctrine has been used intermittently since the Civil Rights Cases (1883), expanded significantly in Jones v. Alfred H. Mayer Co. (1968), and applied most recently in cases like this one. It represents one of the few constitutional hooks for federal criminalization of purely private racial violence without a state action predicate.

Molina v. DHS 25-cv-03417 · 1:25-cv-03417

Since Trump declared a crime emergency in DC on August 11th, federal agents from ICE, DEA, Homeland Security, and the FBI — many in plainclothes — have arrested over 3,000 people. Often without asking names. Without checking IDs. Without making any individualized probable cause determination. A new class action is asking a federal court to stop it. One of the named plaintiffs has valid TPS status. He was cuffed on his way to work and held overnight until ICE figured out he was here legally.

Trump's August 11 crime emergency federalized DC's police and brought in National Guard troops plus federal agents from multiple agencies for street patrols. Since then, a 36-page class action complaint filed in DC federal court alleges agents have conducted mass arrests without individualized probable cause assessments — sometimes without even asking the detained person's name or checking identification. Named plaintiff Jose Molina, 25, has valid Temporary Protected Status; he was handcuffed en route to work and held overnight before ICE determined he was lawfully present and released him. A Venezuelan asylum seeker was detained in a Home Depot parking lot for four weeks before his release. The coalition of plaintiffs' organizations is seeking a court order halting the sweeps and expunging arrest records. The White House and Homeland Security had not responded to the complaint at the time of the episode. Bryan: "People keep asking me how these actions don't violate the Fourth Amendment. Well, they very well may."

Fourth Amendmentprobable causewarrantless arrest doctrine

Constitutional question: The Fourth Amendment prohibits unreasonable seizures. Mass arrests based on presence in a geographic area rather than individualized suspicion — particularly when combined with racial or ethnic profiling — are among the most well-established categories of constitutional violation. The federalization of DC policing under a "crime emergency" also raises the same Art. I / DC governance questions flagged in DC v. Trump. The combination of emergency powers, plainclothes arrest authority, and mass detention without individualized cause is a significant Fourth Amendment enforcement question with downstream implications for the cases being generated.

Illinois v FEMA 25-cv-00206 · 6

A federal court in Rhode Island just ruled on the merits — not a preliminary injunction, the actual merits — that FEMA cannot condition disaster aid on states agreeing to help enforce immigration law. The spending clause lesson in one sentence: if you want to bribe the states with federal money, there's a limit to what you can ask for. And 100% of hurricane recovery funding in exchange for immigration enforcement cooperation is way past that limit.

FEMA added immigration enforcement conditions to every federal emergency and disaster grant — hurricane recovery, cyber defense, wildfire response, flood response — all conditioned on states agreeing to assist ICE and other federal agencies with immigration enforcement. Illinois and other states sued. The Rhode Island district court issued a final ruling on the merits, finding the conditions unconstitutional. Bryan used it to teach South Dakota v. Dole (1987): the federal government can condition discretionary funds on state compliance IF (a) the condition represents a small fraction of the funding (more suggestion than coercion) and (b) there's a genuine nexus between the purpose of the funding and the condition being imposed. The FEMA conditions fail both tests. The conditions aren't 10% of funding — they're 100%. And disaster recovery and immigration enforcement don't share a purpose; the connection is purely political. The court found no sufficient nexus, found the conditions coercive rather than incentivizing, and struck them down. Bryan noted this is a merits ruling, not a preliminary injunction — more durable legally — and that similar cases are in the pipeline; this holding could influence all of them if it survives appeal.

Spending ClauseSouth Dakota v. Dole10th Amendment anti-commandeering

Constitutional question: The Spending Clause and 10th Amendment together set the boundary between legitimate federal financial incentives and unconstitutional coercion of state governments. South Dakota v. Dole's two-part test operationalizes that boundary. FEMA conditioning unrelated disaster aid on immigration cooperation fails both prongs and arguably crosses from conditional spending into commandeering — using federal money to conscript state officials into federal enforcement. If this ruling holds, it has implications for every administration attempt to weaponize federal grants by tying them to immigration compliance, regardless of the underlying program.

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