Aloha Friday

October 10, 2025 — Aloha Friday

Oct 10, 2025

1010 AM TT

Donald Trump's DOJ indicted New York Attorney General Letitia James — the same AG who took him to court over his real estate fraud. Bryan's framing: this is the same playbook as Comey, the same prosecutor, and the same constitutional problem. Lindsey Halligan, who brought the charges, may not have been lawfully appointed to do it.

US v. Letitia James is part of what Bryan was tracking as Trump's retaliatory prosecution pattern — a series of criminal cases brought against political opponents by DOJ, each mirroring a prior accusation against Trump himself or his allies. The case against James, New York's AG who had pursued the civil fraud case that resulted in a judgment against Trump, was brought by Lindsey Halligan, an interim/special US attorney whose appointment was legally contested on Appointments Clause grounds. Bryan flagged it as the procedural twin of the Comey prosecution: same prosecutor, same legal vulnerability, same political valence. The Appointments Clause problem: under Article II, officers of the United States must be properly appointed — either as principal officers (requiring Senate confirmation) or as inferior officers (appointed by a department head or the courts). If Halligan's appointment didn't meet that standard, his authority to bring charges is constitutionally defective, and the entire case can be challenged on that basis regardless of the underlying merits.

Vindictiveretaliatory prosecution

Constitutional question: The Appointments Clause is a structural safeguard — Congress cannot create an office that exercises significant governmental authority and then fill it through an appointment process that bypasses Senate confirmation or proper department-head designation. If Halligan was improperly appointed, every action he took as special counsel — grand jury presentations, charging decisions, case filings — is legally defective, not just procedurally voidable. The retaliatory prosecution dimension invokes Fifth Amendment due process: using federal criminal power to punish a state official for lawfully exercising her enforcement authority against a political figure converts criminal prosecution into a suppression mechanism.

Portland Oregon v. Trump 25-6268

The administration appealed the Oregon National Guard TRO to the Ninth Circuit. The Ninth Circuit gave them half of what they wanted. Same result as Illinois in the Seventh Circuit: you can federalize the Guard, but you still can't deploy them anywhere.

After the district court (a Trump appointee) issued two TROs blocking both the federalization and deployment of the Oregon National Guard into Portland — and blocking any National Guard following the California workaround attempt — the administration appealed to the Ninth Circuit. 25-6268 is the Ninth Circuit docket. The Ninth Circuit partially stayed the TRO: it allowed the federalization of the Oregon National Guard (the administration can bring them under federal command and pay them) but left in place the deployment block (they cannot send those troops anywhere into Oregon). Bryan noted the parallel to what happened in the Seventh Circuit with the Illinois National Guard case: both circuits drew the same line. The practical effect: the federal government is now paying for two sets of federalized National Guard troops — Oregon and Illinois — and cannot use either of them. Bryan's read: you can have them on the payroll, you just can't order them to do anything.

10th Amendmentpresidential authority to federalize state National GuardTRO stay standard

Constitutional question: The federalization-vs.-deployment distinction is constitutionally significant: federalizing the Guard brings it under federal command authority (the president's commander-in-chief power), but the deployment of federalized troops domestically implicates 10th Amendment sovereign interests of the state and the factual predicate for the emergency power invoked. The court preserved the state's protection from having armed federalized troops on its streets while leaving intact the narrower federal authority to organize those troops. The parallel Seventh Circuit ruling in Illinois established the same line — creating a de facto national circuit consensus on the split between federalization authority and deployment authority.

Newsom v Trump 25-3727

California's case against the federalization of its National Guard was already pending in the Ninth Circuit when the administration tried to send those same California troops to Oregon. Governor Newsom's response: if things are so bad in California that you need to federalize our troops, why are you sending them to another state?

Newsom v. Trump at the Ninth Circuit (25-3727) challenges the president's authority to federalize the California National Guard under 10 U.S.C. § 12406 — the statute that allows the president to call state guard forces into federal service when he is "unable with regular forces to execute the laws of the United States." The administration's factual predicate: protests and civil unrest in Southern California require federal guard intervention. Governor Newsom countered both the factual basis and the legal standard. The factual argument: if the situation in California requires federal guard intervention, sending those guard troops to Oregon undermines the administration's own justification. If they can spare California's Guard to deploy in Oregon, the situation in California cannot be as dire as claimed. The legal argument developing alongside: "regular forces" in § 12406 means the professional Army — the president must first demonstrate inability to address the situation with the standing Army before federalizing state guards. The administration pushed back that "regular forces" means regular officers (ICE, FBI), not necessarily the Army. The Ninth Circuit was still considering this as of mid-October.

Article I (Congress's authority to provide for calling forth the militia)Article II commander-in-chief power

Constitutional question: The National Guard occupies a dual state/federal role under the Constitution — Article I gives Congress authority to provide for "calling forth the militia," while Article II makes the president commander-in-chief of "the militia of the several States, when called into the actual service of the United States." The division of roles — Congress sets the rules, the president executes — is the constitutional architecture underlying § 12406. The "regular forces" argument would enforce a sequencing requirement: the president must exhaust federal military capacity before invoking the constitutional authority to draw on state militia forces, protecting state sovereignty from preemptive federalization.

CHC v. Noem 25-cv-12173

Yesterday, the TRO issued in the Chicago Headline Club case. It's broad. It covers journalists, peaceful protesters, and anybody on a public sidewalk. Federal officers in the greater Chicago area are now under court order and it's already been appealed — but the judge denied the stay herself before the 7th Circuit could.

On October 9, Judge Sarah Ellis issued the TRO in Chicago Headline Club v. Noem — the First Amendment challenge covering journalists, union members, and Chicago residents alleging First Amendment violations by federal agents during enforcement operations. Bryan reported the details of the TRO, which the government immediately appealed to the 7th Circuit. The judge denied a stay pending appeal before the court of appeals could act. The TRO's main provisions: (1) Journalists — federal agents may not disperse, arrest, or threaten to arrest journalists or anyone they reasonably know to be a journalist (Bryan: if you're holding a press badge, wearing a press vest, or standing off to the side documenting rather than participating, that counts); journalists asked to move must still retain a reasonable opportunity to observe and report. (2) Peaceful protesters — agents may not issue crowd dispersal orders or require anyone to leave a public place they have a lawful right to occupy without justified exigent circumstances (defined by Homeland Security's 2023 use-of-force regulations). (3) Riot control devices — restricted unless there is an immediate threat of bodily injury; requires two reasonably audible warnings before deployment, with a narrow exception only if someone is in immediate danger. (4) Force — only necessary and proportional to effectuate a lawful arrest; "bring in and not actually arrest" practice expressly prohibited. (5) Identification — all federal agents (except genuinely designated undercover agents) must display a visible alphanumeric identifier on the outside of their uniform or helmet, even in riot gear. Dissemination ordered: Broadview ICE facility by 5 PM the day of issuance; all other agents by midnight the following day.

First Amendment (assembly, press, petition)use of force against First Amendment activityfederal officer identification14-day TRO pending PI hearing

Constitutional question: The TRO operationalizes the First Amendment's protection of assembly, press, and petition against federalized enforcement forces — a constitutional question the Oct 8 filing had flagged: what constraints apply to domestic deployments of federal agents under the Chicago crime emergency? Judge Ellis's answer: the same constraints that always apply. The identification requirement addresses the structural accountability problem: when officers cannot be individually identified, misconduct cannot be individually attributed, which both chills First Amendment activity and prevents enforcement of the constitutional limits. The stay denial by the district court before the 7th Circuit could act means the TRO remains operative immediately — the constitutional violation continues during delay.

MARGOT REVIEW NOTES

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