Morning Report

October 28, 2025 — Morning Report

Oct 28, 2025

1028 AM TT

Smith v. Trump 21-cv-02265 · 21-cv-02265

Bryan attended a discovery hearing Monday in Smith v. Trump — seven police officers injured on January 6th suing the Trump campaign for inciting violence. The hearing was about privilege: which documents the defendants can withhold. The core problem: whether a document is privileged often depends on which hat the sender was wearing at the moment — White House employee or campaign staffer — and nobody has records of those hours. The judge: I'm not going through these one at a time. But I can't just take your word for it either.

Smith v. Trump (21-cv-02265) is a 2021 civil lawsuit by seven Capitol Police officers injured on January 6th, suing the Trump campaign and associates on grounds of inciting violence that put the officers in danger. Bryan caught a discovery hearing on October 27. The hearing addressed attorney-client privilege disputes: defendants are withholding a large volume of emails claiming privilege, and plaintiffs say they don't believe all of them qualify. The complicating factor Bryan explained: many people in Trump orbit moved between government employment (White House) and campaign employment. Attorney-client privilege for campaign communications only applies if the person was functioning in their campaign capacity at the time. Without records of when specific people — Bryan used Stephen Miller as a hypothetical — were on or off government time, it's impossible to determine which emails are privileged on their face. Example: Miller emails a campaign lawyer a legal question from campaign headquarters at night (privileged); one hour later, back at the White House, he emails the same lawyer asking about a restaurant (not privileged). Defendants had also struggled to get witnesses to sign affidavits in this case because many were in their own litigation. The judge: the burden of proving privilege is on the party asserting it; if they haven't met it, they haven't met it. Bryan: "I didn't know this case existed till it showed up on the court calendar yesterday. One more for Attorney Dye's closet docket."

Attorney-client privilegediscovery in complex multi-party litigationburden of proof on privilegeHatch Act (government employeecampaign role distinction)

Constitutional question: Smith v. Trump is a civil case grounded in tort and constitutional claims (incitement of a mob that assaulted officers performing their constitutional duties). The constitutional layer is primarily in the underlying claim — whether the Trump campaign's coordination, rhetoric, and preparation for January 6th constituted tortious incitement — but the privilege hearing touches constitutional values around attorney-client confidentiality as a structural protection for the right to legal counsel. The campaign finance dimension (Hatch Act, use of government time for campaign purposes) adds a further constitutional layer about the line between public service and private political activity.

US v. Garcia 25-cr-00115 · 25-cr-00115

Kilmar Abrego Garcia's situation: sent to a Salvadoran prison by accident, court orders ignored, then charged with human trafficking on almost no evidence — per the judge. The criminal trial is going badly. The DOJ admitted in a civil hearing that without an injunction, they'd deport him to Liberia on Friday. The criminal court judge ordered every document produced with no privilege — not attorney-client, not executive, nothing — by noon Wednesday. The civil court judge: Liberia is not happening on my watch.

US v. Garcia (25-cr-00115) is the criminal case against Kilmar Abrego Garcia, running in parallel with his civil immigration case. Timeline: Abrego Garcia was sent to El Salvador's CECOT prison, admittedly by the government, by accident. Despite multiple federal court orders in his civil case to facilitate his return, the government refused. In May, DOJ charged him with human trafficking — with "almost no evidence," as Bryan noted the criminal judge had characterized it. After the charges were filed, the government sprang him from El Salvador and brought him to the US for trial in June. The criminal trial proceeded poorly for DOJ: the judge allowed a rare vindictive prosecution claim to advance, creating serious professional consequences for the prosecutors involved. In Monday's civil hearing, DOJ admitted that if not for the civil injunction, they would be deporting Abrego Garcia to Liberia on Friday — a move the civil judge would not permit. The criminal judge issued an extraordinary order: by noon Wednesday (Oct 29), DOJ must produce all relevant documents to the judge for in camera review, with no privilege asserted whatsoever — no executive privilege, no attorney-client privilege, no presidential privilege. Documents sought include: who directed the change from "do not prosecute" to "prosecute then deport," what motivated that change, and all emails between the Deputy AG's office in DC and the US Attorney's office for the Middle District of Tennessee. The civil judge refused to lift the preliminary injunction until she received a clear explanation why Abrego Garcia couldn't be sent to Costa Rica (where he'd requested to go) — and why the government only offered Costa Rica if he pled guilty in the criminal trial (which he refused).

Vindictive prosecutiondue processprivilege waiver order (in camera review)immigration injunction

Constitutional question: Vindictive prosecution is a Fifth Amendment due process claim: using federal criminal power to punish someone for exercising constitutional rights or for adverse civil litigation outcomes. Abrego Garcia's criminal charges arrived after he generated civil court orders the government didn't want to comply with — the sequence being what the criminal judge found worth letting a jury hear about. The in camera no-privilege order from the criminal judge touches executive power: courts have authority to order production of executive branch documents when necessary for a constitutional claim (as in US v. Nixon), and neither executive privilege nor attorney-client privilege is absolute. The parallel track of civil and criminal proceedings — each constraining the other — is itself constitutionally significant: the government cannot use criminal prosecution to moot civil rights litigation, and civil courts can enjoin government action that would impede a defendant's fair trial.

Taylor v. Trump 25-cv-03742 · 25-cv-03742

37 former death row inmates had their sentences commuted to life by Biden. Trump told them on Christmas Day in all caps: "GO TO HELL, GOD BLESS US, EVERYONE." On January 20th he signed an EO directing the AG to put them all in conditions "consistent with the monstrosity of their crimes." Translation: all 37 to ADX Florence supermax, on October 31st — Halloween. TRO hearing at 2 PM. Bryan: "Meanwhile, my girlfriend Betty Sue and I will be at Makeout Point talking about how good I was at the football game."

Taylor v. Trump (25-cv-03742) is a civil case by 37 former death row inmates whose sentences were commuted from death to life without the possibility of parole by President Biden. Trump reacted publicly on Christmas Day with an all-caps social media post telling all 37 to "GO TO HELL, GOD BLESS US, EVERYONE." On January 20th — his first day in office — Trump signed an executive order directing the Attorney General to evaluate "the places of imprisonment and conditions of confinement for each of the 37 murderers" and take action to ensure their imprisonment was "consistent with the monstrosity of their crimes and the threats they pose." The practical effect: all 37 were to be transferred to ADX Florence, the federal supermax facility in Colorado — with the move scheduled for October 31st, Halloween. The problem: some of the 37 have serious medical and mental health needs that ADX Florence cannot accommodate. The legal problem: we generally don't write laws or punishments targeted at specific identified people. A TRO motion hearing was scheduled at 2 PM. Bryan: he thought the hearing would be "interesting" and guessed it would be "a little over the top" given the fiery rhetoric. He provided a call-in number for listeners.

executive punishment without court processvindictive executive action

Constitutional question: The presidential commutation power (Art. II, §2) is plenary — once a sentence is commuted, the original punishment (death) is legally extinguished. An executive order directing harsher imprisonment conditions for the specific recipients of that commutation is not a reversal of the commutation (which is impossible), but it is using executive power to punish people for receiving clemency. Bryan's structural point: individual rights don't get smaller for less sympathetic holders. The slippage principle — if these 37 can be singled out for punitive treatment by executive order, the mechanism exists to apply to anyone — is what makes the case legally significant regardless of who the plaintiffs are. The Halloween transfer date is theatrical, not legally relevant, but Bryan treated it as revealing something about the underlying motivation.

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