Resignations from DOJ and new litigation developments sharpen the U.S.'s ongoing constitutional crisis

There are a number of dimensions to the current, ongoing constitutional crisis in the United States, all of which arise from actions taken by the Trump regime. There is the burgeoning conflict between the federal executive and federal judiciary which is likely headed to a showdown over the executive's compliance with judicial orders. There is the executive branch's usurpation of the powers of the federal legislative branch, Congress. Then, there is the breakdown of rule of law and ethics within the federal Department of Justice itself. There have been developments on all three fronts today.

The U.S. Constitution does not assign the federal attorney general independence from the chief executive, the U.S. President. In this, the federal structure conspicuously diverges from the many state constitutions that call for elected state attorneys general who have authority, separate and independent from state governors, to pursue litigation. This distinct authority – derived from state constitutions, statutes, and common law predating the American Revolution – prevents state governors from interfering with the legal judgment of the attorney general, who has paramount responsibility for representing the interests of the state and its people in court.

Although the U.S. Constitution does not allocate such independent authority to the U.S. Attorney General, the Department of Justice has, certainly since Watergate, maintained a large measure of independence from the White House, a policy and practice respected by post-Nixon U.S. presidents from both parties. This separateness has reflected a consensus between DOJ and the White House that law and justice, on the one hand, are different from partisan politics and raw exercise of power, on the other. With Donald Trump's second election, a new consensus between the DOJ and the White House is in place, according to which the DOJ exists to serve the President's agenda, regardless of its lawfulness or constitutionality. This new consensus means that Trump and his Attorney General, Pam Bondi, both expect federal attorneys to do all they can to facilitate whatever Trump wants - or whatever his favored lackeys, e.g. Elon Musk, want. As we saw today, this expectation easily runs straight against established legal authority requiring criminal prosecutors, including federal criminal prosecutors, to pursue justice and to act with candor toward tribunals. As I write this, at least six federal prosecutors have resigned over a recent DOJ order to dismiss corruption charges against New York City Mayor Eric Adams. Every one of them is significant. Perhaps the most surprising one is Danielle Sassoon's. Only three weeks since being sworn in as the head of the DOJ office in the Southern District of New York, Sassoon wrote a scathing letter of resignation, which you can read here (with my annotations). Sassoon clerked for Reagan-appointee J. Harvie Wilkinson III on the right-leaning Fourth Circuit and then for Antonin Scalia at the Supreme Court. She belongs to the Federalist Society. Yet she told her boss at DOJ, Trump's former defense lawyer Emil Bove (currently he is acting U.S. Deputy Attorney General) that professional ethics, judicial precedent on prosecutorial misconduct, and longstanding and memorialized DOJ internal precedent and policy made it impossible to be party to the quid pro quo deal Bove brokered with Adams, whereby Bove promised DOJ would dismiss corruption charges against Adams so that Adams can carry out Trump's immigration policies. You can find easily find more information about Adams' corruption online. Read Sassoon's letter itself for more information about Bove's dealings with Adams leading up to Bove's directive to drop the prosecution.

The resignations of the first round of federal prosecutors told to do so preemptively demonstrates how unethical and lawless any later prosecutors would be were they to cease prosecuting Adams' corruption on the basis of Bove's deal. But Bondi and Bove may find existing DOJ attorneys to drop the charges or they may hire new ones who will. That will lay bare that the DOJ itself is wholly subsumed in Trump's constitutional coup.

Meanwhile, litigation continues apace over the utterly unconstitutional Department of Government Efficiency (DOGE), helmed by Elon Musk. In a suit brought against the Labor Department a coalition of labor unions represented by Democracy Forward, the plaintiffs today filed an amended complaint, updating all their arguments in light of conduct Musk and his henchmen have undertaken since the original filing. Also today, a new suit, Does 1-26 v. Musk, has been filed specifically against Musk and DOGE by current and former employees of USAID. The complaint extensively details the formation and activities of DOGE to undergird claims that Musk and DOGE have violated the Appointments Clause of the U.S. Constitution and the overall separation of powers dictated by the entire Constitutional design. What is striking about this new action is that it explicitly alleges an unlawful, unconstitutional "government takeover" by Musk and DOGE. The suit seeks an immediate halt to all Musk/DOGE activity and a declaration that all of that has already occurred is unlawful and should be set aside.

Does 1-26 v. Musk sets the stage for concrete, direct showdowns between Trump and Musk on one side and the other branches federal government on the other. First, should the plaintiffs obtain even a temporary injunction against Musk/DOGE, we will see what is becoming a familiar conflict: between the federal judiciary and the executive. Second, should plaintiffs succeed and the executive branch comply (a big if) , Trump will be forced either to jettison Musk and DOGE or to reconstitute DOGE under Musk by going through the usual appointments process for powerful, high-ranking federal officials, which calls for Congressional approval. Minimally, this will slow the torrent of destructive activity. The current Congress, dominated as it is by Republican Fascists who so far have knuckled under to and supported Trump at every opportunity, might eventually approve Musk and grant DOGE authority to do much what that has already been attempted (note that insofar as DOGE is attempting specific unconstitutional or otherwise unlawful acts, Congress cannot authorize these). But Republicans who vote to give Musk and DOGE power will have to go on record as doing so, which matters. What Doe 1-26 achieves a clear, sharp articulation of the illegality of what has gone on so far. I anticipate explaining the suit further as it develops.