Every federal judge (and justice) should read the two letters from Chief Judge Patrick Schiltz in the church protest case—and what they tell us about the Department of Justice's litigation behavior.
Steve, thank you for laying out so clearly the facts as well as the judicial reasoning that helps protect what seems right now to be our strongest institution. Judge Schlitz is doing the job the Founders planned for the courts to do.
Can you say more about the Eighth Circuit? Isn't it that Circuit's Court of Appeals that is allowing ICE continue to use tear gas, (and worse), against protesters?
CA8 is slightly less nakedly fascistic than CA5, but even more reliably conservative in its panel draws, as it is almost entirely comprised of Republican appointees.
I also think that, broadly, the fascist judiciary is learning lessons from each other in how to obstruct justice-- enter fake "administrative" stays with no duration, write as little as possible when in the majority so that there's nothing to rebut or attack, slow-walk dissents when in the minority, latch on to (or, if necessary, invent) nonmerits objections to whatever the requested relief is (usually involving shunting the claim to an administrative tribunal that a. doesn't have independent members and b. couldn't grant effective relief even if it did), and openly invite SCOTUS to reweigh the evidence and ignore the facts. The Boasberg contempt situation, where we're now ten months from flagrant contempt of court and the district judge hasn't been able to hold a basic factfinding hearing yet, exemplifies this behavior.
The Trump DOJ sees the federal and State courts as a road block or stepping stone to get to the Supreme Court , and usually the shadow. There is no doubt Justice's serving the Supreme Court are bought and paid for to the point where the Constitution is meaningless. The truth will float like always, but this time Justice's of the supreme Court will be exposed, and change will come to the Supreme Court
Agreed on the DoJ chasing headlines. Also the reason the Canada tariffs came back (briefly) in the news after TACO-ing to Europe.
The question will be the judges under pressure to both-sides or outright side with the DoJ. Opaque systems to slow down unfavorable cases that the court cant avoid on the merits, while accelerating the favored, but weaker cases? Sounds like a shady way to manage a docket.
In your opinion, why was the DOJ's emergency petition sealed in the first place? Reading it now, it's the kind of filing that the current government likes to trumpet. Are such petitions initially sealed as a matter of course? Was it sealed in the hopes that the district court would be unable to respond?
It's a great question for which I don't have a good answer. There are *exhibits* to the petition that remain sealed, but that could've been done without sealing the petition itself. I can't think of a good reason for not wanting the brief itself to be public; indeed, DOJ moved to seal the *entire case.*
Judge Schiltz’ letter points out DOJ could have sought grand-jury indictments Tuesday, Wednesday, or Thursday but chose not to. Acting on weekends and holidays is a classic tactic for evading review (especially by the public).
Common law right of access? How about the constitutional one?
Article I§5 vests the secrecy power solely in Congress. By choosing one option the text rejects competing options. Secrecy on its own recognizance is barred to the executive branch. They must ask Congress for a vote every time they want to keep anything from the people.
And a “yes” vote must be ⅘+1, closer to unanimity than any other vote can require. This sets the highest of bars against governmental secrecy from the people. Today, at most 8 members are informed of national security matters, flatly violating the text.
Article IV§4’s guarantee of a republican form of government supports this. It requires government to keep the people informed so we can make voting decisions.
The president’s oath of office is, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Article I§3’s Take Care clause adds taking care that the laws are faithfully executed. Those are the executive mandates. Not only is national security not an executive mandate, it is to Congress, not the president, that we granted the High Seas power over piracy, etc, that would impose any peacetime duty to secure borders. The president is particularly charged with protecting the Constitution to prevent the office from degrading into tyranny.
The text’s focus on rights above order is seen repeatedly in the Bill of Rights, in its bar on bills of attainder, in its protection of habeas corpus, even in the restrictions placed on the punishment of treason.
Nowhere is secrecy from the courts vested.
All of the above should have prevented any peacetime “national security” apparatus. The USA has no national interest in stealing information from other nations.
Before a threat is actionable the law requires the court to rule on its credibility: It must be distinguished from a joke or exaggeration, specific, directed, delivered, imminent, cause a reasonable person to fear for their safety, etc. To seal a record against the public for national security should require this standard.
You may have noticed broad noncompliance with all of these! Even statute rebels against it, and though no such statute is enforceable courts enforce them.
The Executive Vesting myth was defeated by the ratification of Amendment X in 1791. Amdt X expressly bars extratextual US powers.
The Judicial Conference addressed this starting on p.2, and the Conference focused on the First Amendment: "the public has a First Amendment right of access to a court proceeding or record" so "sealing the proceeding or record to preserve confidentiality must be narrowly tailored to a compelling confidentiality interest."
A better view is that the people as sovereigns have the right and power to review the work of our purported public servants absent a compelling reason that confidentially serves the interests of the People.
Of course. My point was only that there's a standard, well-accepted way to address this issue under the Constitution, i.e., by invoking the First Amendment, as the Judicial Conference addressed.
Thank you again for this thorough explanation. I had read the letters yesterday; this clarifies all aspects. I think about this extreme attempt to get headlines or to punish someone along the lines of the completely outrageous, over-the-top lies of Kristi Noem in her press conference yesterday.
8th Cir has 4 Trump appointees including Grasz. Benton a Bush appointee will take senior status upon his seat being filled by Trump. Trump a couple of days ago nominated two children of active 8th Cir judges to serve on the fed bench in the same circuit, which is unusual. One is Benton's daughter. So much for the swamp and guardrails, despite Steve's legal analysis. Good lawyers know the law, great lawyers know the judge.
I was thinking the same thing. Trump appointed judges and justices will shape this country long after this Administration is gone. It is Mitch McConnell's legacy to a great degree.
I came across another post about this that I thought was also thoughtfully done: https://www.powerlineblog.com/archives/2026/01/disorder-in-the-court.php. What I found discouraging were the numerous comments added from readers that, much like comes from the Trump administration, spouted untethered attacks on the federal judges and judiciary, claiming unelected and 'activist' judges as a (preposterous) basis for the government to behave in this way.
I admit I am not as familiar with Powerline, and discoverd the site is conservative by reading the About Us link, but I still feel that Scott Johnson was thoughtful with his analysis.
I know you are being sarcastic, but as one who is going to an Indivisible rally outside of Customs in my small city in half an hour, I don’t think you recognize the very real risk many of us peaceful protesters face from untrained and, frankly scared, ICE agents. It’s not our local Customs Enforcement agents we worry about, we know they are professionals, and community members. It’s the thuggish imports by DC which cause concern.
The Executive Branch including the Department of Justice has the trappings of legitimacy, but it isn’t. It’s time to recognize and do something about that.
Allow me to add that in not notifying him about, or serving him with, the mandamus petition, the government actually denied the chief district judge (of all people) due process. And so it goes.
Thanks for another great post and links. Love, love, love the quotation marks on "Civil Rights" Division. I can't imagine how hard it must be for you right now to exercise restraint in writing about what you see as the problems with our Injustice Department. Agent Ross shoots Good through the head at point blank range and the "Civil Rights" Division says they see no basis for an investigation, but because they can't arrest a journalist and his videographer immediately, it is a nation security emergency. Orwellian to a tee.
Steve, thank you for laying out so clearly the facts as well as the judicial reasoning that helps protect what seems right now to be our strongest institution. Judge Schlitz is doing the job the Founders planned for the courts to do.
Thank you for this. Extremely helpful.
Thanks Sharon. I hope you guys are (relatively) safe in MN.
Can you say more about the Eighth Circuit? Isn't it that Circuit's Court of Appeals that is allowing ICE continue to use tear gas, (and worse), against protesters?
CA8 is slightly less nakedly fascistic than CA5, but even more reliably conservative in its panel draws, as it is almost entirely comprised of Republican appointees.
I also think that, broadly, the fascist judiciary is learning lessons from each other in how to obstruct justice-- enter fake "administrative" stays with no duration, write as little as possible when in the majority so that there's nothing to rebut or attack, slow-walk dissents when in the minority, latch on to (or, if necessary, invent) nonmerits objections to whatever the requested relief is (usually involving shunting the claim to an administrative tribunal that a. doesn't have independent members and b. couldn't grant effective relief even if it did), and openly invite SCOTUS to reweigh the evidence and ignore the facts. The Boasberg contempt situation, where we're now ten months from flagrant contempt of court and the district judge hasn't been able to hold a basic factfinding hearing yet, exemplifies this behavior.
Chilling.
Indeed
Thank you judge Schlitz!
The Trump DOJ sees the federal and State courts as a road block or stepping stone to get to the Supreme Court , and usually the shadow. There is no doubt Justice's serving the Supreme Court are bought and paid for to the point where the Constitution is meaningless. The truth will float like always, but this time Justice's of the supreme Court will be exposed, and change will come to the Supreme Court
Agreed on the DoJ chasing headlines. Also the reason the Canada tariffs came back (briefly) in the news after TACO-ing to Europe.
The question will be the judges under pressure to both-sides or outright side with the DoJ. Opaque systems to slow down unfavorable cases that the court cant avoid on the merits, while accelerating the favored, but weaker cases? Sounds like a shady way to manage a docket.
In your opinion, why was the DOJ's emergency petition sealed in the first place? Reading it now, it's the kind of filing that the current government likes to trumpet. Are such petitions initially sealed as a matter of course? Was it sealed in the hopes that the district court would be unable to respond?
It's a great question for which I don't have a good answer. There are *exhibits* to the petition that remain sealed, but that could've been done without sealing the petition itself. I can't think of a good reason for not wanting the brief itself to be public; indeed, DOJ moved to seal the *entire case.*
Judge Schiltz’ letter points out DOJ could have sought grand-jury indictments Tuesday, Wednesday, or Thursday but chose not to. Acting on weekends and holidays is a classic tactic for evading review (especially by the public).
Background information explaining why sealing such a filing was illegal is included in the 2010 Federal Judicial Center guide on Sealing Court Records and Proceedings. https://www.fjc.gov/sites/default/files/2012/Sealing_Guide.pdf.
Interesting, but there are better reasons!
Common law right of access? How about the constitutional one?
Article I§5 vests the secrecy power solely in Congress. By choosing one option the text rejects competing options. Secrecy on its own recognizance is barred to the executive branch. They must ask Congress for a vote every time they want to keep anything from the people.
And a “yes” vote must be ⅘+1, closer to unanimity than any other vote can require. This sets the highest of bars against governmental secrecy from the people. Today, at most 8 members are informed of national security matters, flatly violating the text.
Article IV§4’s guarantee of a republican form of government supports this. It requires government to keep the people informed so we can make voting decisions.
The president’s oath of office is, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Article I§3’s Take Care clause adds taking care that the laws are faithfully executed. Those are the executive mandates. Not only is national security not an executive mandate, it is to Congress, not the president, that we granted the High Seas power over piracy, etc, that would impose any peacetime duty to secure borders. The president is particularly charged with protecting the Constitution to prevent the office from degrading into tyranny.
The text’s focus on rights above order is seen repeatedly in the Bill of Rights, in its bar on bills of attainder, in its protection of habeas corpus, even in the restrictions placed on the punishment of treason.
Nowhere is secrecy from the courts vested.
All of the above should have prevented any peacetime “national security” apparatus. The USA has no national interest in stealing information from other nations.
Before a threat is actionable the law requires the court to rule on its credibility: It must be distinguished from a joke or exaggeration, specific, directed, delivered, imminent, cause a reasonable person to fear for their safety, etc. To seal a record against the public for national security should require this standard.
You may have noticed broad noncompliance with all of these! Even statute rebels against it, and though no such statute is enforceable courts enforce them.
The Executive Vesting myth was defeated by the ratification of Amendment X in 1791. Amdt X expressly bars extratextual US powers.
The Judicial Conference addressed this starting on p.2, and the Conference focused on the First Amendment: "the public has a First Amendment right of access to a court proceeding or record" so "sealing the proceeding or record to preserve confidentiality must be narrowly tailored to a compelling confidentiality interest."
A better view is that the people as sovereigns have the right and power to review the work of our purported public servants absent a compelling reason that confidentially serves the interests of the People.
The Constitution is law, though. It's mandatory. Pronouncements of the Judicial Conference of the United States are chatter.
Of course. My point was only that there's a standard, well-accepted way to address this issue under the Constitution, i.e., by invoking the First Amendment, as the Judicial Conference addressed.
Thank you again for this thorough explanation. I had read the letters yesterday; this clarifies all aspects. I think about this extreme attempt to get headlines or to punish someone along the lines of the completely outrageous, over-the-top lies of Kristi Noem in her press conference yesterday.
8th Cir has 4 Trump appointees including Grasz. Benton a Bush appointee will take senior status upon his seat being filled by Trump. Trump a couple of days ago nominated two children of active 8th Cir judges to serve on the fed bench in the same circuit, which is unusual. One is Benton's daughter. So much for the swamp and guardrails, despite Steve's legal analysis. Good lawyers know the law, great lawyers know the judge.
IIRC the Eighth was the last to have a woman or minority judge. They give the Fifth á run for its money in awfulness.
I was thinking the same thing. Trump appointed judges and justices will shape this country long after this Administration is gone. It is Mitch McConnell's legacy to a great degree.
I came across another post about this that I thought was also thoughtfully done: https://www.powerlineblog.com/archives/2026/01/disorder-in-the-court.php. What I found discouraging were the numerous comments added from readers that, much like comes from the Trump administration, spouted untethered attacks on the federal judges and judiciary, claiming unelected and 'activist' judges as a (preposterous) basis for the government to behave in this way.
it's Powerline, what did you expect?
I admit I am not as familiar with Powerline, and discoverd the site is conservative by reading the About Us link, but I still feel that Scott Johnson was thoughtful with his analysis.
Thank you for clarifying this situation.
I suppose we should be grateful that DOJ made court filings instead of having ICE’s thugs just shoot the protesters.
I know you are being sarcastic, but as one who is going to an Indivisible rally outside of Customs in my small city in half an hour, I don’t think you recognize the very real risk many of us peaceful protesters face from untrained and, frankly scared, ICE agents. It’s not our local Customs Enforcement agents we worry about, we know they are professionals, and community members. It’s the thuggish imports by DC which cause concern.
I hope the protest went off safely.
Thanks, it did, mostly supportive responses, just a few yahoos flipping us off. The attitudes are changing. And we must keep speaking.
The Executive Branch including the Department of Justice has the trappings of legitimacy, but it isn’t. It’s time to recognize and do something about that.
When Judge Grasz was nominated for the bench, the ABA rated him unqualified. Trump appointed him.
Senate (Republican?) must have confirmed.
Thank goodness for Judge Schiltz and for you Steve for as always your very clear and understandable assessment of the situation and the law.
Allow me to add that in not notifying him about, or serving him with, the mandamus petition, the government actually denied the chief district judge (of all people) due process. And so it goes.
Thanks for another great post and links. Love, love, love the quotation marks on "Civil Rights" Division. I can't imagine how hard it must be for you right now to exercise restraint in writing about what you see as the problems with our Injustice Department. Agent Ross shoots Good through the head at point blank range and the "Civil Rights" Division says they see no basis for an investigation, but because they can't arrest a journalist and his videographer immediately, it is a nation security emergency. Orwellian to a tee.
The “national security” excuse is getting a workout.