Harmeet Dhillon ascended to head the DOJ’s Civil Rights Division off a career backing election denialism and fronting Trump’s most nonsensical defamation suits. Ed Whelan is a conservative legal movement darling who spent the Brett Kavanaugh confirmation hearings peddling a bizarre conspiracy theory to discredit Kavanaugh’s accuser and pin the attempted sexual assault on someone else based on real estate floorplans, earning the moniker “Zillow Ed.”
Last night, these two leading lights of the conservative legal movement launched into a bitchy slapfight on Twitter. Or X, if Dhillon’s former client Elon insists.
Yesterday, Chief Judge Patrick Schlitz of the District of Minnesota issued an order demanding that Acting ICE Director Todd Lyons appear personally to answer for the government’s delays and non-compliance with the court-ordered releases. As the judge forcefully wrote, “The Court’s patience is at an end,” and he wanted the head of the agency to show up to face possible contempt charges. So ICE just went ahead and released Juan Tobay Robles, the subject of the specific caption in front of Schlitz, all to avoid having to bring Lyons to court.
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On cue, right-wing media began smearing Chief Judge Schlitz — who had already earned the ire of conservatives for refusing to take the extraordinary step of overturning a magistrate judge’s denial of an arrest warrant for Don Lemon — trying to dig up proof of the judge’s wild-eyed pinko lefty impulses. It proved an uphill battle, given that Schlitz is a George W. Bush appointee who clerked for Antonin Scalia… twice. But then Fox News had a breakthrough, noting that the Chief Judge has donated to organizations providing legal services for poor people, including the Immigrant Law Center of Minnesota!
Responding to the report, a no doubt annoyed Chief Judge told Fox News, “I have donated for many years to the Immigrant Law Center of Minnesota. I have also donated for many years to Mid-Minnesota Legal Aid. I believe that poor people should be able to get legal representation.”
That should be the end of it, but it’s 2026 so it definitely wouldn’t be. Conservatives continued sounding off that Schlitz was presumptively unfit because he donates to charities. Whelan, a fellow Scalia clerk, jumped in to explain to the masses that his insider sources tell him that the federal judiciary’s own rules would consider Schlitz’s donations ethically irrelevant:
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Putting aside that federal judges probably shouldn’t have a secret ethics code, Whelan’s response missed the point. The mob of right-wing media consumers — a mob that Whelan has gleefully thrown red meat as a long-time National Review blogger — doesn’t care if these donations were up to ethical snuff. The mob doesn’t even care if Schlitz could have or should have recused himself. They think donating to immigrants is presumptively disqualifying for a federal judge. Responding “well, actually, all judges can do this” only feeds their wingnut belief that the whole system is corrupt.
So, yes, in a sane world, Whelan’s post should end the argument. But sanity packed up and moved away a long time ago. Check Zillow.
This is not, in any obvious way, “related to this post.” But it is a common refrain from insecure lawyers on social media. Whenever they disagree with a law professor, or a legal journalist, or, as the case may be, the voice of a right-wing think tank, they puff their chests and declare “do you even go to court, bro?” as though waiting through a cattle call is the only authentic qualification to have a legal opinion. Whelan does not spend his days in trial courts, but he does have close personal friendships with copies of the federal judge rulebook on their shelves.
Yes, her response has no bearing on the ethical rule. That should be the end of the post. Having apparently never heard the old saw, “better to remain silent and be thought a fool than to speak and remove all doubt,” Whelan continued. “I have spent the last two decades promoting originalism and textualism, working to transform the courts, and promoting conservative legal causes.” Defying all odds, he managed to make himself sound less credible. Dude, you worked for the Justice Department too. Just say that! “Well, I have spent 20 years attending parties and peddling disingenuous readings of obscure 19th century pamphlets” is not getting the job done.
In any event, Whelan had asked a rhetorical question. Does Dhillon know what a rhetorical question is?
[Rimshot]
Tween girls everywhere are saying, “damn, you two need to dial down the drama.”
Do you need a client to understand the appearance of impropriety? Seems pretty straightforward. Like, if you bring a ludicrous lawsuit in a jurisdiction for the sole purpose of drawing a judge who owns a sizable chunk of a stock directly tied to your client… that would be an appearance of impropriety. Context-free?!? He included a citation!
It is not very strange. It is very predictable.
And successful too… at least with the conservative audience for this conversation. The replies just mindlessly parrot Dhillon. “You’re acting like a grown up ‘lawyer’ without actually having been one in practice,” one writes, apparently without investing the 10 seconds required to look Ed up on Wikipedia. “Ed failed Ethics Class in his on line law school,” writes another. Presumably a Yalie.
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I assume that’s a crack about Dartmouth.
Dhillon does not reply to this. Uninterested in leaving well enough alone, Whelan double dips:
That’s argumentative checkmate right there! If you accidentally press the heart icon, it forever bars all disagreement. That’s from the nonpublic Compendium of Twitter Rules §4.2-3(g).
Honestly, starting to wonder if either of them know what a non sequitur is.
This is all very stupid, but I implore you to note that she disses him for not understanding how Twitter works and then screencaps THE WRONG TWEET. You cannot make this stuff up.
Yes. You cannot say, “there are various ethical canons” and then not cite any that contradict. But to play devil’s advocate for Dhillon — who finally stopped posting after this… or maybe passed out — the official advice that Whelan cited only says a judge need not recuse “merely” by virtue of making a donation. So, not to get all “textualist,” but it is not dispositive. If a donation that would otherwise be acceptable reasonably creates an appearance of bias, then a judge may find it more prudent to recuse themselves anyway. Nothing about the quoted text directly contradicts that. The Fox News drums and the bleating in the replies signals that there’s a sizable population out there who think this at least creates an appearance of bias.
But there’s nothing reasonable about it! It’s just the dimmest bulbs in law grasping at straws because much smarter conservative judges aren’t letting the administration perform an end run around the rule of law. The term heckler’s veto is consistently misapplied, but the accurate definition of the phrase has some similarities to this situation. You can’t silence free speech just by claiming you’re “protecting” the speaker from hypothetical violence, and you can’t manufacture an appearance of impropriety by ginning up a mob to call it “improper.”
Giving money to groups that provide legal counsel to poor people does not bias a judge. If it did, there would be a lot more Legal Aid victories in this world. Making sure people have counsel is not the same as endorsing those clients. No reasonable, objective observer thinks believing 3-year-olds shouldn’t represent themselves in court is the same as endorsing open borders.
Unfortunately, this is another instance of this administration actively promoting conspiracy theories against federal judges. It’s one thing to flag a judge for specific bias, and it’s quite another to recklessly, without any support, blast judges to an audience that you are fully aware can and has lashed out violently after being baited with right-wing conspiracy theories.
It’s a pretty good argument for disbarring a government attorney trafficking in such nonsense.
But kudos to Dhillon and Whelan for providing some late-night entertainment. It was one of those sporting matchups where you legitimately hope both teams lose. And they did not disappoint.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.