Trump Judge Rules SPLC Can’t Prove Vindictive Prosecution Without Evidence, Which She Also Won’t Let Them See

Before the DOJ brought criminal charges against the Southern Poverty Law Center, FBI Director Kash Patel called the civil rights organization “a partisan smear machine” and accused the entity of defaming hate groups. Because Kash Patel has never met a political investigation he couldn’t take credit for, the FBI went so far as to issue a report on the group and claim that its work convinced the then-acting U.S. Attorney to open a case. Assistant Attorney General Harmeet Dhillon going on Newsmax to justify the prosecution as revenge for SPLC criticizing “one of [her] ‘friends.'” And Donald Trump told 60 Minutes that the prosecution was a product of the SPLC being “a total scam run by the democrats.” After moving forward with a flimsy indictment that failed to properly state the elements of a crime, the DOJ put together a superseding indictment that somehow made the case weaker and then leaked it to right-wing media.

On Friday, Chief Judge Emily Marks of the Middle District of Alabama denied the SPLC’s motion to dismiss its 11-count indictment as a vindictive prosecution. She also denied the fallback request for discovery into how the charges came to be. Because, she explained:

The SPLC has failed to offer some evidence tending to show animus on the part of the prosecutors involved in bringing this case and that such animus resulted in the prosecution, the showing required for discovery.

If you’re interested, she probably has a bridge she could sell you too! You could probably get financing for that purchase from Wells Fargo… which is coincidentally the bank she bought shares in weeks after being assigned a Wells Fargo case.

The judge is correct that parties shouldn’t be able to easily dismiss cases against them based on claims of political vindictiveness. Donald Trump tried to escape civil and criminal cases against himself and his organizations by claiming Democratic prosecutors were out to get him despite a hefty record of wrongdoing. But when the people behind the prosecution keep making public statements that they approve the charges as a matter of retribution, it’s at least worth having a look at the paper trail that inspired the case.

Marks, however, closed off that cache of evidence so ferociously you’d think it was the Epstein files.

On the plus side, the judge rejected the DOJ’s proposed vindictive prosecution standard, which claimed the doctrine only reaches cases brought to retaliate against procedural rights exercised in the course of litigation — appealing a conviction, refusing a plea — and not substantive ones like, say, publishing things the government dislikes. The Government’s position that “the general exercise of public speech” doesn’t qualify as a right you can be punished for is, she wrote, “simply wrong.”

But as she widened the door on that end, she welded it shut on the other:

The Constitution vests “[t]he executive Power . . . in a President of the United States of America,” U.S. CONST. art. II, § 1, and charges him to “take Care that the Laws be faithfully executed,” id. § 3. “The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States.”

Despite laying out the contours of the conservative movement’s unitary executive theory fiction, the opinion immediately retreats from this to argue that the only relevant evidence of a vindictive prosecution rests in a U.S. Attorney alone with their thoughts in a dark room.

When evaluating the SPLC’s motion to dismiss the indictment, the Court is mindful that the “central figure” in any prosecution is the prosecutor. Blackledge, 417 U.S. at 27. So it is the motivations of the United States Attorney’s Office for the Middle District of Alabama that are central and not, say, those of members of Congress. 

And what of the director of the federal government’s police force pushing a report and bragging about inducing the prosecutor to take the case? Marks discounts it because the report came in October, and charges weren’t finally filed until April.

Or the president telling the media that the case was brought to punish Democrats?

President Trump’s rhetoric is (rather famously) wide-ranging, and he has undoubtedly been critical of the SPLC. However, the SPLC fails to establish that President Trump’s statements evince animus on the part of the United States Attorney for the Middle District of Alabama. So, though President Trump has specifically criticized the SPLC, the organization has not provided evidence that the prosecutors working on this case were in any way motivated by his purported animus.

What happened to “l’executive branch, c’est moi,” huh? It seems the executive is a unitary entity fully embodied within the person of the president right up until his dementia-fueled ramblings could prove inconvenient for the DOJ. As soon as it risks undermining the effort to use law enforcement power to shield the administration’s white nationalist allies from being listed on a heat map, the executive magically reverts to a collection of autonomous, well-meaning bureaucrats exercising independent judgment.

History confirms that prosecutors are entitled to a “presumption of regularity,” meaning that, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” 

Federal judges across the country have built an expansive record of this Department of Justice forfeiting the presumption of regularity, up to and including losing vindictive prosecution cases. Marks does not engage with this record, choosing instead to embrace fantasies about the DOJ that much of the federal judiciary recognize as long gone.

To be fair, Marks does not fully pretend prosecutors work in isolation. She acknowledges the “stalking horse” theory — that a prosecutor could be “prevailed upon to bring the charges by another with animus” — and even drops a footnote helpfully informing us that “[a] stalking horse is, apparently, ‘a horse or a figure like a horse behind which a hunter stalks game.'” Thanks! She then explains what it takes to prove such a “figure like a horse,” citing a Sixth Circuit case where the defendant produced affidavits from agency insiders, including a retired EEOC official who said the agency pushed the prosecution as revenge.

Alas, the problem with requiring testimony from an insider is that you need to let the defendant get testimony from an insider. When Marks writes that the SPLC failed to “provide evidence that Mr. Davidson was directed to bring the present charges by a superior with a vindictive motive,” while simultaneously ruling that the SPLC is not allowed to look at the communications between the prosecutor and his superiors, it kind of gives away the game.

But even without discovery, the SPLC already has a whistleblower report laying out the vindictive prosecution! In April, Reps. Jamie Raskin and Mary Gay Scanlon wrote to Associate Deputy Attorney General Aakash Singh that, according to whistleblower information provided to the Judiciary Committee, Singh “you ordered the U.S. Attorney’s Office for the Middle District of Alabama, to rush through the indictment of the SPLC, despite serious concerns about the strength of the case.” Singh is described inside the building as Blanche’s enforcer.

Neither Singh’s name, nor the whistleblower report, appears in the opinion.

Then there’s Carey, which Marks cites twice. Mr. Carey burned a flag in Lafayette Park hours after Trump signed an executive order demanding flag-burning prosecutions, and Judge Boasberg let him proceed with an inquiry into the government’s motives, observing that “[a]ny time a policy directs the [DOJ] to find charges to bring against people who exercise their rights in disfavored ways, the odds of vindictiveness are high indeed.” Marks quotes that line approvingly and then footnotes it into irrelevance, because Carey‘s prosecution was “expressly predicated upon, rather than merely subsequent to, protected activity.”

Except the record here includes a presidential memorandum instructing the Joint Terrorism Task Force to investigate “institutional . . . funders” who “aid and abet” political violence, followed a few weeks later by an FBI incident report on the SPLC that reads:

The SPLC uses the [H]ate [M]ap as a scheme to defraud by making false representations which are transmitted in interstate commerce through their website.

That is the FBI identifying constitutionally protected publication as the fraud. We’re not stretching to reach “expressly predicated upon” here.

It’s worth noting how the Carey case ended. After Judge Boasberg granted the inquiry, the DOJ moved to dismiss the charges the week its discovery obligations came due. It’s almost as though the mere prospect of transparency sends these thugs scurrying. The Carey case should stand for the proposition that the DOJ should always be asked to show its work because the odds are it’s properly terrified of what that will reveal.

Marks closes by warning that the court “cannot license a fishing expedition based on innuendo or speculation,” and that “[i]f the presumption of regularity means anything,” it counsels against filling in the blanks. What is regular about any of this?!? I’d offer up the Pepsi Challenge where she lays out the timeless routine of prosecutions against political critics being wrapped in endless declarations by the administration that hey, just so you know, we’re doing this as retribution, thank you for your attention to this matter!

As Lord Chief Justice Hewart put it, “justice must not only be done, but must be seen to be done.” For Chief Judge Marks, we must settle for the reverse — so long as nobody is permitted to look, justice is done.

(Opinion on the next page in all its circular glory…)

Earlier: Trump DOJ Indicts Civil Rights Group For Working To Take Down Hate Groups
New SPLC Indictment Has Us Wondering If The DOJ Is Trying To Lose

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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.