With the announcement that the Grand Jury has failed to indict Cassidy Hutchinson, the Dude felt the need to take a deep pull on his White Russian, and look back at the breathtaking failures of this clown circus administration…
I was sitting at the bar the other night, trying to make sense of a news story about a sandwich.
Not a particularly dangerous sandwich. No sharpened toothpicks, no suspicious mayonnaise, no elaborate plan to overthrow the government using cured meats. Just a Subway sandwich, thrown at a federal agent in Washington, D.C., by a guy named Sean Charles Dunn.
Now, throwing things at federal officers is generally discouraged. I understand this. I once had a disagreement with a sheriff’s deputy in Malibu, and it did not improve when I explained my position more forcefully.
But the United States government decided that Dunn’s sandwich warranted a felony prosecution.
A grand jury disagreed.
So the government came back with a misdemeanor.
A trial jury disagreed with that, too.
Not guilty.
The sandwich, incidentally, had remained in its wrapper.
“ASSAULT ON A FEDERAL OFFICER!” Walter announced, pounding the bar. “You can’t just go around throwing lunch at law enforcement, Dude. There are rules!”
“Sure, Walter. But a felony?”
“THE MAN WAS ARMED!”
“With a sandwich.”
“THAT’S NOT THE POINT!”
And technically, Walter had a point. Federal officers shouldn’t have to dodge flying sandwiches while doing their jobs. There are legitimate reasons for laws protecting them.
But the Justice Department had now devoted investigators, prosecutors, a grand jury, and an actual criminal trial to the proposition that a wrapped sandwich constituted a sufficiently serious federal offense.
The government lost.
Dunn, meanwhile, lost his job at the Justice Department. Attorney General Pam Bondi announced his firing before the criminal case had even gotten properly underway.
So one party emerged from the proceedings with an acquittal and no job.
The other party went back to work.
I ordered another Caucasian.
The Case of the Defective Swimming Pool
Then Maude told me about David Hearn.
Hearn is a former Olympic canoeist, 67 years old, who was visiting the Lincoln Memorial Reflecting Pool when he noticed some of the pool’s surface coating peeling away.
He reached down to examine a loose piece.
This apparently constituted an attack on the republic.
Federal authorities arrested him and charged him with felony destruction of government property. The government alleged more than a thousand dollars in damage.
Now, you might reasonably wonder how a man reaching into a reflecting pool could cause a thousand dollars’ worth of damage.
As it turned out, that was an excellent question.
The government eventually acknowledged that the pool’s problems stemmed from a botched installation. The surface coating had been improperly applied. The renovation itself was defective.
The swimming pool was falling apart all by itself.
But here’s where the story gets interesting.
After prosecutors conceded they couldn’t support the charge, they wanted to dismiss the case without prejudice.
Which is lawyer language for reserving the right to come back and do the whole thing again.
The judge was having none of it.
In October, Judge Todd Edelman permanently dismissed the case, specifically expressing concern about exposing Hearn to further harassment through another meritless prosecution.
“Wait,” Donny asked. “They admitted he didn’t do it?”
“Essentially, Donny.”
“And they still wanted to be able to charge him again?”
“That’s what they asked for.”
“Why?”
Walter began explaining the importance of prosecutorial discretion, the preservation of evidence, and the federal government’s obligation to maintain the integrity of public monuments.
Donny listened for a moment.
“But the pool was already broken.”
Walter looked at his beer.
I have to admit, the kid had a point.
Here’s what troubles me. Hearn still had to deal with an arrest, criminal charges, lawyers, court appearances, and the possibility of a felony conviction.
The government had virtually unlimited resources to pursue the case.
Hearn had whatever was in his checking account.
Eventually, a judge told the government to knock it off.
Which is good.
But nobody gave Hearn his summer back.
The Enemies List Gets a New Entry
This week, the Justice Department tried something a little more ambitious.
Cassidy Hutchinson, the former aide to White House Chief of Staff Mark Meadows, had testified to Congress about Trump’s behavior during the January 6 attack on the Capitol.
Among other things, she recounted a story she’d been told about Trump becoming furious when his Secret Service detail refused to take him to the Capitol to join the crowd.
The specific account of Trump reaching for the steering wheel was disputed by people in the vehicle. Hutchinson had made clear she hadn’t witnessed it herself.
That’s an important distinction. Testifying about what someone told you is not the same thing as claiming you witnessed it firsthand.
Nevertheless, Trump and his allies have spent years calling Hutchinson a liar.
And now his Justice Department wanted to indict her.
Curiously, the investigation was handled through the Civil Rights Division, under Harmeet Dhillon.
The Civil Rights Division.
Yes, you read that right. And you might be wondering how the fuck that testimony to Congress fell into the lap of the Civil Rights division…
An office ordinarily associated with protecting Americans from abuses of power was now pursuing criminal allegations against someone who had provided politically damaging testimony about the president.
Maude observed that grand juries generally hear the prosecution’s case without a defense presentation. They also operate under a relatively modest probable-cause standard.
“They’re not particularly difficult to persuade,” she said.
“And?”
“They declined to indict her.”
Walter was getting agitated.
“WASHINGTON JURIES, DUDE! YOU KNOW WHAT KIND OF PEOPLE LIVE IN WASHINGTON!”
“Sure, Walter. Government employees, mostly.”
“EXACTLY!”
There are perfectly legitimate reasons to investigate someone who knowingly lies to Congress. But disputed testimony isn’t necessarily perjury, and politically inconvenient testimony certainly isn’t.
The grand jury apparently wasn’t persuaded that the government had established a sufficient basis to proceed.
Which is becoming something of a recurring problem for this Justice Department.
Two Sullivans Walk Into an Election
And then there’s Alaska.
Alaska has an incumbent Republican senator named Dan Sullivan. A real potted plant if there’s ever been one warming a seat in the Senate…
It also has another candidate named Daniel J. Sullivan, a retired teacher.
Two Dan Sullivans. One election.
If this sounds vaguely familiar, it should.
Republican operatives in Florida helped put a third-party candidate named Alex Rodriguez on the ballot in a 2020 state Senate race against Democratic incumbent José Javier Rodríguez.
The third-party Rodriguez received more than 6,000 votes.
The Democrat lost by 32.
The Republican operatives’ involvement became the subject of investigations and criminal proceedings. It was an unusually blatant example of a very old political trick: find somebody with a confusingly similar name, put him on the ballot, and hope enough voters get mixed up.
Dirty? Certainly.
Politically useful? It can be.
But now the trick appears to be threatening a Republican incumbent, and suddenly the Justice Department has developed a passionate interest in ballot clarity.
To be precise, there’s no established proof that Democrats recruited Alaska’s second Sullivan. He denies coordinating with them, and Mary Peltola’s campaign denies involvement.
I mean, it’s a really common name man.
But the Trump administration has sued to delay certification if the Republican incumbent loses under circumstances suggesting the other Sullivan’s votes might have made the difference.
Never mind that Alaska uses ranked-choice voting, which allows voters to rank both Sullivans and transfer their preferences as candidates are eliminated.
Never mind that Alaska’s own Republican-led state government is asking the court to dismiss the federal lawsuit.
The administration wants the ability to contest certification under a particular scenario in which its preferred candidate loses.
It’s a remarkable spectacle.
A dirty trick long familiar to American politics becomes an urgent federal concern precisely when the wrong people might benefit.
“WALTER,” I said, “this is like the other team taking a dive in a soccer match.”
“THEY WERE FOULED!”
“Nobody touched them.”
“THERE WAS CONTACT, DUDE!”
“He’s rolling around on the grass holding his ankle.”
“THAT’S HOW YOU GET THE REFEREE’S ATTENTION!”
And the Academy Award for Best Supporting Performance in an Imaginary Foul goes to...
Well, somebody else.
The Alaska case hasn’t been decided. And confusion between candidates with identical names is a genuine election-administration concern.
But there’s something revealing about the federal government’s proposed remedy being contingent on an unfavorable electoral outcome.
For years, we’ve heard warnings about the weaponization of government against conservatives. Some of those concerns deserve serious consideration. Prosecutorial power is dangerous precisely because the people wielding it can make life miserable for citizens who may ultimately be innocent.
You’d think people who spent years warning about that danger would be particularly sensitive to it.
Instead, some of the loudest advocates of freedom and limited government appear remarkably comfortable with federal power being directed at people the president dislikes.
Apparently, government tyranny is a matter of perspective.
The Government Always Gets Paid
After a while, I noticed something about these cases.
Everybody kept celebrating when the government lost.
The sandwich guy was acquitted.
The canoeist got his case thrown out.
The grand jury refused to indict Hutchinson.
And maybe the courts will eventually tell the Justice Department to take its two-Sullivan problem back to Alaska.
These are all encouraging developments. Grand juries, trial juries, judges, and state officials are demonstrating that the president’s wishes don’t automatically become legal outcomes.
But I kept thinking about the people on the other side of those proceedings.
Dunn lost his job.
Hearn spent months facing criminal charges over a defective swimming pool.
Hutchinson has had to contend with the threat of federal prosecution over testimony she gave four years ago.
The government doesn’t have to win to make their lives miserable.
That’s the part that gets lost when everybody celebrates another courtroom defeat for the administration.
The federal government has an enormous machine at its disposal. It can investigate, subpoena, arrest, charge, litigate, and appeal. It can keep people tied up in proceedings for months or years.
Defendants pay lawyers. They miss work. They lose sleep. Their families suffer. Their reputations get dragged through the mud.
Even when the case collapses, the ordeal has already happened.
And the people who initiated it generally collect their paychecks throughout.
I don’t know whether every one of these cases was brought with the deliberate intention of punishing someone through the process itself. Proving that would require knowing what the people making those decisions actually intended.
But the effect is difficult to miss.
And when the same government keeps pursuing questionable cases against people who have displeased the president, it’s reasonable to wonder whether winning the cases is really the principal objective.
“Do they get their money back?” Donny asked.
“What money?”
“The lawyers. The missed work. All that stuff. When the government loses, does it have to pay them back?”
“Generally not, Donny.”
“That’s not fair.”
“No, man. It isn’t.”
Walter started to object, then stopped.
The courts can refuse to convict. They can throw out charges. Occasionally, as in Hearn’s case, they can even prevent prosecutors from coming back for another round.
But courts don’t command the entire enforcement apparatus. They don’t decide which investigations get opened, which citizens get arrested, or how much of the government’s considerable resources get devoted to settling someone’s political grievances.
Those decisions sit largely with the executive branch.
And that’s where the danger lies.
Judges can stop particular abuses when cases reach them. They cannot, by themselves, make the people controlling the machinery stop trying.
It’s a little like a bowling league where the tournament officials keep throwing out Walter’s complaints, but Walter is allowed to file another one every time somebody steps up to the line.
Eventually, nobody wants to bowl anymore.
And maybe that’s the point.
I looked down at my drink. The ice had melted, the cream was separating, and the whole thing had become a rather unpleasant beige puddle.
Still, I figured I was getting off easy.
Nobody had indicted me for it.
The Dude abides.