The Department of Justice has come up with a fairly unique litigation strategy in the paper-thin case against New York Attorney General Letitia James: antagonize the judge overseeing the case. I know, BOLD!
U.S. District Judge Jamar Walker ordered the government to provide discovery to James’s legal team related to their vindictive/selective prosecution argument. But instead of getting their documents in order, the DOJ went all Bartleby, the Scrivener, saying they prefer not to.
Yesterday, the government filed “Notice Of Reasons For Not Providing Pre-Vindictive/Selective Prosecution Motion Related Discovery.” Which was just a fancy way of saying the DOJ was going to go all Eric Cartman and do what they want and ignore the judge. The filing, signed by Roger Keller Jr., brought in from the Missouri office to give an assist to the woefully inexperienced interim U.S. Attorney Lindsey Halligan, is a wild romp (for a court document) that attempts to impose the government’s will on the court.
“In the October 24, 2025, proceeding, the Court instructed the United States of America (the Government) to provide Defendant with vindictive/selective prosecution-related discovery before she filed any such motion. The Court’s instruction is premature as the Government bears no such obligation until a defendant ‘overcomes a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. This standard is a ‘rigorous’ one.’”
And there’s more! Keller continues that the law “does not ‘allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant … overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct.”
“The Order to produce vindictive/selective prosecution-related discovery before Defendant filed her motion relieved her of her obligation to overcome the prosecution’s presumptive lawfulness with ‘evidence tending to show the existence of prosecutorial misconduct,’” the filing reads. “The Government is not required to produce vindictive/[selective] prosecution-related discovery until Defendant overcomes the presumption of the prosecution’s lawfulness.”
What an absolutely insane thing to read in a DOJ filing! No motion to reconsider the court’s order, just a bold proclamation — nah, we’re not doing that. What a thoroughly odd response. Don’t believe me? Well, let’s check in with a conservative legal commentator.
When the far-right legal strategy is so far afield you have Ed Whelan — the man who will gladly peddle conspiracy theories for the cause — balking, methinks you’ve gone too far.
Judge Walker certainly thinks so.
“The Court has received the government’s filing regarding discovery on the issue of vindictive and/or selective prosecution. The Order on the parties’ jointly recommended discovery plan governs discovery in this case,” the judge said. “To the extent any discovery dispute arises, the parties may address it in a motion.”
Looks like he’ll be keeping a pretty tight leash on the parties.
Read the full filing below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
The post DOJ Gives Judge Heads Up They Have Zero Plan To Actually Listen To Him appeared first on Above the Law.
The Department of Justice has come up with a fairly unique litigation strategy in the paper-thin case against New York Attorney General Letitia James: antagonize the judge overseeing the case. I know, BOLD!
U.S. District Judge Jamar Walker ordered the government to provide discovery to James’s legal team related to their vindictive/selective prosecution argument. But instead of getting their documents in order, the DOJ went all Bartleby, the Scrivener, saying they prefer not to.
Yesterday, the government filed “Notice Of Reasons For Not Providing Pre-Vindictive/Selective Prosecution Motion Related Discovery.” Which was just a fancy way of saying the DOJ was going to go all Eric Cartman and do what they want and ignore the judge. The filing, signed by Roger Keller Jr., brought in from the Missouri office to give an assist to the woefully inexperienced interim U.S. Attorney Lindsey Halligan, is a wild romp (for a court document) that attempts to impose the government’s will on the court.
“In the October 24, 2025, proceeding, the Court instructed the United States of America (the Government) to provide Defendant with vindictive/selective prosecution-related discovery before she filed any such motion. The Court’s instruction is premature as the Government bears no such obligation until a defendant ‘overcomes a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. This standard is a ‘rigorous’ one.’”
And there’s more! Keller continues that the law “does not ‘allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant … overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct.”
“The Order to produce vindictive/selective prosecution-related discovery before Defendant filed her motion relieved her of her obligation to overcome the prosecution’s presumptive lawfulness with ‘evidence tending to show the existence of prosecutorial misconduct,’” the filing reads. “The Government is not required to produce vindictive/[selective] prosecution-related discovery until Defendant overcomes the presumption of the prosecution’s lawfulness.”
What an absolutely insane thing to read in a DOJ filing! No motion to reconsider the court’s order, just a bold proclamation — nah, we’re not doing that. What a thoroughly odd response. Don’t believe me? Well, let’s check in with a conservative legal commentator.
When the far-right legal strategy is so far afield you have Ed Whelan — the man who will gladly peddle conspiracy theories for the cause — balking, methinks you’ve gone too far.
Judge Walker certainly thinks so.
“The Court has received the government’s filing regarding discovery on the issue of vindictive and/or selective prosecution. The Order on the parties’ jointly recommended discovery plan governs discovery in this case,” the judge said. “To the extent any discovery dispute arises, the parties may address it in a motion.”
Looks like he’ll be keeping a pretty tight leash on the parties.
Read the full filing below.
gov.uscourts.vaed.583341.46.0Download
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].
