{"id":160018,"date":"2026-08-10T14:39:09","date_gmt":"2026-08-10T22:39:09","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/08\/10\/trump-judge-rules-splc-cant-prove-vindictive-prosecution-without-evidence-which-she-also-wont-let-them-see\/"},"modified":"2026-08-10T14:39:09","modified_gmt":"2026-08-10T22:39:09","slug":"trump-judge-rules-splc-cant-prove-vindictive-prosecution-without-evidence-which-she-also-wont-let-them-see","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/08\/10\/trump-judge-rules-splc-cant-prove-vindictive-prosecution-without-evidence-which-she-also-wont-let-them-see\/","title":{"rendered":"Trump Judge Rules SPLC Can\u2019t Prove Vindictive Prosecution Without Evidence, Which She Also Won\u2019t Let Them See"},"content":{"rendered":"

Before the DOJ brought criminal charges against the Southern Poverty Law Center, FBI Director Kash Patel called the civil rights organization \u201ca partisan smear machine\u201d and accused the entity of defaming<\/em> hate groups. Because Kash Patel has never met a political investigation he couldn\u2019t 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 \u201cone of [her] \u2018friends.’\u201d And Donald Trump told 60 Minutes that the prosecution was a product of the SPLC being \u201ca total scam run by the democrats.\u201d After moving forward with a flimsy indictment that failed to properly state the elements of a crime<\/a>, the DOJ put together a superseding indictment that somehow made the case weaker and then leaked it to right-wing media<\/a>.<\/p>\n

On Friday, Chief Judge Emily Marks of the Middle District of Alabama denied the SPLC\u2019s motion<\/a> 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:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

If you\u2019re interested, she probably has a bridge she could sell you too! You could probably get financing for that purchase from Wells Fargo\u2026 which is coincidentally the bank she bought shares in weeks after being assigned a Wells Fargo case<\/a>.<\/p>\n

The judge is correct that parties shouldn\u2019t 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\u2019s at least worth having a look at the paper trail that inspired the case.<\/p>\n

Marks, however, closed off that cache of evidence so ferociously you\u2019d think it was the Epstein files.<\/p>\n

On the plus side, the judge rejected the DOJ\u2019s proposed vindictive prosecution standard, which claimed the doctrine only reaches cases brought to retaliate against procedural rights exercised in the course of litigation \u2014 appealing a conviction, refusing a plea \u2014 and not substantive ones like, say, publishing things the government dislikes. The Government\u2019s position that \u201cthe general exercise of public speech\u201d doesn\u2019t qualify as a right you can be punished for is, she wrote, \u201csimply wrong.\u201d <\/p>\n

But as she widened the door on that end, she welded it shut on the other:<\/p>\n

\n

The Constitution vests \u201c[t]he executive Power . . . in a President of the United States of America,\u201d U.S. CONST. art. II, \u00a7 1, and charges him to \u201ctake Care that the Laws be faithfully executed,\u201d id. \u00a7 3. \u201cThe Executive Branch\u2014not the Judiciary\u2014makes arrests and prosecutes offenses on behalf of the United States.\u201d<\/p>\n<\/blockquote>\n

Despite laying out the contours of the conservative movement\u2019s 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.<\/p>\n

\n

When evaluating the SPLC\u2019s motion to dismiss the indictment, the Court is mindful that the \u201ccentral figure\u201d in any prosecution is the prosecutor. Blackledge<\/em>, 417 U.S. at 27. So it is the motivations of the United States Attorney\u2019s Office for the Middle District of Alabama that are central and not, say, those of members of Congress.\u00a0<\/p>\n<\/blockquote>\n

And what of the director of the federal government\u2019s 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\u2019t finally filed until April. <\/p>\n

Or the president telling the media that the case was brought to punish Democrats? <\/p>\n

\n

President Trump\u2019s rhetoric is (rather famously) wide-ranging, and he has undoubtedly been critical of the SPLC. However, the SPLC fails to establish that President Trump\u2019s 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.<\/p>\n<\/blockquote>\n

What happened to \u201cl\u2019executive branch, c\u2019est moi,\u201d 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\u2019s 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.<\/p>\n

\n

History confirms that prosecutors are entitled to a \u201cpresumption of regularity,\u201d meaning that, \u201cin the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.\u201d\u00a0<\/p>\n<\/blockquote>\n

Federal judges across the country have built an expansive record of this Department of Justice forfeiting the presumption of regularity<\/a>, up to and including losing vindictive prosecution cases<\/a>. 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.<\/p>\n

To be fair, Marks does not fully pretend prosecutors work in isolation. She acknowledges the \u201cstalking horse\u201d theory \u2014 that a prosecutor could be \u201cprevailed upon to bring the charges by another with animus\u201d \u2014 and even drops a footnote helpfully informing us that \u201c[a] stalking horse is, apparently, \u2018a horse or a figure like a horse behind which a hunter stalks game.’\u201d Thanks! She then explains what it takes to prove such a \u201cfigure like a horse,\u201d 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.<\/p>\n

Alas, the problem with requiring testimony from an insider is that you need to let the defendant get testimony from an insider<\/em>. When Marks writes that the SPLC failed to \u201cprovide evidence that Mr. Davidson was directed to bring the present charges by a superior with a vindictive motive,\u201d 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.<\/p>\n

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<\/a> that, according to whistleblower information provided to the Judiciary Committee<\/a>, Singh \u201cyou ordered the U.S. Attorney\u2019s Office for the Middle District of Alabama, to rush through the indictment of the SPLC, despite serious concerns about the strength of the case.\u201d Singh is described inside the building as Blanche\u2019s enforcer. <\/p>\n

Neither Singh\u2019s name, nor the whistleblower report, appears in the opinion.<\/p>\n

Then there\u2019s Carey<\/em>, 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\u2019s motives, observing that \u201c[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.\u201d Marks quotes that line approvingly and then footnotes it into irrelevance, because Carey<\/em>\u2018s prosecution was \u201cexpressly predicated upon, rather than merely subsequent to, protected activity.\u201d<\/p>\n

Except the record here includes a presidential memorandum instructing the Joint Terrorism Task Force to investigate \u201cinstitutional . . . funders\u201d who \u201caid and abet\u201d political violence, followed a few weeks later by an FBI incident report on the SPLC that reads:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

That is the FBI identifying constitutionally protected publication as the fraud<\/em>. We\u2019re not stretching to reach \u201cexpressly predicated upon\u201d here.<\/p>\n

It\u2019s worth noting how the Carey<\/em> case ended. After Judge Boasberg granted the inquiry, the DOJ moved to dismiss the charges the week its discovery obligations came due<\/a>. It\u2019s almost as though the mere prospect of transparency sends these thugs scurrying. The Carey<\/em> case should stand for the proposition that the DOJ should always be asked to show its work because the odds are it\u2019s properly terrified<\/em> of what that will reveal.<\/p>\n

Marks closes by warning that the court \u201ccannot license a fishing expedition based on innuendo or speculation,\u201d and that \u201c[i]f the presumption of regularity means anything,\u201d it counsels against filling in the blanks. What is regular about any of this?!? I\u2019d 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\u2019re doing this as retribution, thank you for your attention to this matter!<\/em> <\/p>\n

As Lord Chief Justice Hewart put it, \u201cjustice must not only be done, but must be seen to be done.\u201d For Chief Judge Marks, we must settle for the reverse \u2014 so long as nobody is permitted to look, justice is done.<\/p>\n

(Opinion on the next page in all its circular glory\u2026)<\/em><\/p>\n

Earlier<\/strong>: Trump DOJ Indicts Civil Rights Group For Working To Take Down Hate Groups<\/a>
New SPLC Indictment Has Us Wondering If The DOJ Is Trying To Lose<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n<\/p>\n

The post Trump Judge Rules SPLC Can\u2019t Prove Vindictive Prosecution Without Evidence, Which She Also Won\u2019t Let Them See<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

Before the DOJ brought criminal charges against the Southern Poverty Law Center, FBI Director Kash Patel called the civil rights organization \u201ca partisan smear machine\u201d and accused the entity of defaming<\/em> hate groups. Because Kash Patel has never met a political investigation he couldn\u2019t 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 \u201cone of [her] \u2018friends.’\u201d And Donald Trump told 60 Minutes that the prosecution was a product of the SPLC being \u201ca total scam run by the democrats.\u201d After moving forward with a flimsy indictment that failed to properly state the elements of a crime<\/a>, the DOJ put together a superseding indictment that somehow made the case weaker and then leaked it to right-wing media<\/a>.<\/p>\n

On Friday, Chief Judge Emily Marks of the Middle District of Alabama denied the SPLC\u2019s motion<\/a> 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:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

If you\u2019re interested, she probably has a bridge she could sell you too! You could probably get financing for that purchase from Wells Fargo\u2026 which is coincidentally the bank she bought shares in weeks after being assigned a Wells Fargo case<\/a>.<\/p>\n

The judge is correct that parties shouldn\u2019t 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\u2019s at least worth having a look at the paper trail that inspired the case.<\/p>\n

Marks, however, closed off that cache of evidence so ferociously you\u2019d think it was the Epstein files.<\/p>\n

On the plus side, the judge rejected the DOJ\u2019s proposed vindictive prosecution standard, which claimed the doctrine only reaches cases brought to retaliate against procedural rights exercised in the course of litigation \u2014 appealing a conviction, refusing a plea \u2014 and not substantive ones like, say, publishing things the government dislikes. The Government\u2019s position that \u201cthe general exercise of public speech\u201d doesn\u2019t qualify as a right you can be punished for is, she wrote, \u201csimply wrong.\u201d <\/p>\n

But as she widened the door on that end, she welded it shut on the other:<\/p>\n

\n

The Constitution vests \u201c[t]he executive Power . . . in a President of the United States of America,\u201d U.S. CONST. art. II, \u00a7 1, and charges him to \u201ctake Care that the Laws be faithfully executed,\u201d id. \u00a7 3. \u201cThe Executive Branch\u2014not the Judiciary\u2014makes arrests and prosecutes offenses on behalf of the United States.\u201d<\/p>\n<\/blockquote>\n

Despite laying out the contours of the conservative movement\u2019s 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.<\/p>\n

\n

When evaluating the SPLC\u2019s motion to dismiss the indictment, the Court is mindful that the \u201ccentral figure\u201d in any prosecution is the prosecutor. Blackledge<\/em>, 417 U.S. at 27. So it is the motivations of the United States Attorney\u2019s Office for the Middle District of Alabama that are central and not, say, those of members of Congress.\u00a0<\/p>\n<\/blockquote>\n

And what of the director of the federal government\u2019s 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\u2019t finally filed until April. <\/p>\n

Or the president telling the media that the case was brought to punish Democrats? <\/p>\n

\n

President Trump\u2019s rhetoric is (rather famously) wide-ranging, and he has undoubtedly been critical of the SPLC. However, the SPLC fails to establish that President Trump\u2019s 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.<\/p>\n<\/blockquote>\n

What happened to \u201cl\u2019executive branch, c\u2019est moi,\u201d 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\u2019s 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.<\/p>\n

\n

History confirms that prosecutors are entitled to a \u201cpresumption of regularity,\u201d meaning that, \u201cin the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.\u201d\u00a0<\/p>\n<\/blockquote>\n

Federal judges across the country have built an expansive record of this Department of Justice forfeiting the presumption of regularity<\/a>, up to and including losing vindictive prosecution cases<\/a>. 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.<\/p>\n

To be fair, Marks does not fully pretend prosecutors work in isolation. She acknowledges the \u201cstalking horse\u201d theory \u2014 that a prosecutor could be \u201cprevailed upon to bring the charges by another with animus\u201d \u2014 and even drops a footnote helpfully informing us that \u201c[a] stalking horse is, apparently, \u2018a horse or a figure like a horse behind which a hunter stalks game.’\u201d Thanks! She then explains what it takes to prove such a \u201cfigure like a horse,\u201d 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.<\/p>\n

Alas, the problem with requiring testimony from an insider is that you need to let the defendant get testimony from an insider<\/em>. When Marks writes that the SPLC failed to \u201cprovide evidence that Mr. Davidson was directed to bring the present charges by a superior with a vindictive motive,\u201d 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.<\/p>\n

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<\/a> that, according to whistleblower information provided to the Judiciary Committee<\/a>, Singh \u201cyou ordered the U.S. Attorney\u2019s Office for the Middle District of Alabama, to rush through the indictment of the SPLC, despite serious concerns about the strength of the case.\u201d Singh is described inside the building as Blanche\u2019s enforcer. <\/p>\n

Neither Singh\u2019s name, nor the whistleblower report, appears in the opinion.<\/p>\n

Then there\u2019s Carey<\/em>, 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\u2019s motives, observing that \u201c[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.\u201d Marks quotes that line approvingly and then footnotes it into irrelevance, because Carey<\/em>\u2018s prosecution was \u201cexpressly predicated upon, rather than merely subsequent to, protected activity.\u201d<\/p>\n

Except the record here includes a presidential memorandum instructing the Joint Terrorism Task Force to investigate \u201cinstitutional . . . funders\u201d who \u201caid and abet\u201d political violence, followed a few weeks later by an FBI incident report on the SPLC that reads:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

That is the FBI identifying constitutionally protected publication as the fraud<\/em>. We\u2019re not stretching to reach \u201cexpressly predicated upon\u201d here.<\/p>\n

It\u2019s worth noting how the Carey<\/em> case ended. After Judge Boasberg granted the inquiry, the DOJ moved to dismiss the charges the week its discovery obligations came due<\/a>. It\u2019s almost as though the mere prospect of transparency sends these thugs scurrying. The Carey<\/em> case should stand for the proposition that the DOJ should always be asked to show its work because the odds are it\u2019s properly terrified<\/em> of what that will reveal.<\/p>\n

Marks closes by warning that the court \u201ccannot license a fishing expedition based on innuendo or speculation,\u201d and that \u201c[i]f the presumption of regularity means anything,\u201d it counsels against filling in the blanks. What is regular about any of this?!? I\u2019d 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\u2019re doing this as retribution, thank you for your attention to this matter!<\/em> <\/p>\n

As Lord Chief Justice Hewart put it, \u201cjustice must not only be done, but must be seen to be done.\u201d For Chief Judge Marks, we must settle for the reverse \u2014 so long as nobody is permitted to look, justice is done.<\/p>\n

(Opinion on the next page in all its circular glory\u2026)<\/em><\/p>\n

Earlier<\/strong>: Trump DOJ Indicts Civil Rights Group For Working To Take Down Hate Groups<\/a>
New SPLC Indictment Has Us Wondering If The DOJ Is Trying To Lose<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

1<\/strong> 2<\/a>Next \u00bb<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Before the DOJ brought criminal charges against the Southern Poverty Law Center, FBI Director Kash Patel called the civil rights organization \u201ca partisan smear machine\u201d and accused the entity of defaming hate groups. Because Kash Patel has never met a political investigation he couldn\u2019t take credit for, the FBI went so far as to issue […]<\/p>\n","protected":false},"author":3,"featured_media":160019,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-160018","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/08\/Headshot-300x200-WlRyFG.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/160018","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=160018"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/160018\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/160019"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=160018"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=160018"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=160018"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}