CREATORS: One of the Worst Court Decisions in History

Matthew T. Mangino
CREATORS
May 12, 2026

The U.S. government detained and deported 25-year-old Brian Jose Morales Garcia to Mexico in April. That doesn't sound like breaking news in 2026, except Garcia was born in Denver.

Garcia told The Texas Tribune that he explained to police and immigration agents that he was a U.S. citizen and that he had a copy of his birth certificate and his Social Security card at his home in Austin, Texas. It didn't matter; he was shipped to Mexico.

Garcia's name may not long be remembered, but the government's disregard for individual rights and contempt for human rights will not soon be forgotten.

Some would like to pretend, or maybe don't know, that this conduct is not unprecedented. There was a time in this country when the government incarcerated thousands and thousands of American citizens who were not accused of a crime with the imprimatur of the highest court in the land.

After the bombing of Pearl Harbor by Japan on Dec. 7, 1941, former President Franklin Roosevelt signed Executive Order 9066, authorizing the U.S. military to remove over 120,000 people of Japanese descent, the majority of whom were American citizens, from their homes and force them into American prison camps throughout the United States.

After Pearl Harbor, Japanese American Fred Korematsu tried to join the military and was turned away because of his ancestry. He was later fired from his job for the same reason.

Korematsu was arrested for failing to evacuate to a prison camp. He was convicted and Korematsu and his family were interned in Topaz, Utah, where the government had set up one of 10 prison camps.

Korematsu appealed his case all the way to the U.S. Supreme Court. The Supreme Court found "That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor and several thousand evacuees requested repatriation to Japan."

As a result, in December 1944, the high court ruled 6 to 3 against Korematsu, declaring that the incarceration was not caused by racism — it was justified as a "military necessity."

Justice Robert Jackson, who would later prosecute war criminals in Nuremberg, Germany, complained about the lack of any evidence to justify the incarceration, writing: "the Court for all time has validated the principle of racial discrimination ... The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

It turns out that Justice Jackson was right. It wasn't just that the government didn't have evidence; the evidence that was presented was knowingly false and misleading. The real evidence was hidden from Korematsu, his lawyers and the Supreme Court.

According to the Fred T. Korematsu Institute, as the Department of Justice began searching for evidence to support the Army's claims that Japanese Americans were a threat, they "found precisely the opposite — that J. Edgar Hoover of the FBI, the FCC, the Office of Naval Intelligence and other authoritative intelligence agencies categorically denied that Japanese Americans had committed any wrongdoing. These official reports were never presented to the U.S. Supreme Court, having been intentionally suppressed."

Ultimately, after nearly 50 years, Korematsu's conviction was overturned based on the misconduct of the government's attorneys. In a statement as important today as it was in 1942, Korematsu told the court after his conviction was overturned, "According to the Supreme Court decision regarding my case, being an American citizen was not enough. They say you have to look like one ... I thought that this decision was wrong and I still feel that way. As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without a trial or a hearing."

The Korematsu decision was the law of the land for 64 years. The decision was generally considered one of the worst decisions in American history. The decision was formally overturned in 2018.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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NYPD no longer reviewing all stop and frisk encounters as required by court order

More than a decade ago, a federal court found that the New York City Police Department had been unconstitutionally stopping and frisking Black and Hispanic residents. The ruling laid out required fixes, including something quite basic: The NYPD would review officers’ stops to make sure they were legal.

But for most of the past three years the nation’s largest police department failed to do that for a key part of an aggressive and politically connected unit as it stopped New Yorkers, reported ProPublica.

The lack of court-required review was recently discovered and disclosed by the NYPD’s federal monitor, which oversees the department’s compliance with the 2013 stop-and-frisk decision.

In all, more than 2,000 stops weren’t properly reviewed, according to data from the monitor.

The failure involved the Community Response Team, or CRT. A ProPublica investigation last year found that the unit had often sidestepped oversight as it went after so-called quality-of-life issues, such as unlicensed motorbikes and ATVs. The team’s tactics, including high-speed car chases, and its opaque operations disturbed some NYPD officials, but the unit expanded significantly amid the support of then-Mayor Eric Adams.

The lack of reviews is part of a pattern of the NYPD failing to deliver on its obligations under the long-standing court order. Officers across the department, for instance, have often not documented stops.

The importance of reviews is particularly critical for aggressive teams like the CRT, which has a record of unconstitutional stops. It has also drawn hundreds of civilian complaints since it was created three years ago. More than half of the officers assigned to the team have been found by the Civilian Complaint Review Board to have engaged in misconduct at least once in their career, according to a ProPublica analysis of board data last year. That compares with just a small fraction of NYPD officers overall.

Prior to its latest discovery, the federal monitor had raised alarms about the unit’s behavior. A report last year said that only 59% of stops, searches and frisks by CRT officers were lawful, a far worse rate than the NYPD’s patrol units. Nearly all of the stops involved Black or Hispanic residents.

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Snyder: A new vision of how criminal JUSTICE might work

 Rachel Louise Snyder writes in The New York Times:

The avenues that lead women to jail tend to differ from those for men. Criminologists have long understood this. What happens with women is often a layering of trauma and abuse. They might have economic instability or mental health challenges that allow them to be exploited by violent partners. They might exchange sex for food or housing, and then get arrested for any number of infractions: prostitution, trespassing, drugs. The criminal-justice researcher Stephanie Kennedy calls these “crimes of survival.”

These avenues have contributed to shocking rates of incarceration for women: Between 1978 and 2015, the number of women in state prisons has grown by 834 percent. The overwhelming majority are primary caregivers. When a woman goes to prison, the downstream effects can be staggering: children might enter foster care, itself often a traumatic system. Aging parents might be put into subpar facilities, or have to find alternative care and housing. All too often, the cost of such upheaval results in a cycle of crime, incarceration, addiction, poverty and broken families.

Courts have long struggled with how to respond. The question is: Can we create a system of justice that looks wholly different from what most of us imagine when it comes to crime and punishment, while still demanding accountability from perpetrators? What if court were a place that afforded someone the opportunity for a complete reset, with entryways to jobs, housing, education? What if instead of punishing people who’ve been broken many times over, we helped to heal them?

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Bail reform being dismantled across the country

According to the  Marshal Project, in 2021 the Illinois' legislature passed a bill abolishing cash bail and replacing it with a system in which prosecutors can seek detention based on public-safety or flight-risk findings. At the time, the rationale for the change was largely built on questioning the logic of wealth-based detention. Commenters argued that a rich person should not have a special right to leave jail compared to a poorer person accused of the same crime.

Earlier this month, after the killing of a Chicago police officer whose alleged shooter had been released on electronic monitoring while awaiting trial in another case, Republican lawmakers renewed calls to change the law, arguing in part that the state needed to come into line with President Donald Trump’s executive order targeting “cashless bail.” But the plans that have been floated have not sought to restore money bail, but rather proposed new means of revoking pretrial release, or creating a presumption of detention for people with violent convictions.

Similar legislative efforts to increase pretrial detention outright have also gained momentum across the country. In New Hampshire, a rollback of the state’s earlier bail reforms lowered the standard prosecutors must meet to deny bail, and state officials have pointed to rising jail populations as proof the new approach is working. Later this month, voters in Alabama will decide whether to expand the list of charges for which judges can deny bail. Similarly, in November, voters in Indiana will vote on a constitutional amendment that would dramatically expand judges’ ability to hold people pretrial if they determine that no conditions of release could reasonably protect public safety.

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Once vaunted DOJ needs incentives to find new talent

 

The Justice Department is taking a new tack to overcome hurdles in attracting qualified legal talent and to prevent current lawyers from leaving: offering signing and retention bonuses throughout the Civil Division, reported Bloomberg Law.

New vacancy postings show signing bonuses of $25,000 are newly available to staff offices investigating youth transgender treatments and litigating the Trump administration’s immigration agenda.

The financial enticements are an apparent first for a department that in previous years would be inundated with resumes from lawyers willing to take significant salary reductions compared to private sector legal practice. Padding lawyers’ biweekly paychecks signals a division growing more desperate to stave off further departures of valuable legal minds, including those who’ve expressed discomfort with defending the president’s policies from a slew of lawsuits.

Further, the head of the Civil Division—which plays a crucial role advancing and protecting the president’s policies in court—informed all his attorneys Monday that they’ll begin receiving a “retention incentive allowance” ranging from around $60 to $220 every pay period through Thanksgiving, according to an internal email reviewed by Bloomberg Law.

Trial attorney vacancies posted on DOJ’s website Tuesday for the Civil Division’s recently created enforcement and affirmative litigation branch describe in bold print “a signing bonus of up to $25,000" that may be awarded to “well-qualified candidates.” The job advertisements, which would support a DOJ team that’s been repeatedly losing in court over efforts to subpoena pediatric hospitals for sensitive data on minors prescribed drugs for gender dysphoria, instruct applicants that time is of the essence.

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Autocracy Watch: Undermining the Integrity of the midterm elections

Perhaps nothing better reflects the breakdown of the guardrails that thwarted President Trump’s rashest impulses in 2020 than his creation last fall of a special White House post reinvestigating his loss to Biden, reported ProPublica. 

In December 2020, just days after AG William Barr rebuffed Trump’s Antrim County claims, lawyers in the White House counsel’s office helped prevent the president from heeding activists’ call to essentially declare martial law to seize voting machines. This multihour shouting and cussing match has been called the craziest meeting of the first Trump administration.

But the lawyer whom Trump hired in 2025 as his director of election security and integrity, Kurt Olsen, had worked to overturn Trump’s loss in court in 2020 and was later sanctioned by judges, including for making baseless allegations about Arizona elections.

Olsen’s work in the second Trump administration has breached the firewall between the White House and DOJ officials, established after Watergate to prevent law enforcement officers from making decisions based on political pressure, said Gary Restaino, a former U.S. attorney in Arizona.

“This is not a constitutional or even a statutory requirement,” Restaino said, “but it’s a democracy requirement to make sure that citizens throughout America understand that decisions about life and liberty are being made in an objective and consistent manner.”

In a previously unreported series of events, around the end of 2025, Olsen flew to Georgia to meet with Paul Brown, the head of the FBI’s Atlanta field office, according to people familiar with the matter. 

Olsen wanted the FBI to seize 2020 ballots from Fulton County, a Democratic stronghold, and gave Brown a report he claimed would justify the extraordinary action. Brown and his team emphasized to Olsen that any investigation his team did would be independent and fair. 

When Brown and his team examined the report, they found that Georgia’s election board had already looked into its allegations, dismissing many altogether, and concluding that others came down to human error, not criminal wrongdoing. The report had been assembled by a longtime ally of Olsen’s and participant in the Election Integrity Network who had a history of discredited claims, ProPublica has reported.

Based on their own investigation, Brown’s team submitted an affidavit to their superiors at DOJ that did not make a strong enough case to move forward with what Olsen wanted.

Soon after, Brown was offered a choice: retire or be moved to a new office, people with knowledge of the exchange told ProPublica. 

Olsen did not respond to requests for comment.

An FBI spokesperson said that Brown “elected to retire” and that its “work in the election security space is entirely consistent with the law.”

Brown’s ouster after refusing to carry out the seizure of 2020 election materials has been reported, but Olsen’s involvement and the details of their interactions leading to Brown’s retirement have not been previously disclosed. 

With Brown gone, the case moved ahead under his replacement. 

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CREATORS: If at First You Don't Succeed, Indict Again

Matthew T. Mangino
CREATORS
May 5, 2026

The acting Attorney General of the United States, Todd Blanche, has announced the indictment of former Director of the FBI, James Comey. In any other administration, this would be huge news.

America reacted to the indictment with a yawn. This is the second time, and the second attorney general to appear at a press conference and announce the indictment of Comey. The first indictment didn't go so well for the Trump administration.

Days before Comey's first indictment, he was singled out by name in a social media post wherein President Donald Trump appeared to appeal directly to the Department of Justice to bring charges against Comey and complained that investigations into his political enemies had not resulted in criminal charges.

Former Attorney General Pam Bondi announced the first indictment based on allegations that Comey lied to Congress five years prior during remote testimony about Russian interference in the 2016 election. A federal judge dismissed the case, finding that the acting U.S. Attorney who sought the indictment was unlawfully holding her position and lacked authority to do so.

If possible, the second indictment is more suspect than the first. Comey was investigated last year over an Instagram post of a photograph of seashells in the sand on some sunny beach. The shells were aligned in the figures of "86 47." With the image, Comey wrote: "Cool shell formation on my beach walk."

According to NBC News, "the term '86' is used in the restaurant industry, and it can informally mean 'to get rid of.' The number '47' was thought to be related to Trump, the 47th president.

The indictment claims that a "reasonable recipient who is familiar with the circumstances" would interpret the seashell image as "a serious expression of intent to do harm to the President of the United States."

This past Sunday, the acting Attorney General appeared on NBC's "Meet the Press," where he gave "assurances" that not everyone who posts the "86 47" message will be charged with threatening the president.

"That phrase is used constantly," according to Blanche, " ... every one of those statements do not result in indictments." Apparently, only avowed enemies of President Trump will face indictment for posting "86 47" online.

Let's start our examination of this indictment with the Fox News comments of George Washington Law School professor Jonathan Turley. If you don't know Turley, let's just say you won't find his name on a Trump enemy list, making his comments all the more surprising.

Turley told Fox, "If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said. "In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a constitutional challenge."

This time, Comey is charged with making a threat against the president and transmitting a threat in interstate commerce. Those charges require the government to prove beyond a reasonable doubt that the former FBI director "knowingly and willfully" issued a threat to "take the life of" the president.

The Conservative podcaster Glenn Beck said recently, "If the seashell thing is the best the D.O.J. has on Comey, we're in trouble."

Alexis Loeb, a former DOJ deputy chief, told The Hill that the term "86" is open to different interpretations. "In the typical case — again, because the government's burden is to prove its case beyond a reasonable doubt — you typically wouldn't see threats that are readily open to non-violent interpretations."

The pattern of multiple indictments against Comey is certainly an issue that Comey's defense team will raise. There is clearly an opportunity to argue vindictive prosecution or the weaponization of the Justice Department to settle a score with one of the president's enemies.

However, it may never get to that — Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University who specializes in First Amendment law, told CNN, "This is not going anywhere. This is clearly not a punishable threat."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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