In the ten days since Jeanine Pirro moved to dismiss the case against Davey Hearn, I’ve been crowing about a prediction I made two days after Hearn’s arrest: It would backfire.
The heavy-handed arrests themselves have gotten a lot of attention. Good luck to Jeanine Pirro attempting to prosecute these cases, not least because doing so would require calculating the value of a painted cover that degraded before the defendants came along. Prosecuting these cases would necessitate addressing whether Trump’s repairs did what they were supposed to, an inquiry Pirro will be loathe to do.
Sure enough, Pirro is clinging to her job after a motion to dismiss — blaming Department of Interior for DOJ’s own failures — also revealed that DOI knew the reflecting pool renovation was falling apart before Davey Hearn showed up.
I made a similar prediction about the SPLC indictment: that they would ask for proof of the way SPLC helped the FBI prevent terrorism, which had a likelihood of backfiring.
I suspect they’ll also do something that had a key role in the collapse of the case against Michael Sussmann: they can request the FBI’s own records of tips SPLC shared with the Bureau. When Sussmann got his own FBI and DOJ records, he was able to show:
- The DNS data that Durham had claimed was invented was, instead, data that the FBI itself relied on.
- Some of the things about which Durham invented conspiratorial explanations were clearly explained by Sussmann’s cooperation on the DNC investigation.
- Sussmann had provided similar tips to DOJ based on DNS traffic that Rodney Joffe had discovered.
- Joffe had a long and useful history of sharing valuable information with the FBI.
SPLC is similarly situated as Sussmann was: a long-term valued partner to the FBI, which had provided important tips that helped FBI prevent crimes, just as ADL’s tip, had it been prioritized, could have prevented the Evergreen shooting.
At the very least, such discovery will show that the FBI used SPLC tips, knowing how they were gathered, and found them important tools to prevent political violence. But given the slovenly nature of this DOJ and the rush with which Kash and Todd Blanche rolled out a gift for Stephen Miller, it is exceedingly likely there will be bigger surprises about how FBI used or misused SPLC tips in such discovery, including failing to use them to prevent serious crime, just like Kash failed to prevent the Holly shooting.
On Friday, Judge Emily Marks denied SPLC’s motion to dismiss for selective and vindictive prosecution. In spite of some commentary on the opinion, it applies precedent as it has traditionally been applied, before the President turned the entire DOJ into his weaponization machine. As such it reminds me of the opinions by two Trump appointees ruling against Hunter Biden’s twice claims of selective and vindictive prosecution. The politicization was crystal clear. But it was also exercised through prosecutors who could claim they’re not biased against the defendant.
Just a few hours after Marks released her opinion, SPLC filed a motion to compel demanding that DOJ cough up records of FBI’s past reliance on information from the organization.
The SPLC’s repeated efforts to provide federal law enforcement agencies with evidence generated by the informant program and used by those agencies used to investigate, prosecute, and, on repeated occasions, convict individual members of racist groups engaged in criminal activity are fundamentally inconsistent with the government’s core theory: that the SPLC was “engaged in the active promotion of racist groups.” Such evidence is plainly favorable to the defense and must be produced. See, e.g., Kyles v. Whitley, 514 U.S. 419, 441-43 (1995) (evidence that another individual gave inconsistent accounts of the crime in a possible effort to frame the defendant was favorable to the defense and should have been disclosed); Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (prosecution’s failure to disclose that another individual admitted to killing victim constituted suppression of evidence favorable to the accused); United States v. Severdija, 790 F.2d 1556, 1560 (11th Cir. 1986) (written recording of defendant’s statement at time of event “constitute[d] favorable and material evidence wholly consistent with appellee’s defense” and thus satisfied the Brady standard).
Despite the fact that evidence showing that the SPLC cooperated with law enforcement by providing information about the members of these groups is material and exculpatory, the government has apparently taken no steps over the past three months to search for or obtain this exculpatory information from its files or disclose it to the defense.1
1 Shortly after arraignment on the original indictment on May 7, 2026, the government produced three categories of information it deemed exculpatory: 1) a letter from SPLC donors stating that they believed the use of their funds to support the informant program was proper and consistent with their expectations; 2) a recorded interview of a bank employee which included her statement that she was fully aware that the bank accounts the SPLC opened in the names of “fictitious entities” (ECF 51, Introduction) were in fact utilized by the SPLC to protect the safety of those individuals; and 3) Bank-1’s records and email communications confirming the SPLC’s connection to the alias bank account names that were associated with the SPLC, the bank’s knowledge of that association, and its knowledge of the purpose of having the alias names on the accounts. In total, the government produced just 20 pages of supposed Brady material and none of it is responsive to the three requests at issue here.
As it describes, even before the indictment SPLC reminded DOJ of three instances where DOJ relied on information from SPLC to investigate or disrupt terrorists: An Atomwaffen extremist who was charged in Nevada, a Vanguard America member was prevented from getting security clearance and detained, and the extensive information shared in advance of Unite the Right.
An exhibit to the motion lists 10 more examples — including at least one SPLC informant that the FBI made their own informant — they’ve learned about during the investigation. These are heavily redacted, but (in addition to the three prior examples) the motion describes:
Remember: Back in April, SPLC had to ask Judge Marks to get Todd Blanche to stop lying about SPLC’s usefulness to the Feds, when he claimed,
There’s no information that we have that suggests that the money they were paying to these informants and these members of these organizations, they then turned around and shared what they learned with law enforcement.
Blanche mostly equivocated, but he hasn’t repeated the claim.
The FBI learned most of this information before Blanche’s April 21 comments. In one case, it is information (again, apparently about an SPLC informant the FBI itself recruited) going back to 2020.
And DOJ won’t turn the information over.
Indeed, the prosecutor on this case suggested that if Judge Marks orders DOJ to turn over this information, they’ll just declare at least some of it is classified.
In fact, after the Court issued its pre-trial scheduling Order in this case (ECF 107), Assistant U.S. Attorney Kevin Davidson emailed defense counsel and advised that, as it concerns any motion to compel, if the prosecution “[is] ordered to turn over FBI documents related to F’s that haven’t already been turned over . . . some documents will almost certainly be classified” “at a certain level.” This is the first time the government has raised the specter of classified documents possibly existing as it relates to law enforcement material involving any F’s, and would be encompassed in and by the SPLC’s document requests described in this motion.
At this point, it’s hard to tell whether DOJ is refusing to share this information because they:
And while Judge Marks’ decision on the selective and vindictive prosecution claim is solidly within precedent if not reality, withholding all the materials that SPLC would need to mount a defense would not be.
The Michael Sussmann case is not the only high profile precedent for that. As SPLC cites by referring to just one of the many Proud Boy informants who were referenced or testified in the Proud Boys’ case, “Aaron,” the Proud Boys got such information, even in a prosecution that they insist was unfair.
And yet Blanche’s DOJ insists on treating the SPLC worse than they treated the now — pardoned or dismissed — far right extremists who led the attack on the Capitol on January 6.
The post Todd Blanche Is Hiding How SPLC Warned FBI about a Murder-for-Hire Scenario appeared first on emptywheel.