Left: New York Attorney General Letitia James speaks to the media, Nov. 6, 2023, in New York (AP Photo/Ted Shaffrey, File). Right: Attorney General Pam Bondi, speaks during a news conference with President Donald Trump in the James Brady Press Briefing Room at the White House, Monday, Aug. 11, 2025, in Washington (AP Photo/Alex Brandon).
A Missouri federal prosecutor brought in to aid rookie interim U.S. Attorney Lindsey Halligan in the Virginia bank fraud prosecution of New York Attorney General Letitia James raised eyebrows on Tuesday by filing a notice explaining why the DOJ wasn't following a court order to hand over discovery relevant to the defendant's vindictive prosecution claims before the AG files her motion to dismiss.
The five-page notice signed by Roger Keller Jr. told U.S. District Judge Jamar Walker that the Trump administration was blowing off the jurist's "instruction," deciding on its own that the order was "premature."
"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 notice said. "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.'"
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Keller did not stop there, stating 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," which was the order of operations in Kilmar Abrego Garcia's criminal case.
In other words, said Keller, James needs to state her case first, then the judge can rule on whether she's carried her burden, and then discovery would follow from there.
"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 concluded. "The Government is not required to produce vindictive/[selective] prosecution-related discovery until Defendant overcomes the presumption of the prosecution's lawfulness."
The "unusual" nature of the notice promptly caught attention and sparked criticism.
Ah, this isn't likely to work out well. (And who came up with that incomprehensible title for the document?) https://t.co/eO7ZHJvP5r
— Ed Whelan (@EdWhelanEPPC) November 4, 2025
Walker, a Joe Biden appointee, appears to have had a terse response to the DOJ's filing, reminding the government of the discovery plan in place and that motion practice is the ordinary way to handle disputes.
"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."
Walker previously ordered that James' motion to toss out the case on vindictive or selective prosecution grounds had to be filed by Friday.
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