D.C.'s U.S. Attorney Is a Menace to the First Amendment

Interim U.S. Attorney Ed Martin puts loyalty to Donald Trump ahead of loyalty to the Constitution.

Once back in office, President Donald Trump appointed Edward R. Martin Jr. to be the interim U.S. Attorney for the District of Columbia. (Last week, Trump made it official by nominating Martin to take up the role permanently.)

In his first few days, according to Spencer S. Hsu and Tom Jackman of The Washington Post, Martin "moved quickly to align the office with President Donald Trump's political views." He has also threatened federal investigations of people engaged in speech that is unequivocally protected by the First Amendment.

Last week, in an email to staff, Martin announced "Operation Whirlwind," which he characterized as an attempt to "stop the storm of threats against officials at all levels." In the course of that investigation, Martin has targeted public officials, including two federal lawmakers.

"I respectfully request that you clarify your comments from March 4, 2020," Martin wrote in a January 21 letter to Senate Minority Leader Chuck Schumer (D–N.Y.). "Your comments were at a private rally off the campus of the U.S. Capitol. You made them clearly and in a way that many found threatening….We take threats against public officials very seriously." (Martin sent further letters this month after Schumer did not reply.)

Schumer's comments came as the Supreme Court heard arguments in a case regarding abortion access in Louisiana. Speaking at the rally, addressing Justices Neil Gorsuch and Brett Kavanaugh, Schumer said, "You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

After rebukes from then–Senate Majority Leader Mitch McConnell (R–Ky.) and Chief Justice John Roberts, Schumer apologized, saying on the Senate floor the following day, "I should not have used the words I used….My point was there would be political consequences."

In a letter to Rep. Robert Garcia (D–Calif.), Martin asked for clarification on comments he made about Elon Musk's work with the Department of Government Efficiency (DOGE) during a CNN interview earlier this month.

"When asked how Democrats can stop Elon Musk," Martin wrote, "you spoke clearly: 'What the American public wants is for us to bring actual weapons to this bar fight. This is an actual fight for democracy.' This sounds to some like a threat to Mr. Musk - an appointed representative of President Donald Trump who you call a 'dick' - and government staff who work for him. Their concerns have led to this inquiry."

"It's not a close call: Neither statement meets the definition of a true threat," write JT Morris and Will Creeley of the Foundation for Individual Rights and Expression (FIRE). "Each is core political speech, fully protected by the First Amendment." They point out that while there are very narrow exceptions to the First Amendment, such as "true threats," neither lawmaker's statements even remotely rise to that level.

"Sure, saying justices will 'pay the price' and 'won't know what hit them' as a result of their decisions might be described by some as intemperate," Morris and Creeley add. "But in no way was it 'a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,' let alone grounds for a federal investigation, nearly five years after the fact."

Similarly, Garcia's comment "is plainly metaphorical, not literal," they continue. "No reasonable listener could conclude Garcia was donning brass knuckles and seriously expressing, over CNN's airwaves, an intent to beat up Elon Musk. Simply put, there's nothing to investigate."

Martin has continued to exhibit a flawed understanding of the First Amendment. On February 2, WIRED reported that Musk had enlisted a handful of very young engineers to work for DOGE. A user on X, the social media site Musk owns, posted the engineers' names, to which Musk replied, "You have committed a crime." The post was deleted and the account was suspended.

"I recognize that some of the staff at DOGE has been targeted publicly," Martin wrote in a February 3 letter to Musk. "At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. Any threats, confrontations, or other actions in any way that impact their work may break numerous laws….Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people."

Days later in a follow-up letter, Martin said he would "begin an inquiry" into threats against DOGE staffers: "If people are discovered to have broken the law or even acted simply unethically, we will investigate them and we will chase them to the end of the Earth to hold them accountable." (Emphasis in the original.)

"As an experienced attorney holding such an important public position, you must be aware that is it not a crime for anyone—whether WIRED journalists, X posters, or otherwise—to identify individuals openly conducting government work that is of the utmost public concern," charged a letter to Martin signed by more than 30 civil rights groups, including FIRE, Reporters Without Borders, and the Freedom of the Press Foundation. "Nor is it a crime to harshly criticize government employees and officials, even if transparency and criticism 'impede' their work."

"Additionally," the letter continued, "publicly offering the Office of the U.S. Attorney's services to Musk in the context of his asserting that protected expression is a criminal act is unbecoming of your public office and your duties as a public servant. Your oath is to the U.S. Constitution—including the First Amendment—not to President Donald Trump, Musk, or DOGE's desire to operate in secrecy and without criticism."

Martin clearly did not take the message to heart: "As President Trumps' [sic] lawyers, we are proud to to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put America first," he said this week in a post on X. Martin seems to be weighing in on the Trump administration's decision to bar the Associated Press from the Oval Office for refusing to refer to the Gulf of Mexico as the "Gulf of America"—which has nothing to do with the D.C. U.S. Attorney's duties.

Clearly, Martin has his boss's endorsement: Last week, Trump officially nominated him for D.C. U.S. Attorney in a permanent capacity, which requires Senate confirmation. But in his short time in office, Martin has shown that his loyalty to his boss runs as deep as his disregard for the First Amendment.