There’s a general reason and specific reasons why people should care about Bill Essayli’s response to David Huerta’s motion to compel the government to turn over metadata associated with the evidence obtained against him.
Generally, DHS has permitted — encouraged, seemingly — DHS officers to use their own personal phones and to use Signal. And whether officers are using their own or government phones, DHS ditched its archiving software last year; it is relying on officers’ taking screen caps of relevant communications.
The Department of Homeland Security has stopped using software that automatically captured text messages and saved trails of communication between officials, according to sworn court statements filed this week.
Instead, the agency began in April to require officials to manually take screenshots of their messages to comply with federal records laws, citing cybersecurity concerns with the autosave software.
[snip]
The policy expects officials to first take screenshots of the text messages on their work phones, send it to their work email, download it on their work computers and then run a program that would recognize the text to store it in searchable formats, according to the department’s guidance submitted to the court.
Under the Federal Records Act, government agencies are required to preserve all documentation that officials and federal workers produce while executing their duties. They have to make federal records available to the public under the Freedom of Information Act unless they fall under certain exemptions.
And we’ve seen AUSAs rely on officers themselves to review their own devices for communications covered by discovery.
In the LaMonica McIver case, for example, officers didn’t turn over exculpatory texts until Judge Jamel Semper ordered supplemental discovery.
It wasn’t until November 26 — almost two weeks after Judge Jamel Semper ruled on McIver’s immunity bid — that DOJ turned over texts copying this video, observing that it looked bad.
5 The Spotlight News video came to light during the course of supplemental briefing only because it was referenced in a May 9, 2025, text message that the government finally turned over on November 26, 2025. HSI special agents exchanged the video in that May 9 conversation, where the agents also acknowledged that the evidence in the video was “bad.” Ex. Y at 2-3. The prosecution team therefore clearly knew about the text messages (and thus the video) when disclosures were due in July.
McIver’s lawyer, Paul Fishman, says he will address this delayed discovery in a follow-up letter.
Inexplicable delays in the government’s discovery productions mean that the record continues to be developed.1
1 Congresswoman McIver will detail these shortcomings in a forthcoming letter to the Court.
But the implication of this is clear.
DOJ was never going to turn over these discussions — conducted on Signal — until Judge Semper ordered this supplemental briefing. They were sitting on evidence that shows that before DHS first started calling McIver’s actions an assault on May 10 (McIver had to ask to have these Tweets taken down, but the timeline is in her motion to do so), they had shared video noting that their own actions looked bad.
Consider how this policy would work in the case of Jonathan Ross’ killing of Renee Good. Given that Ross’ video of the killing was released unofficially, it seems likely he was using his own phone that day. Particularly given the impunity with which Pam Bondi has treated him so far, there’s no reason to believe he’d retain anything incriminating himself, much less people like Greg Bovino or Stephen Miller.
It would take someone actually seizing his phone to see if there are incriminating details about his own motives.
That’s what David Huerta is asking for: that DOJ provide the metadata associated with both the videos and texts messages surrounding the day.
The metadata Mr. Huerta requests here—for the agents’ text messages already produced in this case,10 and for the photos and videos taken of the scene on June 6 and already produced—is critical and material to his ability to adequately prepare for his defense in this case. It is also relevant to understanding the sequence of events that occurred on June 6, both the actions of protestors and Mr. Huerta at the scene (e.g., shown in photographs and video recordings) and the agents’ statements to one another and activities that day as reflected in the text messages. Lastly, the metadata information affiliated with iPhone photos and messages is routinely stored in the ordinary course for such ESI, and would be straightforward to extract from the agents’ cellphones or devices. Moreover, producing the photos and videos in a native, load-ready format along with a corresponding index is routinely done in criminal cases by the Department of Justice.
10 Because the agents’ text messages and the photos and videos have already been collected by the government in this case and produced to the defense, there can be no dispute about the government’s “possession, custody, or control” of that material and/or those devices, as the government already had, and likely continues to have, access to them in preparing their discovery productions.
Even if these witnesses — HSI Supervisory Agent Ryan Ribner and Undercover Officer Jeremy Crossen — were reliable, this would be a reasonable ask. While the bulk of the video in discovery is unavailable publicly, the texts are difficult to unpack, and because Ribner “wrote the arrest report … from memory,” there are time discrepancies between the narrative he tells in the arrest report and the texts, to say nothing of additional discrepancies in Crossen’s countersurveillance report.
But these witnesses are not reliable. Crossen, for example, told interviewers that he was using his personal phone because his government phone “was not working at the time of the incident.”
TFO Crossen stated he used his personal phone to document the events which was turned over to an HSI Computer Forensics Agent (CFA) to download and preserve evidence.
TFO Crossen stated his government issued phone was not working at the time of the incident.
Except his texts show he switched phones during the incident (his testimony is so inconsistent I actually misunderstood whose phone this was on first read).
Plus, he told Ribner had had a couple hundred videos. The discovery includes far short of that.
And that’s just one reason to question Crossen’s candor when he told investigators, “he did not alter or delete any videos.” There are other holes in what appears in exhibits (this may be available in videos): he told investigators that somebody — I think he means protestors — called out “he’s a union member,” about Huerta, which is … not how I’d expect people in left-leaning politics to describe a senior SEIU official. The specific description of Huerta would go to the denials of everyone involved that they assaulted Huerta because he is a senior union official.
And Crossen described not filming the most important footage for this case, purportedly showing Huerta standing right in front of the van, rather than to its side, where the DHS goons assaulted him.
TFO Crossen recalled that immediately before 0:10 seconds before starting video 2790, he observed HUERTA standing in front of the van, closer to the center of the van. He stated that he did not film that particular moment because there were a lot of distractions “from persistent instigators” including HUERTA.
And that’s why Essayli’s argument — that DOJ can provide Electronically Stored Information in whatever format they want so long as it maintains the data integrity — falls short.
In relevant part, the ESI protocol recommends that (1) after conferral, any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, and reasonably limit costs, and, if possible, conform to industry standards for the format;
Crossen’s testimony, along with problems in the testimony of others, raises more than enough reason to question the integrity of the data as provided. A Cellebrite extraction, which is what Huerta is asking for, would show whether there were gaps in production.
Essayli is also citing in poor faith to misrepresent Huerta’s argument (and in his motion to dismiss, switched between PDF and document page numbers, further obscuring his references). He repeatedly claims Huerta just wants DOJ to create a searchable index.
To the extent defendant is requesting the government create an index of the metadata in a searchable format, see Dkt. 58 at 3:1-5, that request is beyond the government’s discovery obligations.
[snip]
Instead, defendant’s true complaint is that the government has not created a searchable index of the photos’ and videos’ metadata. (Dkt. 58 at 3.)
But the cited passage (this is on document page 2) reveals they’re asking for far more than that.
The screenshot PDF images of the messages do not contain any metadata affiliated with the messages or the source iPhones, and no corresponding index was provided to defense counsel with this information. Notably, the phone numbers belonging to the sender(s) and recipient(s) of the messages, or even the iPhone contact cards, were not included in the production or visible in the screenshots. Nor do the iMessage screenshots contain a timestamp for each message; while some messages do have a timestamp at the top (sometimes owing to a gap in time), many of the messages contain no timestamp whatsoever.6 Additionally, because of the nature of the initial production (individual PDFs named only by “IMG” file number), there is no way in which to tell who the owner and custodian (e.g., which agent) is of each set of messages and each phone. Additionally, due to the screenshot nature of the messages, certain messages are cut off and the messages were not all provided in chronological order to Mr. Huerta. Finally, the iMessage screenshots do not contain any geolocation or coordinate information, if any is available, as is often part of cellphone metadata or any “native” file.
There are a whole bunch of reasons this is necessary to reconstruct what happened.
But in DHS’ new parallel evidentiary role, it’s not clear whether Huerta — or any of the other people accused of assault using evidence from officers’ personal cell phones — will have access to that.
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https://www.emptywheel.net/wp-content/uploads/2026/01/Screenshot-2026-01-11-at-6.14.25-PM.png5421372emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2026-01-15 14:25:012026-01-15 14:25:01DOJ Continues to Let DHS Pick and Choose Screen Shots Pertaining to Their Assaults
F[ucking] A[sshole] Bill Essayli submitted his response to David Huerta’s motion to dismiss his information (see this post for an explanation of why I’m calling Essayli, “F[ucking] A[sshole]”).
Here’s a summary of the argument: Huerta intentionally blocked the only available entrance of the search (but not arrest) location, he did this via means other than standing in front of a van, and encouraged others to do so, which led (after Ryan Ribner assaulted Huerta) LAPD to declare a riot.
During the execution of a search warrant, defendant intentionally blocked the only available entrance of the Warrant Location. He did this by sitting down and walking in circles directly in front of the entrance of the Warrant Location, making it impossible for any law enforcement vehicles to enter or exit, without defendant moving. In addition, he also successfully encouraged other individuals to join him in blocking the entrance of the Warrant Location in the same manner eventually contributing to LAPD declaring a riot at the Warrant Location. As defendant concedes in the Motion, defendant was told explicitly he “shouldn’t block or impede the [law enforcement vehicle] that would be arriving.” (Dkt. 55 at 14.)
Even this passage conflates two things Huerta did — sit, and picket, before the van showed up — with blocking it.
But the most interesting part of the passage is that word “available,” which is doing a lot of work. Along with the filing, DOJ submitted seven exhibits: three compilations of video (filed manually, so we don’t get them), and the interview reports from HSI Special Agent J Smith (who seems to have overseen the search), a second interview with the van driver, Brian Gonzalez, an interview with HSI Special Agent Andre Lemon, who helped Gonzalez change a tire, and a picture of the tire that got slashed while or shortly after Huerta was being assaulted. These late interviews appear to be an attempt to salvage the case with witnesses besides Ryan Ribner and Carey Crook, the guys who assaulted Huerta. DOJ is spinning a new story that because of what happened with Huerta — that is, because Ribner, especially, assaulted the SEIU CA President — HSI had to flee the site of the search hours earlier than they otherwise would have, which limited the number of undocumented workers they could detain, which wasn’t supposed to be the point of the search.
As Lemon described, they fled out a back gate.
SA Lamon stated they loaded the vehicle with “Some of the detainees and snuck out of the back gate”.
You see, from the moment I read this line in Ribner’s affidavit supporting the arrest warrant, I was pretty sure there was another gate ready to open, just like Chekov’s gun, a plot point that must be resolved.
Our trusty cyber expert also suggests that the van entering the gate of the facility — the predicate for making Huerta move and therefore the predicate to tackling him, injuring him, and then arresting him — may not, after all, be the only entrance. He describes that “as far as I was aware,” it was.
As far as I was aware, this gate was the only location throughwhich vehicles could enter or exit the premises.
I wonder whether his awareness has changed over the weekend.
Ribner said a bit more about Chekov’s gate in the arrest report (and also revealed that he left in a caravan via “the secondary gate,” which he did not otherwise explain).
ERO SDDO C C approached SSA Ribner to discuss a plan to safely escort an ERO USG vehicle into the facility. SSA Ribner provided the same information to SDDO C as he did to the DEA agents regarding subjects potentially impeding/blocking agents and USG vehicles. SDDO Cr asked if there was another entrance/exit to the facility; SSA Ribner related that he did not have knowledge of a secondary entrance/exit. SSA Ribner related that agents would need to go outside of the gate and encircle the sides of the van to make sure it isn’t blocked and/or damaged. SDDO C asked how agents would move the pickup truck [playing loud music] from the driveway. SSA Ribner advised that he would verbally request the driver to move the truck. [my emphasis]
DOJ didn’t bother to ask Crook whether he knew of a second gate last August, as it became clear neither his nor Ribner’s testimony was credible. But his interview report describes that Crook, “recalled himself and GS Ribner coming up with a plan for the main gate to slightly open to allow the van to enter the property and then close it after the van entered,” just before he made a claim — that Huerta had “straddle[d] the hood of the van” and “ma[de] his body an X,” a claim no other witnesses nor the video corroborated.
The “main gate.”
You only call something a main gate if you know there’s another.
Brian Gonzalez — the guy who drove the van and all of a sudden remembered David Huerta being close to it after he got a permanent job at CBP and had a follow-up call, probably the guy DOJ hopes will be their star witness given problems with calling Ribner or Crook to the stand –was not asked about any gates in his first interview (or the follow-up, where his memory about Huerta evolved).
But in his interview last week, he was asked about the gate.
Before I explain what he said, note that the F[ucking] A[sshole] Bill Essayli confessed in his response that earlier — right up until the moment David Huerta arrived, Essayli seems to suggest — DHS had no problem getting cars and vans through the entrance where protestors were.
Shortly thereafter, between 10:30 a.m. and 11:45 a.m. demonstrators began to show up at the Warrant Location and congregated near the entrance to the front gate. During this initial period, before defendant arrived, the demonstrators did not block the driveway and repeatedly allowed vehicles to enter and exit the Warrant Location through the front gate. (Ex. 1 at 7:30-7:35; 8:16-8:27; Ex. 2 at 4:25-5:25, 7:49-7:53, 8:22-8:26, 9:45-9:48, 11:47-11:58.)
There was a white van captured in one of Jeremy Crossen’s photos, showing a time stamp of 11:10 (it’s possible the van in one or both of these pictures is the one driven by Gonazalez; per Google his drop-off at the Federal Building was a 9-minute drive away).
Crossen’s countersurveillance report describes what may be this van — at around that time, a van and a beige car were able to pass through the gate because someone asked nicely for the protestors to move and they complied.
At approximately 11:25 a.m., The southwest gate of the business opened, and a beige Toyota sedan and a white ICE ERO transport van approached the south apron of the driveway. As the gate opened, UHM-1 ran from where he was standing, just east of the apron. UHM-1 initially stood center driveway of the apron, blocking the egress of the car and van while filming. An unidentified agent standing just north of the gate ordered UHM-1 to move and he subsequently complied.
Half an hour later, per Crossen’s report, a mini-convoy came up at a time when Huerta was legitimately in front of the gate, if we can believe any of these reports (we can’t).
At approximately 11:54 a.m., A black Government Jeep Grand Cherokee, along with several other government vehicles, approached the apron of the driveway from E. 15 Street. The vehicle th remained stopped as both the gate was closed and standing protesters were blocking the apron of the driveway, preventing the vehicle from pulling closer to the south gate for entry into the business. At this time, TFO Crossen observed HUERTA, LENEHAN, UHF-8 and UHM-7 sit down on the ground, approximately two to four feet from the closed gate. TFO Crossen both audibly heard and video recording HUERTA motioning with his left hand with an “enviting motion” to the crowd around him, yelling “Sit down! Sit Down!” repeatedly. HSI Supervisory Special Agent (SSA) Ryan Ribner approached the closed gate from the other side and informed the seated protesters they were impeding the vehicles and needed to move. Upon hearing this, HUERTA, while still seated, “scooted” forward, where he was now seated on his knees, right against the gate. HUERTA ignored SSA Ribner’s orders to move because they were impeding law enforcement vehicles attempting to enter the business. HUERTA yelled to SSA Ribner, “What are you doing! What are you doing! I can’t hear you through your fucking mask! How are you keeping me safe by doing this!” SSA Ribner, calmly again admonished HUERTA that he was impeding law enforcement vehicles from entering.
Those vehicles do not appear in Ribner’s report, as far as I can tell, at all.
There’s no resolution to what happened to those vehicles, though. They disappear from the narrative by the time the van driven by Gonzalez shows up, which is when seven people move to block the van, and oh by the way, so does David Huerta, added as an afterthought in Crossen’s report.
At approximately 12:15 p.m., a white Law enforcement van pulls up to the apron of the driveway, just south of the main south gate with its siren and emergency lights activated. As the vehicle pulled up, agents opened the south gate, and several agents walked from inside the property compound to the apron of the driveway to assist with moving protestors so the emergency vehicle could gain entrance. As most of the crowd moved for the loud audible siren and emergency police lights, LENEHAN, GARDUNO, CUERVO, ALTAMIRANO, UHM-7, and an unidentified Hispanic female, later identified as Edith DIAZ (DOB: /1977; COC UNK) and UHM-8, who was now out of his unoccupied vehicle, which was playing loud music and blocking the apron, ran closer to and in front of the law enforcement vehicle to block it.. HUERTA also moved toward the emergency van with activated lights and siren and stood approximately two feet from the front bumper, directly in front of it, ignoring the emergency lights, activated siren and ignoring agents orders to move.
Gonzalez stated that he called Enforcement and Removal Operations (ERO), Supervisory Detention and Deportation Officer (SDDO) Carey Crook when he was about a block away from the location.
Gonzalez stated that he drove past the crowd at the front gate and asked SDDO Crook if he could come through the back.
Gonzalez stated that SDDO Crook informed him that the back gate was locked and they didn’t have the keys to the lock.
At noon, when Ribner was staging a confrontation with the people he believed were “vicious, horrible people,” he didn’t know there was a second gate.
But somehow Gonzalez, who found out just that morning he’d be doing this drive and had already done one pick-up that day, knew there was one. Not only Gonzalez knew of it. But Crook — whom Ribner claims asked him, Ribner, if there were a second gate — not only knew of one, but knew it was locked.
When they needed to get by protestors before Ribner had assaulted David Huerta, they asked nicely and everyone complied.
When they needed to get by protestors after Ribner had assaulted David Huerta, they knew exactly how to do that: go out the back door gate, which it turns out they had keys to.
Update: On Thursday, Huerta asked to delay the trial until May. I suspect this reflects a bid by DOJ to implicate Huerta — possibly even to supersede him with a felony — for the punctured tire.
b. Defendant contends that the omnibus opposition and the recent discovery productions of the government raise issues that warrant additional investigation and the need for additional pretrial filings. Moreover, defendant anticipates making additional discovery requests based on and in response to the recent productions of by the government that raise new trial issues.
c. In light of the foregoing, counsel for defendant also represents that additional time is necessary to confer with defendant, conduct and complete an independent investigation of the case, conduct and complete additional legal research including for potential pre-trial motions, review the discovery and potential evidence in the case, and prepare for trial in the event that a pretrial resolution does not occur. Defense counsel represents that failure to grant the continuance would deny them reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
Timeline
June 6: Arrest
9:00 AM: HSI task force officer (and Inglewood cop) Jeremy Crossen arrives under cover
9:20: Agents start executing search
9:57: Crossen interacts with Asian woman
10:26: Crossen interacts w/Hispanic protestor, claims he is monitoring the police
11:07: Crossen sees pick-up without plates whose Hispanic driver films
11:19: Crossen describes a Hispanic woman with a neck gaiter; his report provides background on a Kids of Immigrants sweatshirt she wears; start time of alleged criminal conduct
11:25: A sedan enters the gate; after an agent instructs those filming it to step away, they do; Crossen texts Ribner,
11:31: A Hispanic woman whom Crossen IDs by name shows up, makes phone calls
11:36: Crossen describes a white woman by name, describes that she masked as the crowd grew
11:37: Crossen describes the Hispanic leader of ACCE Action, Council Member Jose Delgado, show up, make calls
11:49: Crossen claims he sees Huerta walk up
11:51: A white woman from Tenants Union starts yelling obscenities
11:53: Ribner instructs Crossen to focus on Huerta
11:54: Huerta and others sit in front of the gate
12:01 PM: Ribner leaves the property and assaults Huerta [note his report timeline goes haywire in here]
12:00-12:09: Crossen texts Ribner
12:15: Crossen claims van arrives (his description describe others who were in front of the van, then says Huerta also was)
12:15: Ribner calls 911 (claiming this is about pepper spray)
12:18: Crossen describes a scrimmage line
12:20-12:40: Discussions about Huerta’s attempt to call his attorney
12:30: LAFD responds; Huerta asks to be brought to the hospital; Crossen describes LAFD arrival this way:
At approximately 12:28 p.m., TFO Crossen observed a Los Angeles City Fire truck with activated emergency lights and loud audible siren, attempting to gain entry to the business, still being blocked by protestors, to render aid for HUERTA, inside the business, who had been exposed to OC Spray, during his arrest.
12:40: Ribner reports arrest to CACD US Attorney office
12:42: Ribner tells Crossen his personal phone is out of battery, asks him to use his government one
12:47: Ribner admits he used pepper spray
1:05: Ribner speaks to USAO again
1:30: Huerta taken to hospital w/agent in car
2:45: Ribner asks Crossen for pictures of Huerta
Unmarked time: Mayor Bass shows up to hospital room; they ask her to leave (and she does)
9:12: Crossen sends last clip from videos to Ribner (the discovery turned over provides nowhere near the “4 hours” or “100 videos” that Crossen told Ribner, five hours earlier, that he had taken (though the defense did not include all the texts in their exhibit)
June 17: Date created for one photo provided in discovery
June 19: Initial incident report; Ribner would later (in his September 10 interview) admit he wrote the report from memory and simply did not “recall that he told HUERTA, ‘You are not impeding’. He does not know why he did not include that statement in his report and agrees that his statement could sound exculpatory.”
https://www.emptywheel.net/wp-content/uploads/2026/01/Screenshot-2026-01-14-at-6.23.01-PM.png9821346emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2026-01-14 14:08:252026-01-16 07:10:55Chekhov’s Back Door Gate Appears in the David Huerta Assault Saga
In this post I described three scripts that different political groups use to describe our current situation. Trump apologists say that we are in a constitutional moment, roughly defined as a period in which the American people update the Constitution by insisting on changing prior interpretations. This script is based on a theory proposed by Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School. Ackerman’s idea is laid out in his 1991 book We The People: Foundations, and is discussed in the second of his Oliver Wendell Holmes Lectures of 2006. It’s gained prominence since the 2024 election and the wholesale assault on our governmental system by Trump. For example, the New York Times did a podcast featuring long-time SCOTUS reporter Adam Liptak (link is to transcript).
I was dismissive of this idea, partly because I’d never heard of it, and partly because it seems weird that anything about Trump would fit into a responsible theory of the Constitution. And, of course it doesn’t fit: Trump apologists have to distort and prune the theory to make seem vaguely plausible.
The dualist Constitution and the Constitutional Moment
Ackerman calls his theory a dualist constitution. He describes the basic ideas. In our system of representative democracy, power flows from the people. Some decisions are made directly by the people, such as elections. Spme are made by the government directly, for example rules and executive orders; and some indirectly through representatives of the people, such as laws and appointments to certain bodies. Thus, a dualist constitution.
With respect to constitutional issues, the people can act in two ways. They can amend the Constitution following Article V. This hasn’t been done in a long time, and may no longer be possible. The second way is the relevant part of Ackerman’s theory.
Most of the time the people do not engage in constitutional debates, or even extended policy debates. We are consumed by the demands of our private lives, work, family, community, and that’s as it should be. These are the blessings of liberty. But occasionally some event occurs that requires the people to pay attention and make a decision. I’ll focus on the Civil Rights Era as in the Lectures.
In the Lectures Ackerman says:
In past work, I have shown how key constitutional transformations in American history have passed through a distinctive institutional dynamic, consisting of five phases: signaling, proposing, triggering, ratifying, and finally consolidating the new principles supported by the American people. Fn omitted.
Very briefly, signalling is the recognition by a significant institution or large group of people that change is needed and must be considered, and the issue is forced to the forefront. Proposing is the stage at which the issue is debated and specific proposals are made. Triggering is the adoption of new legislation or a change made by SCOTUS, or new rules adopted by the federal government. Ratification takes place as the moving group wins elections. Consolidation occurs as the new principle is embedded in confirming cases and bureaucratic practice.
In the case of the Civil Rights Era, Brown v. Board was the signal, the marches, demonstrations, citizen organizing, and agitation that followed are the proposing stage, The trigger was the Civil Rights Act of 1964. The ratification was that year’s landslide victory of Lyndon Johnson over Barry Goldwater along with huge majorities in Congress. The consolidation phase took place as the Voting Rights Act and other legislation passed with substantial bipartisan support. Richard Nixon continued and reinforced enforcement of those laws, and SCOTUS upheld the new laws and allowed powerful judicial enforcement.
Ackerman calls examples like the Civil Rights Era Constitutional Moments. The Trump crowd claims that this is one.
Applying the Ackerman theory
It’s difficult to diagnose the current state of a society, as Lescek Kolakowski tells us. At the time Ackerman was writing his book, the Civil Rights Era was 25 years in the past. His analysis in the Lectures was written 40 years later, which allows for at least some historical perspective, We are operating in real time, so I think it’s not safe to apply historical theories blindly; caution is essential.
Even so it seems obvious that the Trump crowd has nothing like the record of the Civil Rights Era to support a claim that we are in a Constitutional Moment. Trump never won a majority in an election, let alone a landslide victory like Johnson’s.
The Republicans, now firmly under Trump’s control, have never won a substantial majority in the House, and their fragile majority was won through computerized racial and political gerrymandering sanctioned by the Republican SCOTUS. The Republicans have a small majority in the Senate, but the Republican Senators represent fewer people than the Democratic Senators.
Trump has no popular support for his policies. His agenda is set out in Project 2025, and it was so toxic he disavowed it during the campaign. His favorability numbers are and have been negative. Polling consistently shows that a substantial majority of Americans loathe his policies. The brutality of his immigration enforcement, his attacks on the judiciary, his refusal to comply with the Epstein Transparency Act, his stupid tariffs, cutting research in violation of appropriation laws, and his foreign wars, none of them have even close to majority support.
I do not think the MAGA movement is a grass roots expression of the will of the American people. There are always racists and fascists, and authoritarians and anti-Semites, and religious crackpots, but the vast majority of Americans mostly ignore them. Trump’s not-crazy voters are largely influenced by demagogues, liars, and grifters, funded by filthy rich right-wingers with astonishing views about the rest of humanity. Without them, he’s a blow-hard flogging fraudulent universities.
The slightly bigger picture
Ackerman is a firm believer in the idea of a living Constitution. To put it very simply, the Constitution is a mix of organizational and operational rules; and a set of aspirations. The former include the establishment of the three branches, allocation of powers, and election rules. The latter are mostly contained in the Preamble and the Bill of Rights. Almost all of it is open to some degree of interpretation. The Supreme Court arrogated to itself the power to make final decisions on the meaning of both as[ects of the Constitution.
But in the end, the power of government lies in the people. If SCOTUS gets it wrong, the people force change. That’s one way to understand the Civil Rights Era: the absurdly limited interpretation of the Reconstruction Amendments in the Slaughterhouse Cases and the Civil Rights Cases established racial segregation as our baseline, and overturning it took decades and deaths.
Another of Ackerman’s examples is the New Deal. For decades SCOTUS struck down almost all progressive legislation regulating business and empowering unions, in such cases as Lochner v. New York. But the Depression was such a hideous problem that SCOTUS capitulated.
That’s not likely to happen given the relationship between Trump and SCOTUS Chief John Roberts. The front page pic of Trump and Roberts at the 2025 State of the Union address is the lead pic in this article at Law & Crime, titled “Chief Justice Roberts just handed Trump another win on foreign aid cuts after admin complained of judge’s ‘brinkmanship’”. The title and the pic are a not-so-subtle sneer at Roberts’ claims of independence from Trump.
Electoral victories won’t fix that.
==========
Photo credit: Leah Millis/Pool via AP
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https://www.emptywheel.net/wp-content/uploads/2026/01/trump-roberts-sotu.jpg6271200Ed Walkerhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngEd Walker2026-01-13 22:23:212026-01-13 22:23:21This Is Not A Constitutional Moment
On Sunday, the politically astute Fed Chair Jerome Powell posted a video describing subpoenas he received on Friday, which he claimed (credibly) were part of an effort to attack the independence of the Fed.
This new threat is not about my testimony last June or about the renovation of the Federal Reserve buildings. It is not about Congress’s oversight role; the Fed through testimony and other public disclosures made every effort to keep Congress informed about the renovation project. Those are pretexts. The threat of criminal charges is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the President.
This is about whether the Fed will be able to continue to set interest rates based on evidence and economic conditions—or whether instead monetary policy will be directed by political pressure or intimidation.
The statement (and what has since been reported as a good deal of political maneuvering) set off a number of counterreactions that could prove really costly to Trump — and the United States as a whole.
While financial markets recovered from their initial shock by the end of the day (but not before gold hit a new record price), that may only continue as the political pushback continues.
Not all the markets were impervious to Powell’s harassment by DOJ goons. The dollar, which is down 8.3 percent over the past year—that is, more or less since Trump took office—dropped steeply Monday morning before rising a bit in the afternoon. The yield on 30-year Treasury bonds, which has been rising since October, spiked Monday morning. That’s a sign that fewer people wish to buy them. Why purchase dollars or Treasury bonds when the president is so determined to lower their value that he’s willing to throw the Fed chair, who’s been lowering interest rates lately but not fast enough to suit Trump, in jail? Over the course of the afternoon, however, bond yields fell, leaving them about where they closed Friday.
Gold, meanwhile, jumped nearly 3 percent. As I’ve explained previously, the rising price of gold is the surest sign that the United States economy is headed in a terrible direction. It’s a vote of no-confidence in the dollar. As I explained in October, investors call rising gold prices “debasement trade,” which means money is fleeing from assets in which the market is losing faith—in this case, the dollar and Treasury bonds. The higher the price of gold rises, the more debased our currency and our nation’s debt become.
More problematic for Trump, a number of Republican members of Congress — starting with some of the usual rebels, like Thom Tillis and Lisa Murkowski (who described in a Tweet that she had spoken with Powell)…
Sen. Thom Tillis, R-N.C., said Sunday he will block any Trump appointees to the central bank, including for the new chair, in light of revelations over the weekend that the Justice Department is investigating Powell for potential perjury charges.
“If there were any remaining doubt whether advisers within the Trump Administration are actively pushing to end the independence of the Federal Reserve, there should now be none. It is now the independence and credibility of the Department of Justice that are in question,” Tillis said in a statement.
“I will oppose the confirmation of any nominee for the Fed — including the upcoming Fed Chair vacancy — until this legal matter is fully resolved,” he added.
… But extending t0 loyalists like French Hill, John Thune, and John Kennedy — complained about the disruption caused by the news, including to a crypto bill Congress has long been chasing.
inancial Services Chair French Hill, who called Powell a “man of integrity” and said the investigation threatened “sound monetary policy decisions.” Senate Majority Leader John Thune, meanwhile, called for the probe to be “resolved quickly.”
“I want to see [the Fed] operate in an independent way free of politics,” he added.
[snip]
While Sen. Kevin Cramer (R-N.D.) called Powell a “bad” Fed chair, he added, “I do not believe, however, that he is a criminal.”
Sen. John Kennedy (R-La.), a Banking Committee member, said if administration officials thought Powell had committed perjury, then they needed to back up the accusations. He added, “I would be stunned if he had done anything wrong.”
“We need this like we need a hole to the head,” Kennedy said, warning of a possible spike in interest rates as markets lose faith in Fed independence.
Meanwhile, Scott Bessent — who has managed to stave off a great deal of stupidity worse than his own in the last year — worried not just about the effect this would have on the markets, but on his ability to stack the Fed with people who wouldn’t be independent.
A perturbed Treasury Secretary Scott Bessent told President Trump late Sunday that the federal investigation into the Federal Reserve chair “made a mess” and could be bad for financial markets, two sources familiar with the call told Axios.
Why it matters: Bessent’s worries about the financial fallout were somewhat realized Monday, when the dollar dropped as bond yields and the price of gold rose amid worries about political interference in the Fed.
“The secretary isn’t happy, and he let the president know,” one source familiar with Bessent’s call to Trump told Axios.
That is, Pirro’s investigation of Powell may threaten precisely the purpose that she — or whoever’s brilliant idea all this was — thought she’d serve, giving Trump more power over the Fed.
As I keep saying, Donald J. Trump has done a piss-poor job in choosing his political martyrs this term.
And all that’s before you consider how Powell’s statement will add to Lisa Cook’s credibility before the Supreme Court next week, when she claims her purported firing was an attempt to destroy the independence of the Fed. The entire exception for the Fed SCOTUS created served to protect Powell, and now he’s under the same threat Cook is.
Privately, some White House officials see the episode as radioactive, with aides and allies eager to distance themselves from a probe they believe could do more damage to the White House than to Powell. One of the five people familiar said some inside and close to the White House are “freaked out” that a further threat to the Fed chief’s job security could spook the bond market.
How this happened deserves closer attention.
WaPo describes that Bill Pulte — who has had it in for Powell for months (in part because Pulte is not very good at his own job running FHFA, and so imagines low interest rates will make his own failures less acute) — wanted to precipitate such an investigation, but did not.
Housing finance regulator Bill Pulte met recently with President Donald Trump at Mar-a-Lago and shared a prop resembling a “wanted poster” he had made up featuring Federal Reserve Chair Jerome H. Powell, according to a person with knowledge of the meeting.
Pulte laid out scenarios that included investigating Powell and Trump liked the idea, the person said.
It’s not clear how the inquiry into Powell was approved, but an official with the Justice Department said it launched a criminal probe into Powell in November and Pulte was not a factor in the inquiry. The extraordinary investigation of a sitting Fed chairman was disclosed by Powell himself late Sunday.
[snip]
By the time Pulte met with Trump, the U.S. attorney’s office in D.C. had already launched an investigation, according to a person briefed on the situation.
Jeanine Pirro posted a defensive tweet yesterday, attacking Powell because he didn’t respond to prosecutors’ bullshit questions without a subpoena, which is within his right.
Someone at DOJ threw Pirro under the bus to Marc Caputo.
U.S. Attorney Jeanine Pirro’s office in D.C. launched the probe without giving a heads-up to Treasury, top White House officials or the main Justice Department, sources told Axios.
[snip]
A DOJ spokesperson said the department doesn’t comment on investigations, but an administration source said Pirro “went rogue.”
The effort to blame Pirro for this tremendous own goal comes in the wake of a WSJ article describing that Trump is bitching about his Attorney General, though his complaints suggest he might well support the criminal investigation of Powell, especially given that he doubled down on his complaints against the Fed Chair yesteday.
President Trump has complained to aides repeatedly in recent weeks about Attorney General Pam Bondi, describing her as weak and an ineffective enforcer of his agenda, administration officials and other people familiar with his complaints said.
The criticisms appear to be part of an intense campaign by Trump to pressure the Justice Department to more aggressively pursue his priorities, some of the officials said. Trump has previously criticized Bondi at times but his vocal concerns about his attorney general have grown more frequent in recent months, officials said.
A clusterfuck, the White House needs someone to blame, and they’re pointing to DOJ.
And yet, this clusterfuck is a clusterfuck of Pam Bondi’s own making.
In a normal DOJ, there’s an established non-political body that would vet an investigation like this one, Public Integrity. At the very least they would ensure the integrity of the inquiry and flag the investigation for necessary approvals. If we can believe those accusing Pirro of free-lancing, that didn’t happen.
To protect against politically motivated abuses, the DOJ’s Justice Manual has long required prosecutors in local U.S. attorneys’ offices to consult with the Public Integrity Section on any “federal criminal matter that involves alleged or suspected violations of federal or state campaign financing laws, federal patronage crimes, or corruption of the election process.”
But Trump’s DOJ reversed that policy in June. “Department leadership is currently revising this section,” this part of the Justice Manual now says. “The consultation requirement is suspended while revisions are ongoing.”
Several former Justice Department employees expressed extreme concern that the change in the Justice Manual, coupled with the flattening of the Public Integrity Section, opens the door for the Trump administration to engage in partisan prosecutions of Democrats by assigning the job to prosecutors working for U.S. attorneys — political appointees nominated by the president.
[snip]
But with so few lawyers left to consult, former members of the team say those consultation requirements are essentially meaningless.
“In a stripped-down office, the consulting function becomes nominal, if it exists at all. It sort of exists on paper so the government can say it exists and claim to be complying with the law,” said Michael Romano, a former prosecutor on the team. “But if you want people to provide legitimate oversight, guidance and expertise, you can’t do that with a team of two. In reality, the advising function becomes a box-checking exercise.”
Sure, they destroyed PIN precisely so they could predicate investigations into Trump’s enemies more easily.
This was entirely the point.
And now the entire Trump Administration is panicking about the results.
Ms. Pirro also did not share information with her bosses at the main headquarters of the Justice Department — including Attorney General Pam Bondi and her top deputy, Todd Blanche — citing the discretion granted local U.S. attorneys’ offices to investigate the head of the most powerful monetary policy body on earth, according to several officials with knowledge of her actions.
Senior officials at the department were stunned, and annoyed, that Ms. Pirro did not consult them on an investigation of such international importance, the officials with knowledge of her actions said.
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215 days before Jonathan Ross shot Renee Good dead after Good’s wife, Becca, engaged in First Amendment protected taunting of Ross, HSI Special Agent Ryan Ribner rushed through a gate at at a Los Angeles garment factory and — along with ICE Officer Carey Crook — assaulted SEIU CA President David Huerta, targeting Huerta rather than several other people who were more directly blocking a van, the purported crime in question.
Huerta argued in a motion to dismiss on First Amendment grounds submitted last week, days before Good’s killing, that Ribner and Crook did not arrest Huerta for obstructing a Federal officer, which is what got charged after DOJ abandoned a claim that Huerta had conspired to impede officers, much less the assault that they contemplated charging initially, but because Huerta had engaged in that First Amendment protected taunting.
It may well be that Ribner lied when he claimed he didn’t learn Huerta was a powerful union leader until after he assaulted him. Months later, the undercover officer working the crowd, Jeremy Crossen, admitted people in the crowd referred to Huerta as a union “member,” though that didn’t appear in either the texts that got shared with Huerta in discovery — which described the institutional affiliation of others — or a countersurveillance report he wrote weeks after the assault, where he included the research he had done after the fact for everyone but the state president of one of the most powerful unions in the country, the guy who got assaulted.
But if Huerta wasn’t targeted because he’s a powerful Democrat (in Ribner’s report there’s a weird claim that the agent guarding Huerta in the hospital only “feigned” interest when Mayor Karen Bass showed up to Huerta’s hospital room), then the record shows little else beyond speech.
According to videos turned over in discovery, Ribner started predicting Huerta would go to jail based solely off taunting, mostly about their masks.
Mr. Huerta asked them, “How are you keeping us safe?” Agent Ribner’s response was: “You are gonna go to jail. You are not impeding us. You are not impeding us. You’re going to jail, [unintelligible from 0:00:09–00:11] and you’re going to jail.” Id. at 0:00:01–00:12. Mr. Huerta then repeatedly asked him, “What are you doing?” and told him, “I can’t hear you through your fuckin’ mask,” and pointed at Agent Ribner. Id. at 0:00:14–00:17. Agent Ribner can be heard replying: “You’re gonna go to jail, you’re going to jail.” Id. at 0:00:17. For the next few minutes, Mr. Huerta continued to protest in front of the gate, including conversing with Agent Ribner, Officer Crook, and other officers, including, according to agents’ after-the-fact reports, “aggressively”4 asking the officers to identify themselves, stating “What are you going to do… Where’s your fucking badge number… What’s your fucking name?” Ex. B at 9. He also allegedly stated: “You’re not police! You’re not fucking police! You’re not keeping me safe!”
Indeed, Ribner’s own report describes himself predicting that Huerta and others would obstruct them, so he instructed his colleagues to be prepared to make arrests.
Later, HUERTA approached the gate and began yelling and about wanting to see agents’ faces. At times HUERTA was putting his arms through the fence as he yelled, and on at least one occasion he pointed as well. HUERTA stated, “Your boss” [believed to be referring to President Trump] wants things “made in America”. HUERTA went on and said that the things were manufactured inside of Ambiance. HUERTA appeared to be aggressive and angry by his voice, demeanor, and facial features. At some point HUERTA walked up to the gate and asked either about the purpose or legit impact of agents’ duties. SSA Ribner asked HUERTA the purpose of what he was doing [regarding being belligerent with law enforcement]. HUERTA made a comment that he lived in the community and /or cared about the community. SSA Ribner advised HUERTA that “we” [agents] also live in the community. SSA Ribner made the comment to HUERTA in the hopes of obtaining HUERTA’s compliance by advising HUERTA that law enforcement agents are just like him and care about the community and are also part of the demographic of the southern California area.
[snip]
STRONG, and LENEHAN would highly likely block or impede law enforcement vehicles, cause damage to USG property, or commit a battery against agents as they attempt to depart. SSA Ribner informed the DEA agents that if anyone in the crowd impedes, blocks, or physically batters an agent that arrests would be made. [my emphasis]
“He pointed as well”!!! And from that (and perhaps in his view that Huerta was Hispanic? — though several other people present looked more obviously Hispanic), Ribner concluded Huerta was aggressive.
Even though a vehicle had already entered the gate Ribner stood behind without major obstruction, Ribner predicted that a white detainee van that pulled up shortly after the conflict with Huerta occurred, while the gate was still closed, would incite some response. Huerta was on the public sidewalk in front of the gate, though several other people were more directly in front of the van’s path. But when the gate did open, at which point Huerta was to the side of the van, Crook and Ribner rushed Huerta and pushed him down.
That’s when Ribner conducted a brutal arrest, even applying pepper spray to his hand and smothering Huerta’s face with it, because — he claimed after Huerta sought hospital treatment for a head injury — Ribner did not want Huerta to hit his head on the curb he was driving it into.
SSA Ribner decided to deploy a chemical agent (pepper spray) on HUERTA due to HUERTA actively resisting arrest, the angered crowd, and HUERTA’s safety as his head was near a cement curb and SSA Ribner didn’t want him suffering an injury. Due to the concern of over spraying the chemical agent with others nearby (SDDO C and the crowd) or spraying HUERTA directly in the eyes, SSA Ribner decided to spray a small amount of the chemical agent in his hand and place his hand near the upper nose area of HUERTA’s face. HUERTA began to make noises and say that he couldn’t breathe.
Huerta’s head got slammed, and Huerta sought immediate hospital care. In his arrest report — again, written after he learned Huerta had a head injury — Ribner describes feeling no lump on Huerta’s head but said he did so to help Huerta to clean the pepper spray that Ribner’s post hoc reports claim he specifically avoided getting in his eyes out of Huerta’s eyes.
Agent’s Note: During the arrest encounter SSA Ribner never personally observed HUERTA strike his head on the ground. Additionally, when SSA Ribner was decontaminating HUERTA, he placed his hands on the back of HUERTA’s head to help move his head back to place water in his eyes and face area. SSA Ribner never felt any bumps or cuts on the back of HUERTA’s head. Additionally, SSA Ribner didn’t observe any physical bumps or cuts on HUERTA’s head.
As so often has happened after DHS assaults and hurts someone, that night make-believe US Attorney Bill Essayli accused Huerta of assault.
And sometime later, Ribner was in a meeting with Todd Blanche, and Essayli promised Blanche this would go to trial in September or October.
GS Ribner stated he spoke with United States Attorney Bill Essayli about this case and others, such as the Deputy Attorney General (DAG) and Special Agent in Charge Eddie Wang. During the briefing, USA Essayli told the DAG that “this case is going to trial in September or October
It did not go to trial in September or October. Instead, as AUSAs learned more about what happened, they gave up the felony charge.
As you can tell from Ribner’s attempt to build in deniability for the head injury, Ribner obviously tried to reverse-engineer his actions, to provide some excuse for the assault.
“Banged on a gate” and “pointed as well”!?!?! No wonder they asked to detain Huerta pretrial.
Ribner’s initial arrest report (the same report where he denied knowledge of a head injury, which he wrote almost two weeks after the arrest) is full of things — including some alleged assaults by protesters, but also including exchanges like the local San Diegans who, days before the Huerta assault, shouted “shame” until ICE abandoned their effort to raid a local restaurant — that Ribner cited to explain why he implanted an undercover agent at the scene to seek out a vast conspiracy Ribner was sure existed.
Mostly, though, I suspect it was the shame.
Huerta was lucky. Because he’s an American citizen, he couldn’t be shunted off to a GEO prison and refused access to his attorneys, which is what make-believe US Attorney Essayli did to prevent Carlitos Ricardo Parias from unpacking the problems with the claims of assault against him. Because — unlike Renee Good — Huerta survived, DOJ had to try to invent a criminal case out of Ribner’s own actions.
But, it appears that by August, after several delays in attempting to indict Huerta, the whole charade started falling apart. Ribner’s report (which, on top of the obvious retconning of his actions, did not match the documented timeline in a few other areas) and the absence of any crime was bad enough. But the witness stories didn’t match, even though there’s good reason to believe they were coordinated after the fact. In addition to claiming he noticed Huerta arrive in real time rather than after Ribner called him out, Crossen described Huerta push back, something not captured in video (and which Crossen may not have been able to see from where he stood). Carey Crook (the guy who first pushed Huerta), falsely claimed Huerta had splayed himself across the van in an X, and similarly invented a claim that Ribner had sprayed Huerta, rather than smother his face in pepper spray. The driver of the van, Brian Gonzales, didn’t remember seeing Huerta in a first interview, but in a follow-up the day before he would start a new permanent job at CBP, he did, though he disputed Crook’s claim that Huerta had splayed across the van grill.
Crossen explained that his video didn’t capture Huerta in front of the van because he started filming just after that. He said he did all this on his personal phone because his government phone wasn’t working that day (in addition to the motion to dismiss, Huerta is also demanding the Cellebrite metadata for the texts extracted from the personal phones both Ribner and Crossen used that day). He admitted that Ribner gave instructions on how to write up his countersurveillance report, but didn’t tell him what to say.
Ribner’s was the last interview from this period when DOJ was stalling the case, a week before a new case opening date possibly focused on Ribner. When asked to describe his actions, as problems with the arrest must have become evident, Ribner explained simply that the peaceful protesters were “vicious, horrible people.”
GS Ribner stated HUERTA and other protesters are “vicious, horrible people”.[In reference to a still photo of video 2774 at 0:03], GS Ribner identified HUERTA. He recalled telling HUERTA, “You better not block the cars”. He stated that HUERTA was not in the way of vehicles or personnel at this point.
Stephen Miller has told all Trump supporters, especially those who work at DHS, that people who support immigration are vicious, horrible people. And he gave them rules of engagement that invited assaults like this, assaults they simply bury in often-failed attempts to criminalize the victim.
It’s surprising it took seven months before someone Stephen Miller has defined as a vicious horrible person got killed.
Timeline
June 6: Arrest
9:00 AM: HSI task force officer (and Inglewood cop) Jeremy Crossen arrives under cover
9:20: Agents start executing search
9:57: Crossen interacts with Asian woman
10:26: Crossen interacts w/Hispanic protestor, claims he is monitoring the police
11:07: Crossen sees pick-up without plates whose Hispanic driver films
11:19: Crossen describes a Hispanic woman with a neck gaiter; his report provides background on a Kids of Immigrants sweatshirt she wears; start time of alleged criminal conduct
11:25: A sedan enters the gate; after an agent instructs those filming it to step away, they do; Crossen texts Ribner,
11:31: A Hispanic woman whom Crossen IDs by name shows up, makes phone calls
11:36: Crossen describes a white woman by name, describes that she masked as the crowd grew
11:37: Crossen describes the Hispanic leader of ACCE Action, Council Member Jose Delgado, show up, make calls
11:49: Crossen claims he sees Huerta walk up
11:51: A white woman from Tenants Union starts yelling obscenities
11:53: Ribner instructs Crossen to focus on Huerta
11:54: Huerta and others sit in front of the gate
12:01 PM: Ribner leaves the property and assaults Huerta [note his report timeline goes haywire in here]
12:00-12:09: Crossen texts Ribner
12:15: Crossen claims van arrives (his description describe others who were in front of the van, then says Huerta also was)
12:15: Ribner calls 911 (claiming this is about pepper spray)
12:18: Crossen describes a scrimmage line
12:20-12:40: Discussions about Huerta’s attempt to call his attorney
12:30: LAFD responds; Huerta asks to be brought to the hospital; Crossen describes LAFD arrival this way:
At approximately 12:28 p.m., TFO Crossen observed a Los Angeles City Fire truck with activated emergency lights and loud audible siren, attempting to gain entry to the business, still being blocked by protestors, to render aid for HUERTA, inside the business, who had been exposed to OC Spray, during his arrest.
12:40: Ribner reports arrest to CACD US Attorney office
12:42: Ribner tells Crossen his personal phone is out of battery, asks him to use his government one
12:47: Ribner admits he used pepper spray
1:05: Ribner speaks to USAO again
1:30: Huerta taken to hospital w/agent in car
2:45: Ribner asks Crossen for pictures of Huerta
Unmarked time: Mayor Bass shows up to hospital room; they ask her to leave (and she does)
9:12: Crossen sends last clip from videos to Ribner (the discovery turned over provides nowhere near the “4 hours” or “100 videos” that Crossen told Ribner, five hours earlier, that he had taken (though the defense did not include all the texts in their exhibit)
June 17: Date created for one photo provided in discovery
June 19: Initial incident report; Ribner would later (in his September 10 interview) admit he wrote the report from memory and simply did not “recall that he told HUERTA, ‘You are not impeding’. He does not know why he did not include that statement in his report and agrees that his statement could sound exculpatory.”
November 5: Huerta’s attorneys ask AUSA to identify the obstructive conduct
December 19: AUSA finally provides vague description of conduct
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I started my day intending to write about the details surrounding SEIU California President David Heurta’s assault in June revealed in a motion to dismiss and a motion to compel discovery filed yesterday. And I’ve been meaning to do a post on what much coverage of the dismissal of the case against Carlitos Ricardo Parias, a TikToker ICE shot on October 21, has not said: Basically DOJ avoided giving Parias due process by stashing him in a GEO detention facility and preventing his criminal defense attorneys any access, effectively escaping accountability for the shooting that way.
But later in the day, a DHS officer shot and killed an ICE observer, Renee Good, in Minneapolis. Both the Star Tribune and MPR have a running threads of developments.
Here’s a tracker of all the people ICE have shot, including a guy in San Diego shot after he shot his own gun to celebrate the New Year only to have an off-duty ICE officer kill him.
And so instead I’m going to float a suspicion I’ve been nursing.
In Greg Bovino’s deposition for the Chicago Book Club lawsuit, plaintiffs counsel Locke Bowman asked whether Kristi Noem gave him direction on the use of force. She does not.
Q Do you report to Secretary Noem to receive direction as to the use of force in the course of Operation Midway Blitz?
A Are you asking if — if she gives me driection —
Q Yes, sir.
A –to use of force?
Q Yes. If she gives you direction as to how and when to employ force?
A No.
But when Bowman asked Bovino if he had spoken to Stephen Miller about use of force, the DOJ lawyer, Sarmad Khojasteh, instructed him not to answer.
Q All right. How about Mr. Miller, have you spoken with Mr. Miller on the subject of employment of force and the issues of crowd control that you were facing in Operation Midway Blitz?
Mr. Khojasteh: Object to form. I’m going to instruct the witness not to answer to the extent that it — doing so would implicate executive privilege.
Q Okay. So there has been an invocation of privilege, and you are not answering the question based on that invocation, correct, sir?
A That’s correct.
Q I will ask the same question generally. Other than the two individuals I have mentioned, have you spoken with any of your superiors in the executive branch with respect to the issue of crowd control and the application of force in the course of Operation Midway Blitz?
Mr. Khojasteh: Object to form. Lacks foundation. Vague as to superiors in the executive branch.
Q I’ll stand on the question. Could you answer, please?
A Sir, could you be more specific, please?
Q In what respect?
A Who in the executive branch?
Q I’m asking anyone in the executive branch.
Mr. Khojasteh: Then I’m — if you’re going to be that vague about it, Counsel, I’m going to instruct the witness not to answer to the — that to the extent that doing so would reveal executive communications.
Q All right. Without revealing executive communications, and my question didn’t ask for the revelation of communications, can you answer, please?
A Based on the advice of my lawyer, no.
Q I’m not sure — was there an instruction not to answer as to the last question that I propounded?
Mr. Khojasteh: I’m not even sure I understood the last question you propounded.
Q Well, so there was no instruction?
Mr. Khojasteh: Well, I think — I thought it was the same question that I had —
Q Okay.
Mr. Khojasteh: — given the instructions.
Bovino: That’s what I thought. That’s the way I thought.
Q. Okay. All right. So is it true, with respect to the application of force and crowd control, that you take your orders from the executive branch, whether that’s President Trump or Secretary Noem?
Mr. Khojasteh: Object to form. Lacks foundation. Asked and answered.
Bovino: Can you repeat that, please?
Q Yes. Is it true, with respect to the application of force and the matter of crowd control during the course of Operation Midway Blitz, that you take your orders from the executive branch, whether that’s President Trump or Secretary Noem?
Mr. Khojasteh: I’m going to instruct the witness not to answer to the extent that doing so would reveal communications between he and the President.
Q I didn’t ask to reveal communications. I asked if what I just read is a true statement.
Mr. Khojasteh: Yeah, but embedded in your question is the substance of the communication you’re asking, right?
Q This calls for a yes or no. Can you answer it, yes or no?
Mr. Khojasteh: I’m going to instruct you not to answer as with — as it relates to communications with President Trump or anyone in the White House.
Bowman also noted that in a TV appearance, Bovino said he took his instructions from the Executive Branch, whether Trump or Kristi Noem.
The implication is fairly clear: That Stephen Miller is the one instructing him on use of force.
Greg Bovino was present for today’s shooting.
In the wake of the shooting, Tricia McLaughlin, Kristi Noem, Stephen Miller, and Donald Trump all have told vicious lies about the shooting; their lies aren’t even consistent with each other, much less the video.
The shooting comes in the wake of the Supreme Court ruling that Trump can’t deploy the National Guard to cities unless he has first resorted to active duty troops.
It’s time to ask whether Stephen Miller ordered Greg Bovino to shoot those who document DHS’ invasions.
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Laura Jedeed wonders whether Trump is testing out a new kind of colonialism, where you basically issued orders to the corrupt illegitimate authorities, rather than installing the opposition.
Trump and Rubio’s talking points combine into a message intended not for the people of America, but for the heads of state in Cuba, Columbia, [sic] and worldwide. The message itself is simple, elegant, and ugly: do exactly what we say or America will destroy you—not your country, or your economy, or your people, but you, personally. This strategy doesn’t just let America “run” Venezuela. It allows this administration to “run” any country unable to attack us on our home turf: extract their resources, dictate their domestic policy, force their leaders to resign. All by credibly threatening extreme personal violence against any head of state who pushes back.
Credit where credit is due: it’s an entirely new approach to colonialism. Here’s how it’s worked since Britain perfected the art: you invade the country, then place the opposition party in power. That party requires your support to maintain control (if they had enough force to do it themselves they’d already be in charge). In exchange for military backup, their leader will do anything you ask.
Trump, on the other hand, has endorsed Maduro’s Vice President, Delcy Rodríguez, allegedly because the opposition party “doesn’t have the support within, or the respect within the country.” This assertion is aggressive nonsense. Opposition party weakness is a feature, not a bug, for the reasons stated above. It’s also patently untrue in this case. Election monitors from several countries agree that candidate Edmundo González Urrutia beat Maduro in a landslide two years ago by as much as 51 percent. Trump and his allies know this—they’ve used Maduro’s election theft to justify invasion. It’s kind of perfect: the party doesn’t have the power to gain power by themselves, but they’re popular enough to minimize the danger of revolt. It’s the dream situation—so why isn’t the Trump administration going for it?
Most people seem to think Trump’s endorsement of the unpopular and hostile Rodríguez stems from bitterness towards María Corina Machado, the opposition party leader who received the Nobel Peace Prize that Trump wanted so badly last year. Machado seems to think so too; she’s offered to give the prize to Trump and spent ten minutes abasing herself before the Peace President on Hannity yesterday. It won’t help. Trump is petty to the core, it’s true, but Stephen Miller and the other ghouls actually running this country would never set the entire colonial playbook on fire just to appease some old queen’s ego.
The real reason, I suspect, is this: leaving Rodríguez in charge is the only move that does not require a full-scale invasion.
Unlike Machado, Rodríguez possesses a military and police force capable of holding Venezuela together. Under the old model, that force would have threatened our hegemony, but under Colonialism 2.0, she has a strong incentive to do exactly as she’s told regardless; she is, after all, one surgical strike away from losing her freedom or possibly her life. As long as she doesn’t call Trump’s bluff or get coup’d herself, it’s foolproof.
[snip]
And the administration was right: Rodríguez is already rolling over. “We consider it a priority to move towards a balanced and respectful relationship between the US and Venezuela,” she wrote on Telegram late Sunday. “We extend an invitation to the US government to work together on an agenda for cooperation that is aimed towards shared development.” So far, so good.
That’s certainly what Trump is trying to do.
But it’s wildly premature to assess whether it’ll work.
Before I explain how it may backfire, let me observe that this plan is precisely the same plan Trump (Stephen Miller, really) is attempting with the US.
What Trump plans for Colombia is little different than what he succeeded in doing with Columbia University: Make demands on the elected leader, extract tribute, change the rules to benefit the authoritarian state. Whether it will work long term has yet to be seen, but the lesson of New College in Florida shows where things may head in the medium term: with dramatically increased costs and noticeably decreased utility. Once DeSantis is out of power, the effort is likely to be abandoned, turning New College into a bigger shell than it is already is. Columbia might take longer to collapse, unless Stephen Miller doubles down on his demands.
Now consider what makes Venezuela (or Colombia) different from Columbia, starting with the guns, guns which might come from at least three different places.
First, there are Russia, China, and some other Venezuelan patron states that are under assault as well. Trump has ordered Venezuela to expel them, stop doing business with them, and sell oil only to the US.
The Trump administration has told Venezuela’s interim president Delcy Rodriguez that the regime must meet the White House’s demands before being allowed to pump more oil, according to three people familiar with the administration’s plan.
First, the country must kick out China, Russia, Iran, and Cuba and sever economic ties, the sources said. Second, Venezuela must agree to partner exclusively with the U.S. on oil production and favor America when selling heavy crude oil, they added.
According to one person, Secretary of State Marco Rubio told lawmakers in a private briefing on Monday that he believes the U.S. can force Venezuela’s hand because its existing oil tankers are full. Rubio also told lawmakers that the U.S. estimates that Caracas has only a couple of weeks before it will become financially insolvent without the sale of its oil reserves.
Russia has sent a submarine and other naval assets to escort an empty, rusting oil tanker that has become a new flashpoint in U.S.-Russia relations, according to a U.S. official.
The tanker, formerly known as the Bella 1, has been trying to evade the U.S. blockade of sanctioned oil tankers near Venezuela for more than two weeks. The vessel failed to dock in Venezuela and load with oil. Although the ship is empty, the U.S. Coast Guard has pursued it into the Atlantic in a bid to crack down on a fleet of tankers that ferry illicit oil around the world, including black-market oil sold by Russia.
The vessel’s crew repelled an effort by the U.S. to board the vessel in December and steamed into the Atlantic. As the Coast Guard followed it, the crew sloppily painted a Russian flag on its side, changed its name to the Marinera and switched its registration to Russia.
Russia has been concerned by U.S. seizures of tankers that ferry its illicit oil around the world and power its economy, and it has made the unusual move of allowing the tanker to register in Russia without an inspection or other formalities, experts say.
Will this lead to some kind of direct conflict? I have no fucking clue and neither do you, because both Trump and Putin are fucking nuts. If Trump were rational, he’d retaliate not with direct confrontation in the North Sea, but by arming Ukraine and giving them the green light to up its attacks on Russia, but he’s not rational. Russia’s economy is actually close to collapse, and it wouldn’t take much to get it there. Russia, of course, has other means it might use to retaliate against Trump.
We shall see.
China is another matter though. China not only is rational, but China kicked the shit out of Trump in his last attempt to demand obeisance, the tariffs. Trump thought he could achieve with tariffs what he is trying to achieve with Venezuela: obeisance and personal tribute. Not only have all the tariffs harmed the US, spiking small business bankruptcies and inflation (and in the process making Trump’s political support far weaker), but China used its near-monopoly on rare earths and ability to replace US soybeans to bring Trump to his knees instead.
In fact, the Venezuelan coup might be partly a response to China’s success at wielding the rare earth weapon. While there’s much I disagree with in it, this post argues the Venezuela invasion was not about oil, but about the rare earth China currently extracts.
Investigative reporting documented Chinese buyers operating directly at mining sites in Bolívar state. The Venezuelan government established official collection centers in Los Pijiguaos and Morichalito in 2023 specifically for cassiterite, coltan, nickel, rhodium, and titanium. The Maduro regime designated these as strategic resources for commercialization, meaning state control over extraction and export, with Chinese buyers integrated into official operations from the start.
The supply chain from Venezuelan mines to Chinese refineries operates through both formal and informal channels, with Chinese buyers exercising operational control at the extraction source. Minerals extracted in the Orinoco Arc move by river and air transport to Colombian border towns, then to Bogotá for smelting into refined bars. These materials are relabeled under incorrect tariff codes, transforming raw ore into processed ferro-tantalum or other classifications that obscure origin. Final export occurs through Colombian ports at Santa Marta and Buenaventura, destined for Chinese processing facilities.
Once Venezuelan minerals blend with Colombian or Brazilian ore in these intermediary steps, tracing origin becomes effectively impossible. This laundering mechanism allows Venezuelan minerals to enter legitimate global supply chains, including those feeding US defense contractors. The result is Pentagon weapons systems potentially incorporating materials extracted under Chinese buyer supervision in Venezuelan territory, then processed in Chinese refineries controlled by Beijing.
Chinese buyers do not operate at arm’s length through market transactions. They coordinate directly at the mining sites with both Colombian guerrilla groups (ELN, FARC dissidents) who control physical security and Venezuelan state security (SEBIN) who facilitate transport using official government vehicles. One miner described seeing Chinese operatives and ELN commanders “eating together, buying material together, and getting off the helicopter together.” This is not commercial activity. This is integrated operational control where Chinese buyers work directly with armed groups and state officials to extract strategic minerals.
Trump doesn’t need — indeed, the oil companies probably don’t want — Venezuela’s oil, at least not in the short term.
He does need rare earth deposits (which is also the stated purpose of usurping Greenlands).
It took us some months to understand how China responded to Trump’s threat of tariffs. It took less time to recognize China’s advance preparation for them (based on Trump’s trade war from the first term).
A lot of the coverage of the coup views it as a profound humiliation for China, not least because China’s Latin American envoy met with Nicolás Maduro the day before the coup. That didn’t stop China (and Russia and Iran) from attending Rodríguez’ signing in, so there’s a distinct possibility they’re in at least as close coordination with Rodríguez right now as Marco Rubio.
But the most belligerent thing — the thing people expect — is that China will take Taiwan, as it was practicing to do even as Trump had a fifth of deployed assets in the Caribbean preparing to invade.
With all the attention on Venezuela, there has been too little attention on vacuums created with this extended deployment off the coast of Venezuela (the most immediate of which is probably in the Middle East). But it is clear that Trump keeps launching little wars with resources most of Congress believes should be used to counter China’s expansionary plans.
But as China showed with the tariffs, they likely have ways to respond that are less direct and at least as devastating.
But China and Russia aren’t the only ones who have guns here.
So does, just as one example, Interior Minister Diosdado Cabello, who has been indicted in SDNY alongside Maduro since 2020. Reuters describes that the US already threatened Cabello.
In the meantime, they have communicated to Cabello via intermediaries that if he is defiant, he could face a similar fate to Maduro, the authoritarian leader captured in a U.S. raid on Saturday and whisked away to New York to face prosecution on “narco-terrorism” charges, or could see his life in danger, the source said.
But taking out Cabello could be risky, possibly motivating pro-government motorcycle groups, known as colectivos, to take to the streets, unleashing the chaos Washington wants to avoid. Their reaction may depend on whether they feel protected by other officials, however.
In one of her first decisions as acting president, Rodríguez appointed General Gustavo González López as new head of the Presidential Honor Guard and the Directorate General of Military Counterintelligence (DGCIM), state TV said late on Tuesday.
González López, who has been sanctioned by the U.S. and EU along with at least half a dozen other high-ranking officials for rights violations and corruption, served as Venezuela’s intelligence director until mid-2024, when he was replaced by Maduro in a reshuffle of his cabinet and security team.
Later that year, he began working with Rodríguez as head of strategic affairs and control at state oil company PDVSA.
González López was considered close to Cabello, but it was not immediately clear whether his appointment was a gesture of support from Rodríguez to the man considered the strongman of the ruling party, or, on the contrary, a sign of a rift.
The officer replaces General Javier Marcano, whose performance came under scrutiny after Maduro’s capture, according to analysts.
One thing I’ve seen no coverage of is why the US thinks Rodríguez will be secure within Venezuela now that Trump killed the 40 Cubans who were protecting Maduro. And the militias via which Cabello exercises some of his repression could carry out a deniable kind of violence.
But Cabello isn’t even the only one with guns in question. The purported purpose of this operation is about stopping drug trafficking. But unless Trump is doing what every other caudillo does — manage the trade while extracting tribute — there will, eventually, be a counter response from the cartels, which don’t take kindly to losing their markets and have the ability to exercise violence both on site — in Venezuela — but also closer to home, including in the United States. Stephen Miller has so much of US law enforcement snatching workers at Home Depot that certain kinds of crime are likely far easier to pull off. Update: About which the NYT has another story today.
Finally, there are the Venezuelan people. Maduro only remained in power with a great deal of repression, and Trump is tinkering with that system of repression. Meanwhile, Trump’s plans to expel much of the Chinese may exacerbate already dire economic conditions for Venezuelans, because Trump won’t subsidize soft power in the way China has been willing to (to say nothing of the expulsion of Cubans who were providing medical care). Where Stephen Miller’s authoritarianism has failed most dramatically in the US is the way the counter reaction to his goons has revitalized civil society in cities that stand up to the goons. And there’s already a practiced opposition in Venezuela that, as in the US, dramatically outnumbers the goons in charge.
It’s only day four. We have no fucking idea how this will turn out. While Delta Force and the CIA performed spectacularly, there’s really just a handful of people in charge, and most — like Stephen Miller, who thinks of Venezuela as an island surrounded by a US armada and therefore is likely forgetting about a porous border with Colombia — are utterly ignorant about Venezuela and childish about power.
Columbia University was easy to subjugate, because no one had guns. But even there it only happened by damaging the host. There are a lot of people with guns with an interest in Venezuela.
It’s just as likely, in my opinion, that this precipitates World War III as that it succeeds in Venezuela much less produces the treasure Trump is demanding.
Update: CEO of the Human Rights Foundation, Venezuelan Thor Halvorssen, predicts Delcy Rodríguez’ quick demise.
Reports indicate the Trump administration has struck a deal with Delcy Rodríguez, Mr. Maduro’s iron-fisted vice president, positioning her as a transitional leader. She has, it seems, convinced U.S. officials that she can dismantle the Maduro dictatorship, which would have to include demobilizing the armed militias, disbanding the dreaded secret police and ending the regime’s drug empire. But this is a fantasy. Ms. Rodríguez will fail spectacularly, leading to the final unraveling.
Venezuela isn’t like Mexico, where a state coexists uneasily with cartels. Here, the cartel is the state. Factions—enriched generals, intelligence chiefs and narco-traffickers—won’t surrender power in a Washington-brokered deal. Ms. Rodríguez herself faces insurmountable obstacles, beginning with her utter lack of legitimacy. Never elected vice president, she has less authority than Mr. Maduro, the usurper who appointed her.
I think he wildly overestimates the extent that Trump would even permit any lapse in repression.
Update: Meanwhile on Xitter, I take this as confession that Stephen Miller knows fuckall about the oil market, especially the discount at which Venezuelan oil must be sold and the price at which it is worth drilling.
Paul Krugman’s column today is on how Trump’s oil math doesn’t add up.
[W]hatever it is we’re doing in Venezuela isn’t really a war for oil. It is, instead, a war for oil fantasies. The vast wealth Trump imagines is waiting there to be taken doesn’t exist.
Update: WSJ goes into more depth about the challenges Cabello may pose to Trump’s plans.
Fond of swinging a spiked club while spouting conspiracy theories on his hourslong weekly show on state television called “Bringing Down the Hammer,” now on its 556th episode, Cabello is hard to predict.
Cabello, a 62-year-old whose official title is minister of interior, justice and peace, has so far signaled unity, taking part in Rodriguez’s swearing-in ceremony on Monday, where various factions of Venezuela’s ruling socialist party were present.
But that night, Cabello was toting a rifle and riling up black-uniformed security forces before they patrolled Caracas to prevent citizens from protesting.
“Doubting is treason!” he said, before telling the armed group, “Now, off to battle in the streets for victory.”
Under a state of emergency that the government declared after Maduro’s capture, security forces were ordered to hunt down U.S. sympathizers, according to the Official Gazette, where the Venezuelan government publishes new laws and decrees. Residents in the capital reported new roadblocks around the city where armed, masked men checked the phones of ordinary Venezuelans for antigovernment messages.
Update: This offers a good explanation of all the people with guns who would make things difficult even if Delcy Rodríguez did want to cooperate with the US.
Update, January 9: This analysis lays out the difficulties of Delcy Rodriguez’ position better than I did.
For her part, Rodríguez confronts an unprecedented challenge for a Venezuelan leader: She must satisfy Washington’s demands while maintaining sufficient Chavista coalition support to prevent an internal fracture or a military coup. The Trump administration demands sufficient cooperation to enable US oil company operations, likely including transparent property contracts and regulatory stability—precisely the institutional environment that Chavismo systematically dismantled. Rodríguez making such an agreement with Trump would alienate the regime’s hardliners, who would view her accommodation as a betrayal. Thus, Rodríguez may be unable to guarantee the stability required for the business operations Trump wants to run in Venezuela.
Her public contradictions reflect this impossible position. In her first televised addresses as interim president, she demanded Maduro’s immediate release to demonstrate loyalty to domestic audiences. Less than twenty-four hours later, however, she declared it a priority to move toward a “balanced and respectful” economic cooperation between the United States and Venezuela.
This double game cannot persist indefinitely. Rodríguez must choose between accommodating Trump’s demands or preserving Chavista unity. Trump’s threat that if Rodríguez “doesn’t do what’s right, she is going to pay a very big price, probably bigger than Maduro” makes clear that there will be consequences of noncompliance. Purging the hardliners may be Rodríguez’s best option.
Perhaps Rodríguez’s most complex challenge is managing Venezuela’s deep entanglements with China, Russia, Iran, and Cuba while simultaneously partnering with the Trump administration. This is especially the case after the Trump administration demanded that Venezuela immediately cut ties and cease intelligence cooperation with Russia, China, Iran, and Cuba. These relationships represent more than diplomatic alignments—they constitute binding financial obligations, operational dependencies, and strategic commitments that cannot simply be abandoned without triggering massive economic and security consequences.
China presents the most significant financial exposure. Venezuela owes Beijing around twenty billion dollars in loans. These debts are secured through oil-for-loan arrangements that require repayment through crude deliveries, with China currently absorbing more than half of Venezuela’s oil exports (approximately 746,000 barrels per day in November 2025).
Beyond petroleum, Chinese state enterprises control critical Venezuelan infrastructure.
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As I’ll explain below (and mapped in this table), the superseding indictment against Nicolás Maduro and his wife unsealed yesterday is a more political document than the one that first charged Maduro in 2020. One important difference lies in how DOJ attempted to claim Maduro is not the leader of Venezuela, which will be a key element required to overcome any immunity claim Maduro will surely invoke.
Before I explain the differences between these indictments, let me stress that both are real indictments, documenting decades of corruption and cooperation with drug traffickers and terrorists. Prosecutors worked hard to pull them together and investigators (in the US and around Latin America) and sources no doubt risked their lives to make it possible.
The charges remain the same as in 2020
Both indictments charge the same four crimes:
Narco-Terrorism Conspiracy (21 USC 960a)
Cocaine Importation Conspiracy (21 USC 963)
Two counts of use of machine guns or destructive devices in furtherance of the conspiracies (18 USC 924)
The latter charges, charging Maduro for possessing machine guns, have attracted some mockery, including from me. DOJ is at the same time arguing that DC must allow semi-automatic weapons and at the same time charging a foreign leader with possessing machine guns. The charges are there (and were put there years ago) because they’re a way to get significant sentencing enhancements for other crimes. The presentencing memo for Hugo Armando Caraval-Barrio, who was charged with Maduro in 2020 and pled guilty in June, added so many sentencing enhancements they’re having a multi-day hearing later this month to fight about which ones apply. But given the evolution of gun prohibitions in the US since Bruen (issued in 2022), Maduro may try to challenge this charge, though Caraval-Barrio pled to those same charges in June.
DOJ includes Sinaloa, los Zetas, and Tred de Aragua for reasons that likely have to do with Stephen Miller’s fever dreams
In addition to adding overt acts that happened since 2020, the Narco-Terrorism Conspiracy charged in the newly unsealed indictment is interesting — and may have further significance — because it added several new cartels that have been deemed terrorist organizations last year. The 2020 indictment focused on FARC, the left wing Colombian terrorist organization that trafficked drugs, and Cartel de Soles (the vague name used for Maduro’s corruption). But in the last year, the Trump Administration has, for the first time (and controversially), designated drug cartels that engage in extreme violence as terrorist organizations. So the new indictment names not just FARC and ELN — Colombian terrorists whom Maduro gave shelter — but Sinaloa and the Zetas, along with Tren de Aragua.
24. It was a part and an object of the conspiracy that NICOLAS MADURO MOROS, DIOSDADO CABELLO RONDON, and RAMON RODRIGUEZ CHACIN, the defendants, and others known and unknown, would and did engage in conduct that would be punishable under Title 21 , United States Code, Section 841 ( a), if committed within the jurisdiction of the United States, to wit, the distribution of, and possession with the intent to distribute, five kilograms and more of mixtures and substances containing a detectable amount of cocaine, knowing and intending to provide, directly and indirectly, something of pecuniary value to a person and organization that has engaged and engages in terrorism and terrorist activity (as defined in Title 8, United States Code, Section 1182(a)(2)(B)), or terrorism (as defined in Title 22, United States Code, Section 2656f(d)(2)), to wit, the following organizations that have been designated by the United States Secretary of State as FTOs pursuant to Section 219 of the INA, during times relevant to this Superseding Indictment: FARC, FARC-EP, Segunda Marquetalia, ELN, TdA, the Sinaloa Cartel, CDN, also known as the Zetas, and each organization’s members, operatives, and associates, having knowledge that such organizations and persons have engaged and engage in terrorist activity and terrorism, in violation of Title 21, United States Code, Section 960a. [my emphasis]
This is one of the things I view as political. There’s far more substance behind the FARC allegations than the Sinaloa and Zetas ones. The Zetas allegation relies on the Zetas’, working with unnamed Columbian traffickers, use of Venezuelan ports from 2003 to 2011. The Sinaloa allegation relies on Caraval-Barrio’s protection of Chapo Guzmán in 2011. Both those allegations took place long before Marco Rubio included the Mexican cartels in his new designations. But by including them in this indictment, DOJ makes this application of such crimes applicable in Mexico, an ominous inclusion given Trump’s overt threats to pull the same kind of invasion in Mexico next.
The Tren de Aragua is likewise thin. In the 2020 indictment, two FARC leaders were included as co-conspirators, but that reflected a sustained relationship with Maduro as laid out in the overt acts. The TdA inclusion here relies on a similar move, including its leader, Hector Ruthsenford Guerrero Flores as a co-conspirator. But his inclusion relies on two overt acts that don’t involve Maduro: Guerrero’s actual trafficking with someone not alleged to be part of this conspiracy, and comments made in a Venezuelan prison in 2019. (These may be the comments that US intelligence services have deemed to be unreliable.)
f. Between approximately 2006 and 2008, HECTOR RUSTHENFORD GUERRERO FLORES, a/k/a “Nifio Guerrero,” the defendant, worked with one of the largest drug traffickers in Venezuela, Walid Makled. Members of the Venezuelan regime helped protect Makled’s cocaine shipments that were transported from San Fernando de Apure, Venezuela, to Valencia, Venezuela, and were then sent by plane from the Valencia international airport to Mexico and other locations in Central America for eventual distribution to the United States. Between in or about 2008 and in or about 2009, GUERRERO FLORES also provided another major Venezuelan drug trafficker with protection for cocaine shipments moving through Venezuela, including by providing armed men who carried, among other automatic weapons, AK47s, MP5s, and AR-15s, as well as grenades. At times, GUERRERO FLORES personally accompanied large cocaine loads as they were guarded by the teams of armed men, en route to airports or airstrips for transport north and eventual distribution to the United States. GUERRERO FLORES was paid a fee per kilogram of cocaine transported or received and he sometimes received an interest in portions of these massive cocaine shipments in lieu of payment. The traffickers that GUERRERO FLORES worked with moved thousands of kilograms per shipment, multiple times per month, resulting in the distribution of hundreds of tons of cocaine to the United States. In or about 2009, Makled was charged with narcotics offenses in this District and is a fugitive.
[snip]
o. In or about 2019, TdA’s leader, GUERRERO FLORES, discussed drug trafficking with an individual he understood to be working with the Venezuelan regime. Over multiple calls, GUERRERO FLORES offered to provide escort services for drug loads, explaining that GUERRERO FLORES and TdA had control of the coastlines of Venezuela’s Aragua State. GUERRERO FLORES, speaking from TdA’s base of operations in Tocor6n Prison, explained that TdA could handle the logistics of every aspect of the drug trade, including the use of storage compartments that GUERRERO FLORES called “cradles” located on a beach in Aragua State. In doing so, GUERRERO FLORES confirmed TdA’s ability to protect over one ton of cocaine.
That is, neither is TdA necessary to substantiate the narco-trafficking charges, which are well-substantiated based on protection of FARC, nor is the substance of TdA’s inclusion all that convincing.
At all.
But no doubt Stephen Miller will use this — a grand jury finding probable cause tying TdA to Maduro — to attempt to renew his Alien Enemies Act deportations.
Adding the family, leaving behind the key co-conspirator
On top of swapping FARC co-conspirators for a TdA one, the newly unsealed indictment adds Maduro’s wife and son as co-conspirators.
The inclusion of Maduro’s son is better substantiated. The indictment alleges that his plane was used to ship drugs, he shipped drugs to Miami, and he met with FARC (though neither he nor his mother are included in the narco-trafficking charge).
The inclusion of Cilia Maduro — who was shipped to SDNY along with her husband — rests on her allegedly accepting a bribe in 2007 to broker a meeting between a trafficker and Venezuela’s corrupt top anti-drug cop.
b. In approximately 2007, CILIA ADELA FLORES DE MADURO, the defendant, attended a meeting in which FLORES DE MADURO accepted hundreds of thousands of dollars in bribes to broker a meeting between a large-scale drug trafficker and the director of Venezuela’s National Anti-Drug Office, Nestor Reverol Torres. The drug trafficker later arranged to pay a monthly bribe to Reverol Torres, in addition to approximately $100,000 for each flight that was transporting cocaine to ensure the flight’s safe passage, a portion of which was then paid to FLORES DE MADURO. In or about 2015, Reverol Torres was charged with narcotics offenses in the Eastern District of New York and is a fugitive.
But prosecutors likely included Maduro’s family — and snatched Cilia along with her spouse — to acquire leverage against him.
One more point about alleged co-conspirators. In the wake of yesterday’s invasion, Diosdado Cabello Rondón, who is incorporated into the narco-trafficking charge and was already in 2020, was the first person to call for calm, calling the Americans terrorists.
At the crack of dawn, Diosdado Cabello, the regime’s second-in-command, appeared on state-run Venezolana de Televisión, clad in tactical vest and helmet and surrounded by members of the political police. Cabello called the U.S. attack “treacherous and vile” and urged his supporters “not to lose their composure, to avoid despair.” “Avoid situations that favor the invading enemy,” he said. Cabello questioned the role of “international organizations” in this crisis, accusing them of being “complicit in a massacre of civilians.” The leader addressed his men on camera with the two central slogans of the regime’s security forces: “Always loyal, never traitors” and “To doubt is treason.”
This analysis of the aftermath notes that you’d have to take out more of Maduro’s aides, including Cabello, to defeat his government.
For more than a decade, real power in Venezuela has been held by a small circle of senior officials. Analysts and officials say though that the system depends on a sprawling web of loyalists and security organs, fueled by corruption and surveillance.
Within the inner circle, a civilian-military balance reigns. Each member has their own interests and patronage networks. Currently Rodriguez and her brother represent the civilian side. Padrino and Cabello represent the military side.
This power structure makes dismantling Venezuela’s current government more complex than removing Maduro, according to interviews with current and former U.S. officials, Venezuelan and U.S. military analysts and security consultants to Venezuela’s opposition.
“You can remove as many pieces of the Venezuelan government as you like, but it would have to be multiple actors at different levels to move the needle,” said a former U.S. official involved in criminal investigations in Venezuela.
A big question mark surrounds Cabello, who exerts influence over the country’s military and civilian counterintelligence agencies, which conduct widespread domestic espionage.
“The focus is now on Diosdado Cabello,” said Venezuelan military strategist Jose Garcia. “Because he is the most ideological, violent and unpredictable element of the Venezuelan regime.”
Donald Trump conducted a months-long operation to carry out an arrest, he claims. But somehow they left behind someone alleged to be just as culpable in the headline charges of the indictment, Cabello.
Disavowing democracy in attempting to negate Maduro’s immunity claim
Yesterday, Trump and Marco Rubio claimed that Maduro’s Vice President, Delcy Rodriguez, would do as she was told. Then she went on TV and said Maduro was still the president and Venezuela would never again be the colony of an empire. It’s unclear whether she’s misleading Marco Rubio or the Venezuelan people, or simply trying to find middle ground.
But her claim to authority only comes through Maduro.
And that’s important because, as Oona Hathaway explained this in an interview with Isaac Chotiner, whether or not Maduro is and was a head of state is central to what will surely be an attempt to claim he is immune from all this.
What do you mean, exactly, about his “seizure and indictment”? Venezuela had an election. It was not a free election. He declared himself President, and he’s broadly recognized as the President of Venezuela, but, again, he was not freely elected by the people of Venezuela. That could justify his indictment in an American court?
I should back up. As part of this military operation, at least one of the key goals seems to have been the capture of Maduro and his wife, who have been indicted for criminal charges in the Southern District of New York. The only way they can do that is if they’re claiming that he’s not a head of state, because heads of state get immunity and heads of state are not subject to criminal prosecution in the domestic courts of other states. That’s just a basic rule of international law. The United States has long recognized it.
So you were not saying that the fact that he stole an election per se means you can grab him and try him in an American court but, rather, that if he were not a head of state, that would at least allow for trying him in an American court, which normally would not be the case?
Right. So if he’s not actually a head of state, then head-of-state immunity doesn’t apply. And it’s connected to this broader question of the use of military force in that it may be that they would make a claim—although I haven’t yet seen this—that because he’s not the legitimate head of state that somehow they have a legal authority to use force to grab him. But, again, the two don’t connect. So the problem is that merely saying that he’s not head of state doesn’t then justify the use of military force in Venezuela.
[snip]
So if Maduro goes to trial in an American court, is this going to be a contested legal issue about whether he can even be tried based on whether he is the head of state of Venezuela? Is that something that American courts are going to have to weigh in on?
Yes, it is something that the American courts are going to have to weigh in on. It definitely is the case that his lawyers will make the argument that he’s a sitting head of state at the time that he was seized and that he remains the sitting head of state and therefore, under international law and under U.S. law, he should be given immunity, which means that he’s not subject to the jurisdiction of U.S. courts and can’t be criminally charged. This has come up once before with the criminal indictment of Manuel Noriega, the former leader of Panama, when the U.S. invaded Panama in 1989 and seized Noriega and then brought him back to the United States and indicted him for drug smuggling and money laundering.
Back then, Noriega argued that he enjoyed head-of-state immunity, and the executive branch argued that he didn’t because the United States had not recognized him as a legitimate leader of Panama. That gives us a hint as to what is likely to happen in this case. My guess is that the United States will argue that it’s never recognized Maduro as a legitimate leader of Venezuela and therefore he doesn’t receive immunity. And the courts are going to be in the position of having to decide whether they defer to the executive branch’s determination that he’s not head of state or whether they make an independent assessment of his legitimacy as a leader of Venezuela.
How did the Noriega case play out?
In the Noriega case, the courts deferred to the executive branch. They said they were going to accept that the executive branch said that he’s not a constitutional head of state, and therefore he can, in fact, be prosecuted.
Seems quite possible they will do so again now.
It seems likely they’re going to do the same thing. I mean, this is a weaker argument on the part of the executive branch.
Both indictments attempt to deal with this issue. The 2020 one does so by pointing to the US’ 2019 endorsement of Juan Guaidó.
In or about 2018, MADURO MOROS declared victory in a presidential election in Venezuela. In or about 2019, the National Assembly of Venezuela invoked the Venezuelan constitution and declared that MADURO MOROS had usurped power and was not the president of Venezuela. Since in or about 2019, more than 50 countries, including the United States, have refused to recognize MADURO MOROS as Venezuela’s head of state and instead recognized Juan Guaidó as the interim president of Venezuela. In or about January 2020, the United States Department of State certified the authority of Guaidó, as the interim president of Venezuela, to receive and control property in accounts at the United States Federal Reserve maintained by the Venezuelan government and the Central Bank of Venezuela.
The Trump Administration went all-in on declaring Guaidó interim president and … that went nowhere.
This equivalent paragraph in the newly unsealed indictment doesn’t say who runs Venezuela.
5. NICOLAS MADURO MOROS, the defendant, a Venezuelan citizen, was previously the President of Venezuela, and is now, having remained in power despite losses in recent elections, the de facto but illegitimate ruler of the country. MADURO MOROS also previously held a seat in Venezuela’s National Assembly between in or about 2000 and in or about 2006, acted as the Venezuelan Minister of Foreign Affairs between in or about 2006 and in or about 2013, and acted as the Vice President of Venezuela in or about 2013. MADURO MOROS succeeded to the Venezuelan presidency after former President Hugo Chavez died in or about 2013 and, during MADURO MOROS’s own presidency, continued to participate in cocaine trafficking with drug dealers and narco-terrorist groups. In or about 2018, MADURO MOROS declared victory in a disputed and internationally condemned presidential election in Venezuela. In or about 2019, Venezuela’s National Assembly invoked the Venezuelan constitution and declared that MADURO MOROS had usurped power and was not the legitimate President of Venezuela. Nonetheless, MADURO MOROS continued to exercise the powers of the Venezuelan presidency, causing more than 50 countries, including the United States, to refuse to recognize MADURO MOROS as Venezuela’s head of state. In or about 2024, Venezuela held another presidential election that was again widely criticized by the international community, in which MADURO MOROS declared himself the winner despite widespread condemnation.
Most independent observers believe Edmundo González won last year’s election. María Corina Machado just won a Nobel Prize as the leader of the opposition (though she claims González is the rightly elected President).
Yet not only doesn’t this indictment name either of them, yesterday Trump said of Machado, “She’s a very nice woman, but she doesn’t have the respect.”
I’ll leave it to experts like Hathaway to unpack whether Trump’s explicit denial of those with a real democratic claim to power has any impact on an immunity claim that Maduro is sure to mount. Her observation that SCOTUS, especially this SCOTUS, will likely defer to the Administration.
I’m simply observing that this indictment was designed, from the start, to rely on illegitimate claims about the lawful president in Venezuela. It had puppet power built into it.
Again, none of this says that the guts of this indictment are suspect. They’re not.
But it’s the packaging of it — a shift that occurred since Trump last indicted Maduro in 2020 — that could have significantly broader repercussions.
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Back before everyone checked out for the holidays, I did an inventory of the progress we’ve made in four ways to fight fascism (in comments ApacheTrout reminded I should have the courts in there too).
The Erica Chenoweth rule, which says that if you can get 3.5% of a population in the streets, it often leads to regime change.
Beginning to peel off four people in the Senate or eight or nine people in the House.
Rescuing Republicans from a predictable catastrophe like Democrats did in 2008 and 2020.
Waiting until 2026, winning at least one house of Congress, and beginning to rein in Trump that way.
I wrote it intending to kick off the new year with a post of things we can do, or do better. Here we are!
But first, let me explain where I’m coming from. Much of what follows builds on my belief that we’ve been fighting Donald Trump wrong.
Polarization is his superpower. It’s how he has gotten out of every single one of his political jams in the past: by turning his own scandal into a polarizing pivot, thereby turning his own failures and crimes into a matter of tribalism. Once he has done that, he invents some new bullshit story (usually stoking grievance), and getting right wingers to believe it because of that polarization.
This is why I’m such an asshole about the way people serve as data mules for Trump’s tweets: because those damn things are little polarization machines, which always serve to make him the center of attention around which society is re-polarized.
The way to combat someone whose superpower is polarization is not to exacerbate that polarization. It is to use his own tools — grievance and conspiracism — against him.
Back in May, before the Epstein files had created a full-blown crisis for the Trump Administration, Phil Bump and Mike Rothschild wrote about how conspiracism can undermine someone with power (which I added to here).
Discovering Trump was the villain of the Epstein scandal in which she had an unshakeable belief
Opposing Gaza (probably for horrible Jewish space laser reasons) and crypto currency (for justifiable reasons inflamed by conspiratorial thinking)
Seeing Trump mock affordability
After all that (but while she still had her courage), being targeted by Trump mobs
Packaging that in a morality tale, Christianity, whence she derived moral value
Simplifying and ignoring her potential political ambitions, Trump became the thing everyone suspected was being hidden in the Epstein files, and that led to cognitive dissonance that led MTG to revisit a lot of her other differences with Trump.
So some of my logic, below, is simply to focus on the things that are likely to get Trump supporters or sympathizers to feel betrayed by him including by holding people close to him accountable for shitty things we are pretty sure are going to occur. It includes:
Treat Epstein as the base layer
Focus on the Broligarchs and AI
Emphasize Trump’s loser stench
Visualize Trump’s corruption
Brand Trump as the criminal he is
Hold Stephen Miller accountable for his failures
Visualize how Stephen Miller took money for cancer research and veterans care to pay for a goon army snatching grandmothers
Discredit Key Spokespeople
Use Trump’s claimed opposition to antisemitism against him
Reclaim disinformation research
One more point about this. This post is not a To Do list for the DNC (though some people on Bluesky will undoubtedly treat it as such). It’s a To Do list for myself, most of all, but one that others can borrow if they find it useful. Many of these things are attentional activities that are about repetition and focus as much as congressional oversight or electoral politics.
These are meant to be stories we can tell, regardless of what someone in Congress or some candidate in Iowa does.
Treat Epstein as the base layer
Remember that Marc Caputo column — it was published on December 23 — stating that the Epstein releases could last a whole ‘nother week? On the day that would mark that week, December 30, Devlin Barrett published a story saying that, “The document review” of what is now believed to be 5.2 million documents “is expected to take until at least Jan. 20, according to a person familiar with the matter.” Even if they could finish it by January 20 (they won’t), that’ll just be the first go-around. DOJ has not done what they need to do to document the redactions, so there’ll be demands from Congress for them to do that (with obvious areas — including DOJ names and some deliberative documents specifically included in the law, where they’re in violation), they’ll need to repeat the entire process over again, Congress will begin to bring more legal pressure, and all the while survivors will be pointing out things they missed.
A week, Marc Caputo reported, as if that were credible!
This will go on for some time. This will go on for a very long time.
Still, while the Epstein scandal has been absolutely instrumental in loosing Trump’s grip on things, people are naive in thinking that will be enough. “My friends will get hurt,” Trump predicted, but what does it really mean for Trump’s power that Les Wexner has been implicated in the Epstein scandal as a co-conspirator? What is the use of creating right wing cognitive dissonance about Les Wexner, when Wexner is not the oligarch currently helping Trump destroy the country?
In my opinion, the Epstein scandal is a tool. It undercuts Trump’s ability to grab and redirect attention. It can create moments of cognitive dissonance, as it did for MTG. It is a way to turn Trump’s conspiracism and populism against him and may make other related narrative lines more salient. And if there’s a surprise disclosure — perhaps about Melania’s origin story — all the better. But as you keep the focus on Epstein, remember that there needs to be a direction beyond Epstein as well, a direction which incorporates the oligarchs who are still key players in Trump’s network of power.
Focus on the Broligarchs and AI
The Broligarchs who’ve been a key part of Trump’s power are one way to do that (and that’s before we’ve really gotten into Steve Bannon and Peter Thiel’s ties to Epstein).
Tesla Takedown was one of the most successful campaigns of 2025. At a time when Tesla faced cheaper competitors worldwide, the protests incurred a cost on Musk for his DOGE depredations.
Elon was installed in the White House in significant part by fellow South African “alien invader” David Sacks, who is even more conspiratorial and even more pro-Russian than Musk. Sacks was installed in the White House as a Special Government Employee (who, Elizabeth Warren suggests, has overstayed his welcome) to force a bunch of policy decisions that suck for America but ensure that Broligarchs won’t pay any consequences for their rash business deals. When one or both of crypto and AI crash (this is a really good story on how and why AI will burst), he’ll be there to ensure the government bails them out, as he did after playing a role in the failure of Silicon Valley Bank.
And even as Trump sheds support based on his mockery of affordability, even as MTG split with Trump over that and his support for crypto, Sacks is trying to brand Democrats as being more populist than even Zohran Mamdani is.
Fine. You want Democrats to be the party attending to the needs of working people? You’ve just made the GOP the party of “alien invader” billionaires who got tax cuts as millions lost their health care.
Sacks and the other Broligarchs are going to do something for which they’ll try to dodge accountability. Now is the time to make sure his name comes up as people look for culprits.
Emphasize Trump’s loser stench
Another thing that will lead people to defect is to realize that Trump is a loser. He has done things — like the takeover of the Kennedy Center — that makes it easy to demonstrate he’s a loser in tangible fashion. Better still, every time Trump attaches his name to something, it provides an opportunity to hijack that brand, as comedian Toby Morton auspiciously managed to do by anticipating Trump’s most venal instincts and buying the domain.
The same is true of his businesses. Trump and his entire family is getting rich off the presidency 2.0. But his businesses are built as cons, sometimes Ponzi schemes. The idea is to leverage the loyalty of MAGAts to get them to invest in something, run up its value, only to collapse, leaving the most vulnerable screwed. In the past, at least, the cult effect was such that even MAGAts bilked by Trump associates, as with Steve Bannon’s Build the Wall graft, were reluctant to turn on the fraudsters; that may change. But at the very least, the volatile nature of Trump’s frauds makes it easy to show that as a businessman, he’s a loser.
Visualize Trump’s corruption
While there has been good reporting on Trump’s corruption — see, for example, NYT’s nifty visualization from New Year’s Eve — there has not been a systematic effort to take on his corruption.
Nevertheless, possibly because of the Epstein scandal, a majority of the country does think Trump is corrupt.
That may actually not be in a bad place to be as we move into 2026. That’s because Democrats can make Republican inaction in the face of Trump’s corruption a campaign issue (and then, if it leads to a Democratic sweep in midterms, the electoral buy-in will be in place to do a lot of oversight and defunding of Trump’s corruption).
Trump’s pardons are similar. There’s actually a solid stream of reporting on how corrupt they are, without yet any political direction to it. Democrats running against Republican incumbents — especially in the Senate — should state as presumed that it is the job of Senators to respond to the kind of naked corruption Trump is engaged in.
Where activists can magnify the good reporting on both Trump’s corruption and his pardons is to focus on the victims. This is actually showing up in the reporting on both topics. WaPo focused on the victims of Trevor Milton who might have gotten restitution had Trump not pardoned him. LAT similarly focused on the victims fucked over by Trump’s pardon of David Gentile.
Rosenberg, a retired wholesale produce distributor living in Nevada, has supported Trump since he entered politics, but the president’s decision in November to commute the sentence of former private equity executive David Gentile has left him angry and confused.
“I just feel I’ve been betrayed,” Rosenberg, 68, said. “I don’t know why he would do this, unless there was some sort of gain somewhere, or some favor being called in. I am very disappointed. I kind of put him above this kind of thing.”
Trump’s decision to release Gentile from prison less than two weeks into his seven-year sentence has drawn scrutiny from securities attorneys and a U.S. senator — all of whom say the White House’s explanation for the act of clemency is not adding up. It’s also drawn the ire of his victims.
“I think it is disgusting,” said CarolAnn Tutera, 70, who invested more than $400,000 with Gentile’s company, GPB Capital. Gentile, she added, “basically pulled a Bernie Madoff and swindled people out of their money, and then he gets to go home to his wife and kids.”
This superb Bloomberg story on the extent to which the Juan Orlando Hernández pardon unraveled years of work starts with a murder arranged by the network.
Five minutes later, González was circling a roundabout when a gray van braked in front of him. At the same time, a green SUV crowded his rear bumper. A motorcycle carrying two men emerged on his left. A man on the back of the bike fired six shots through the driver-side window. González’s head slumped toward his shoulder, and he tilted forward, held upright by the seatbelt. He died instantly.
More than a dozen men streamed out of the two vehicles that had sandwiched his Nissan. They scrambled to collect the spent shell casings on the ground, then scattered other casings across the pavement—decoys to complicate ballistics tracing. They jumped back into their vehicles, circled the roundabout and took the same road Julián had just driven down.
When they approached the Slaughterhouse, the gates opened to let them in, then closed behind them.
Every one of these pardons has a victim — and that’s before you get into the people newly victimized by people who’ve been pardoned by Trump, which NYT covered in November and others are tracking as well.
A New Jersey fraudster who was pardoned by President Trump in 2021 was sentenced to 37 years in prison this month for running a $44 million Ponzi scheme, one of a growing number of people granted clemency by Mr. Trump only to be charged with new crimes.
The man, Eliyahu Weinstein, was pardoned by Mr. Trump in 2021 and was re-indicted by the U.S. attorney’s office in New Jersey three years later. He was accused of swindling investors who thought their money was being used to buy surgical masks, baby formula and first-aid kits bound for Ukraine, and a jury convicted him in April of several crimes, including conspiracy to commit securities and wire fraud.
[snip]
Some of those pardoned for their role in the Jan. 6, 2021, riot at the U.S. Capitol have quickly drawn new attention from law enforcement. The group Citizens for Responsibility and Ethics in Washington said in June that at least 10 of the more than 1,500 who were pardoned had been rearrested and charged, and the number has only grown since then.
Earlier this month, a man who was pardoned after having participated in the Jan. 6 attack was charged with sex crimes against two children. Another man whose original sentence Mr. Trump commuted in 2021 was recently sentenced to 27 months in prison after convictions on physical and sexual assault, among other crimes.
These stories provide an important way to explain the costs of Trump’s corruption.
Brand Trump as the criminal he is
And while we’re talking about telling these stories: We must never ever cede the ground of crime to Stephen Miller’s attempt to brand immigrants as criminals.
Trump — a felon who freed hundreds of cop assailants on his first day on the job — has an entire infrastructure devoted to trying to spin brown people as criminal. Every time that infrastructure goes into action, including with the effort to brand Somalis in Minnesota as inherently fraudulent when Trump himself is a serial fraudster, we need to repeat, relentlessly, that Trump is a serial criminal who coddles other criminals.
This is something Gavin Newsom just started doing, with an entire website devoted to cataloging Trump’s crime and that of his pardon recipients.
Do not let a conversation about crime go by without focusing on how much of it Trump does.
Crime, in Trump’s era, is a rich white man’s thing. And while it will take a lot of work to adjust a lot of racist priors, until people start seeing Trump as a criminal it will be far too easy for them to make excuses for him.
The import of shifting how we speak of Miller’s considerable power is clear. That’s true because he frankly has done huge damage, even to Trump’s goals, and well more so to average Americans. He’s someone that people, including Republicans, can scapegoat for Trump’s failures (and they’ll be right). And if we don’t make sure that happens, then he’ll scapegoat brown people.
Again, are Somali day care workers or billionaires systematically defrauding average people the problem? One easy to way to drown out Miller’s case that it’s the former is to make it clear how much he personally has harmed average Americans.
Visualize how Stephen Miller took money for cancer research and veterans care to pay for a goon army snatching grandmothers
But it still retains support of a big chunk of the population, probably because Trump officials routinely blame their own failures to address American problems on migrants, when as often as not, Trump’s response to immigration is the source of the problem.
America can’t have nice things, like cures for cancer and welcoming public schools, because Republicans in Congress took the money used to pay for those things and gave it to Stephen Miller to use to invade America’s neighborhoods.
Discredit Key Spokespeople
Right wingers like Jonah Goldberg and David French have expressed alarm by an old promo for a 60 Minutes piece (the piece itself was from October) that an influencer reposted yesterday, describing dozens of times when the government lied in court filings.
Judges have caught Trump’s DOJ in several major lies since then. In Chicago, Judge Sara Ellis wrote a 233-page opinion documenting the many lies DHS has told about their Chicago invasion.
And in December, judges in both Kilmar Abrego’s case caught the government obfuscating. In the criminal case, on December 30, Judge Waverly Crenshaw unsealed a December 3 opinion describing how Nashville’s US Attorney lied about how centrally involved Todd Blanche’s office was in demanding Abrego face trial.
The central question after Abrego established a prima facie case of vindictiveness is what information in the government’s control sheds light on its new decision to prosecute Abrego, after removing him from the United States without criminal charges. These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with Singh and others. (Doc. No. 178-1). Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences. For example, Singh contacted McGuire on April 27, 2025, to discuss Abrego’s case. (See Doc. No. 229 at Abrego-Garcia000001). On April 30, 2025, Singh asked McGuire what the potential charges against Abrego would be, whether the charging document would reference Abrego’s alleged MS-13 affiliation, and asked for a phone call before any charges were filed. (Id. at Abrego-Garcia000007–000008). In a separate email on April 30, 2025, Singh made clear that Abrego’s criminal prosecution was a “top priority” for the Deputy Attorney General’s office (Blanche). (Id. at Abrego-Garcia000037). He then told McGuire to “sketch out a draft complaint for the 1324 charge [making it unlawful to bring in and harbor certain aliens].” (Id.). On May 15th, McGuire emailed his staff that “DAG (Blanche) and PDAG would like Garcia charged sooner rather than later.” (Id. at Abrego-Garcia000060).
And as I’ve already noted, Judge Paula Xinis cataloged the many deliberately ignorant declarations DOJ filed about whether DHS had deportation plans for Abrego when she ruled that he must be released.
Respondents showcased Cantú’s ignorance about the content of his Declaration pertaining to Costa Rica. As the pointed questions of Respondents’ counsel made clear, Cantú’s lack of knowledge was planned and purposeful.
Counsel: So paragraph 4, final sentence [of the Cantú Declaration], do you see where it says the word—the words “certain understandings”?
Cantú: I found it. Yes, I do. I see it.
Counsel: What are the certain understandings referenced in the last sentence?
Cantú: I don’t know . . .
Counsel: What are the “contingencies” referenced in the last sentence?
Cantú: I do not know . . .
Counsel: What are the “interim developments” referenced in paragraph 5?
Cantú: I don’t know.
ECF No. 107 at 26:8–27:12 (counsel for Respondents, Jonathan Guynn (“Guynn”), questioning Cantú). See also id. at 53:8–9 (Guynn, at sidebar with Court, stating “I’ll just say I told you this was exactly what was going to happen,” regarding the witness’ ignorance on Costa Rica as a viable country of removal).
Ultimately, Respondents’ calculated effort to take Costa Rica “off the table” backfired. Within 24 hours, Costa Rica, through Minister Zamora Cordero, communicated to multiple news sources that its offer to grant Abrego Garcia residence and refugee status is, and always has been, firm, unwavering, and unconditional.
It’s a problem that, after huge scoldings like these, right wing critics of Trump don’t understand how much Trump’s people lie — not least because the Supreme Court still credits the most outlandish claims Trump makes, even after they’ve been thoroughly debunked by lower court judges.
Many of these lies are coming from the same people: Stephen Miller, Todd Blanche’s office, DHS spox Tricia McLaughlin, and Greg Bovino.
It is remarkable that so many of these people have been caught lying to courts (or publicly, about people before courts). But it needs to become common knowledge for everyone, so every time Tricia says something, they start from the assumption she’s lying, because she almost always is.
There comes a time when the credibility of systematic liars not named Trump collapse entirely such that every utterance they make discredits the claims they try to sell. Tricia McLaughlin, at least, is close those levels of propaganda, and Stephen Miller is not far behind.
Use Trump’s claimed opposition to antisemitism against him
Within days of his inauguration last year, Trump signed an EO — adding to one he signed in 2019 — claiming to oppose antisemitism. There has been some discussion about the bad faith of this EO and a DOJ lawyer implementing it, Michael Velchik, once wrote a paper from Hitler’s perspective. While it is explicitly targeted at universities (and has been a key tool to attempt to takeover universities), it nevertheless claimed to oppose antisemitism everywhere.
It shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.
This is the kind of statement of principle that can form the basis of political pressure — particularly as the MAGAt movement splinters around the overt antisemitism of people like Nick Fuentes and Candace Owen, and as political opportunists like Ted Cruz attempt to exploit that splinter.
We’re going to have to fight this battle in any case. As part of the revocation of everything Eric Adams did after he was indicted for bribery yesterday, Zohran Mamdani revoked an EO that gave Israel preferential treatment, which Israel is using to stoke division; yet Mamdani preserved the office Adams opened to combat antisemitism.
We need to call out the dripping antisemitism of Trump’s team, from top (at least JD Vance, who refuses to disavow Fuentes) to bottom.
There are two key Trump aides who should be targeted. Most notably, Paul Ingrassia, who had to withdraw his nomination to be Special Counsel after Politico exposed texts in which he confessed to a Nazi streak been installed at GSA instead. In addition, Kingsley Wilson became DOD spokesperson in spite of Neo-Nazi comments. NPR has done good work unpacking these ties.
Reclaim disinformation research
Republicans plan on exporting fascism via US tech platforms.
That’s not new. I’ve been talking about Elon’s plans to use Xitter as a machine for fascism for some time.
And, in the wake of the EU’s sanctions against Elon Musk for — basically — lying about why I have a blue check, Marco Rubio stripped the visas of five people, including US Green Card holder Imran Ahmed, a long time adversary of Elon’s.
But there are several developments that suggest it is time to renew efforts to defend disinformation research, not least the White House’s absurd effort to attack real journalism, what is sure to be a snowballing failure on Bari Weiss’ part to make propaganda popular, and the meltdown the head of DOJ’s Civil Rights division, Harmeet Dhillon, had over the holidays about right wing “misinformation” targeting Pam Bondi.
The right wingers are doing what they themselves established is unlawful. And that presents both political and legal opportunities to demonize their propaganda.
Some people write short resolutions. I guess I write 4,000-word To Do lists. Join me in my efforts!
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My previous post was about an article titled What Are We Living Through by Jedediah Britton-Purdy and David Pozen. The authors offer three scripts people use to answer the title question.
It seems odd that the authors, both law professors, don’t address the role of SCOTUS, but it’s probably because people don’t think about the role of SCOTUS in creating this disastrous presidency. But thinking about SCOTUS clarifies the situation. The Trump regime isn’t a sudden turn, as centrists and almost all Democratic politicians say. It is part of a long project, funded by an ever-changing group of filthy rich right-wing White people. One of their first overt steps was taking control of SCOTUS.
Gaining control of SCOTUS
Appointments to SCOTUS have had been virulently political at least since the nomination of Robert Bork was stymied by Democrats, based largely on “… his outspoken criticism of the Warren and Burger Courts and his role in the Saturday Night Massacre.“ The filthy rich loved Bork both for his right-wing politics and for his devotion to their interests.
The Federalist Society was formed in 1982 by students at Harvard, Yale and University of Chicago law schools “… with the aim of challenging liberal or left-wing ideology within elite American law schools and universities.” Bork and Antonin Scalia spoke at their first public event. The Wikipedia entry says this about early funding
… $5.5 million came from the John M. Olin Foundation. Other early donors included the Scaife Foundation, the Bradley Foundation[ and the Koch family foundations. Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family.
Readers will recognize those right-wing operations run by inheritors of great wealth.
Leonard Leo founded the Cornell branch of the Federalist Society and moved on to employment there. Under his leadership, five of the current members of SCOTUS are members of the Federalist Society.
Hacking at democracy
Once right-wing ideologues took over SCOTUS, they began hacking away at laws intended to protect our democracy. They got rid of campaign finance laws, eviscerated anti-corruption laws, wrecked the Voting Rights Act, authorized gerrymandering, and gave the filthy rich nearly everything they wanted. In the process, they ignored or dismantled guardrails on their own power, rules like standing, justiciability, and minimal decisions; they took on the role of determining facts (a role supposedly played by trial courts) and ignored stare decisis, the fundamental basis of US Constitutional law. Trump v. US freed Trump from criminal liability for anything remotely related to the office of President.
These cases had a huge impact, not least of which was the election of Donald Trump to a second term
Weakening Congress
Gerrymandering and toothless campaign laws enabled the Republicans to control the House of Representatives. Structural features of our system, including equal representation of states in the Senate and the filibuster made it possible for the Republicans to prevent congressional action.
SCOTUS compounded this weakness by striking down legislation it didn’t like. For example, John Roberts has a long-standing hatred of the Voting Rights Act. In Shelby County v. Holder he struck down the provision requiring certain states with a long history of racial discrimination in voting to submit all changes to their voting laws for pre-clearance. This procedure enabled the Department of Justice to review those laws for racial discrimination before they were allowed to take effect.
Roberts justified his decision with a newly-invented fiction he called the dignity of the states. Congress.he said, hadn’t done enough to satisfy Roberts that pre-clearance acted reasonably by singling out states with a history of racist actiions, somehow explaining away the express grant of such power toCongress in the 15th Amendment. Effectively Roberts set himself up as the arbiter of whether Congress had done enough to justify a rule he didn’t like.
Strengthening Trump
In Trump v. Andeerson, SCOTUS held that only Congress can enforce the 14th Amendment’s insurrection clause, effectively neutering it. In Trump v. US the current majority held that the president cannot be held accountable for crimes he commits that the current majority says are within the core executive functions of the president. These two cases cleared the way for Trump to run again.
Because there were no enforceable limitations on campaign finance, Trump was able to raise hundreds of millions from the filthy rich and got a second term. He promptly began breaking laws. He destroyed entire agencies and weakened the rest of them, he set masked gunsels to snatch people off the street if they looked like not-white people (an action permitted as Kavanaugh Stops), refused to comply with Congressional appropriation laws, fired heads of independent agencies, fired tens of thousands of federal employees, and more. SCOTUS has at least temporarily allowed all these assaults on Congress’ express Constitutional power, explaining that Trump wants it and if he can’t have it that’s a terrible injury, worse than allowing ICE to kidnap people.
Political discourse
I think Purdy-Britton and Pozen are mostly right about the nature of political discourse, and that’s a problem. Their three scripts don’t include this partial list of horribles about the current SCOTUS majority. Concentrating only on the marauding president is simply not good enough to deal with our situation. The Supreme Court has also lost its legitimacy and done terrible damage to our democracy in the process.
I agree with an opinion piece in The Guardian written by Ryan Doerfler and Samuel Moyn, law profs at Harvard and Yale, titled It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced. This article summarizes a longer paper, The Post-Legitimacy Court.. Both of these deserve more consideration than I give them here.
The paper cites Planned Parenthood of Southeast Pennsylvania as a major source of the idea of legitimacy:
“The Court’s power lies in its legitimacy,” Justices Kennedy, O’Connor, and Souter explained in their joint opinion, “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary fit to determine what the Nation’s law means and to declare what it demands.”
The authors say that the current majority has abandoned the goal of preserving legitimacy, suggesting that they
… might care about the views only of other conservatives (whether lawyers or the public) [which] would be consistent with the larger turn in Republican politics.
The authors discuss responses by some of my favorite legal writers. law profs Kate Shaw from the Strict Scrutiny podcast, and Steve Vladek. The authors say, and I agree, that their reactions to this Court are too legalistic and restrained. Doerfler and Moyn say the current majority has moved the Court’s institutional legitimacy to the brink of cliff, and citizens need to push it over the edge.
I agree, and would go farther. The current majority is not a court. It’s a group of six political actors no different from the majority of a congressional committee. Each member has goals, and these mostly coincide with the goals of the Republican Party and its largest donors. They have the votes and that’s all that counts. The current majority has rejected national legitimacy in favor of the exercise of raw power.
I always blame Roberts personally for every evil thing Trump does. Here’s an example.
Hammer the Court whenever you get the chance, on social media and in real life. It’s the first step to change.
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https://www.emptywheel.net/wp-content/uploads/2011/02/USSupremeCourtEast_matt.h.wade-Flickr.jpg375500Ed Walkerhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngEd Walker2026-01-01 19:59:442026-01-15 18:34:47How SCOTUS Got Us Here
