emptywheel Archives - Page 2 of 253

Self-Reportation: Pete Hegseth’s Witch Hunt Ensnared Himself

April 21, 2025/78 Comments/in emptywheel /by emptywheel

As I wrote here, three top Pete Hegseth aides were ousted (most reports continue to use the passive voice) last week, purportedly in the witch hunt he started to look for the sources of various suspected leaks. Longtime Trump press aide John Ullyot also resigned or was asked to, depending on whom you believe.

That seems to have precipitated the exposure — first by NYT — that Whiskey Pete Hegseth had a second Signal chat, one he himself curated. Although the list, which dates back to before Hegseth’s confirmation, purports to convey administrative and scheduling details, Hegseth included roughly the same Houthi attack information that he shared on the Signal thread that included Jeffrey Goldberg.

That means he shared it with people who didn’t have a need to know — his brother and his lawyer, Tim Parlatore — and his spouse, who is not a DOD employee at all (even though she babysits him in important meetings).

[T]he information Mr. Hegseth shared on the Signal chat included the flight schedules for the F/A-18 Hornets targeting the Houthis in Yemen — essentially the same attack plans that he shared on a separate Signal chat the same day that mistakenly included the editor of The Atlantic.

Mr. Hegseth’s wife, Jennifer, a former Fox News producer, is not a Defense Department employee, but she has traveled with him overseas and drawn criticism for accompanying her husband to sensitive meetings with foreign leaders.

Mr. Hegseth’s brother Phil and Tim Parlatore, who continues to serve as his personal lawyer, both have jobs in the Pentagon, but it is not clear why either would need to know about upcoming military strikes aimed at the Houthis in Yemen.

[snip]

Mr. Hegseth created the separate Signal group initially as a forum for discussing routine administrative or scheduling information, two of the people familiar with the chat said. The people said Mr. Hegseth typically did not use the chat to discuss sensitive military operations and said it did not include other cabinet-level officials.

Mr. Hegseth shared information about the Yemen strikes in the “Defense | Team Huddle” chat at roughly the same time he was putting the same details in the other Signal chat group that included senior U.S. officials and The Atlantic, the people familiar with Mr. Hegseth’s chat group said.

Sharing the attack details with his spouse put him at far greater exposure of willful violation of 18 USC 793, sharing National Defense Information with someone not authorized to receive it.

Of the 13 people that AP reports were in the thread, NYT identifies the following:

Hegseth
His wife Jennifer
His brother Phil
His lawyer turned DOD employee Tim Parlatore
DOD spox Sean Parnell
Chief of Staff Joe Kasper (who reportedly is moving elsewhere)
Dan Caldwell (who was also on the Goldberg list) …
And Darin Selnick, the latter two of whom were ousted in Kasper’s witch hunt last week

NYT does not say that either Colin Carroll — also fired last week — or Ullyot participated in the chat, though Ullyot was a booster during his confirmation and so by definition could have.

But everyone who participated in the chat would be witness to Hegseth sharing data he insists is not classified, but which a jury could easily find to be National Defense Information because its sharing could obviously put service members at risk. In Espionage Act cases, a jury decides whether something is NDI.

NYT implies that this thread differs from the Mike Waltz one because Hegseth used his personal device, but I’m not sure there’s any confirmation that he used a DOD device for the Waltz chat, either. (John Ratcliffe used his personal device, and Tulsi implied she had in congressional testimony; Marco Rubio had two versions of the thread and so probably two different devices).

In either case, Hegseth’s thread includes a stupid mixture of public and private, and the administrative details on the thread alone, to say nothing of the Houthi attack details, would mean the Federal Records Act covers the thread. By law Hegseth has to make copies of the thread and archive it on DOD servers.

There’s increasing reason to believe that the witch hunt Hegseth initiated on March 21 led to this place — has created and is creating more risk going forward. That is, it increasingly looks like the paranoid witch hunt that Hegseth started in March may now ensnare him personally, if no other way than making those targeted willing to share secrets they were otherwise keeping about Hegseth but now have incentive to share to exonerate themselves.

Hegseth himself tied the story directly to the firings last week at an appearance at the White House today.

You know, what a big surprise that a bunch of — a few leakers get fired and suddenly a bunch of hit pieces come out from the same media that peddled the Russia hoax, won’t give back their Pulitzers…

[snip]

This is what the media does. They take anonymous sources from disgruntled former employees and then they try and slash and burn people and ruin their reputation.

But the witch hunt also intersects with the legal response to the disclosure of the original thread in important ways.

As a reminder, Kasper ordered the investigation on March 21, between the time, on March 15, that Jeffrey Goldberg concluded Mike Waltz’ Signal chat was real and so dropped off the chat, and the time, on March 24, Goldberg first disclosed it. As I laid out here, one of the stories identified among the suspected leaks — on the deployment of the USS Vinson carrier group from the East China Sea to the Red Sea — overlaps with the original Houthi thread (and so could be among the texts exchanged after Goldberg dropped off).

In any case — as this timeline makes clear — the witch hunt was in process even as two separate legal responses to the Atlantic story, an American Oversight lawsuit and an Inspector General investigation requested by both Roger Wicker and Jack Reed — kicked off.

A CIA declaration submitted in the American Oversight lawsuit, which the government has construed to apply only to the Signal chat disclosed by Goldberg, confirmed that Ratcliffe’s copy of the text thread includes none of the substantive messages but did include metadata showing there were changes to the original Signal text thread made after the first disclosures of it, on March 26 and 28. Whoever made those changes is at risk not just of violating the FRA, but also obstructing the legal processes that started after Goldberg revealed the texts.

The declarations submitted by DOD (the first, reflecting a request that Hegseth forward a copy of the chat to DOD, a second, by a more senior lawyer, noting that a search of Hegseth’s mobile device was conducted and “available Signal messages … have been preserved,” and a third, noting that the screen shots of the Signal texts were taken on March 27) have been more ambiguous. As American Oversight noted in its most recent filing,

For example, rather than specifying which messages were preserved, the Supplemental DoD Declaration vaguely references the preservation of “existing Signal application messages,” which, as shown by the Supplemental Blankenship Declaration, could be none. Suppl. Bennett Decl. ¶ 2, ECF No. 15-1.

But in any case, DOD took those screen shots on a day between changes made to the list (and the day Wicker and Reed asked DODIG to investigate), and so might reflect the first set of alterations.

CNN describes that the three men ousted last week — Dan Caldwell, Darin Selnick, and Colin Carroll — will be interviewed in the IG investigation, an investigation about which (CNN reports) Hegseth is increasingly concerned.

Hegseth has also grown increasingly concerned about the inspector general investigation, the sources said. Caldwell, Selnick and Carroll expect to be interviewed as part of that probe, the sources added.

That all three will be interviewed is of some interest: only Caldwell was known to be on the Waltz Signal list. If DOD’s IG has reason to interview the other two, it suggests they may already have more reason to be interested in Hegseth’s other use of Signal. But as the NYT noted, “Mr. Hegseth’s aides” (a term not necessarily limited to those on the Signal chats) advised him not to discuss operational details on that chat.

One person familiar with the chat said Mr. Hegseth’s aides had warned him a day or two before the Yemen strikes not to discuss such sensitive operational details in his Signal group chat, which, while encrypted, is not considered as secure as government channels typically used for discussing highly sensitive war planning and combat operations.

[snip]

Several of these staff members encouraged Mr. Hegseth to move the work-related matters in the “Defense | Team Huddle” chat to his government phone. But Mr. Hegseth never made the transition, according to some of the people familiar with the chat who spoke on condition of anonymity to discuss internal deliberations.

I don’t rule out the possibility that Hegseth fired them all to make it impossible for Acting Inspector General Steven Stebbins to subpoena the men (rather than because of the witch hunt he attributed it to). But it sounds like they’re willing to submit to voluntary interviews at this point, if for no other reason then to vindicate their innocence.

Which brings me to a point I’ve obsessed about since the beginning. The witch hunt, as laid out by Joe Kasper, was never designed to be a normal leak investigation. For those, you make a referral right away to the FBI, describing the suspected leak and providing a list of all the people known to have access to the leaked material.

Instead, this leak investigation envisioned a report for Whiskey Pete, and referrals by Kasper if he discovered leakers he wanted to face further investigation.

This investigation will commence immediately and culminate in a report to the Secretary of Defense. The report will include a complete record of unauthorized disclosures within the Department of Defense and recommendations to improve such efforts. I expect to be informed immediately if this effort results in information identifying a party responsible for an unauthorized disclosure, and that such information will be referred to the appropriate criminal law enforcement entity for criminal prosecution

A paragraph added to CNN’s story (along with an April 4 story about which Hegseth was worried, one which could show up in Hegseth’s personal Signal list) describes that Hegseth “demanded” the FBI get involved but some of his aides dissuaded him because of the IG investigation.

Following the press reports — including one in The New York Times about the questionable success of a massive military campaign against the Houthis — Hegseth began to lash out and grew suspicious that senior military officials, as well as some of his closest advisers, were leaking to undermine him, the sources added.

At one point, Hegseth even demanded an FBI probe into the leaks — which some of his aides advised against, sources said. There was already an active inspector general investigation focusing on Hegseth, and bringing in the FBI might only invite more scrutiny, those aides advised. [my emphasis]

But this conversation should have happened before March 21, almost a week before DOD IG considered investigating. And the only reason aides would recommend against FBI involvement is if they were protecting people — perhaps themselves, perhaps those close to Hegseth, perhaps Hegseth himself — from criminal exposure.

That is, at least some of Hegseth’s aides worried that if the FBI got involved, they would discover a crime.

That’s not surprising. At least four of them witnessed Hegseth providing his wife information that a jury might decide was NDI.

Anyway, this probably is not done.

In a blockbuster op-ed claiming to support Hegseth but calling on Trump to fire him, Ullyot described things in (which decried the “horrible crisis-communications advice” offered by Parnell without naming him), “key Pentagon reporters have been telling sources privately” that, “more shoes to drop in short order, with even bigger bombshell stories coming this week.”

With the original thread, in which Hegseth unwittingly shared information on a pending attack with someone not authorized to receive it, there are already questions about whether Hegseth destroyed communications covered by the Federal Records Act. Now, he has fired at least three people, two of whom witnessed Hegseth wittingly share the same information with, at least, his spouse, and some of whom likely told him not to do so before he did.

Having fired them under cover of a leak investigation, he may make it much clearer to American Oversight, to DOD’s Inspector General, and to Congress, that he was the leaker he was looking for from the start.

Update: American Oversight amended their complaint today, incorporating Whiskey Pete’s family Signal list.

Update: NBC seems to confirm something that appeared obvious to me: Whiskey Pete used his personal device for both the Friends and Family thread and the Waltz one.

The material Kurilla sent included details about when U.S. fighters would take off and when they would hit their targets — details that could, if they fell into the wrong hands, put the pilots of those fighters in grave danger. But he was doing exactly what he was supposed to: providing Hegseth, his superior, with information he needed to know and using a system specifically designed to safely transmit sensitive and classified information.

But then Hegseth used his personal phone to send some of the same information Kurilla had given him to at least two group text chats on the Signal messaging app, three U.S. officials with direct knowledge of the exchanges told NBC News.

The sequence of events, which has not been previously reported, could raise new questions about Hegseth’s handling of the information, which he and the government have denied was classified. In all, according to the two sources, less than 10 minutes elapsed between Kurilla’s giving Hegseth the information and Hegseth’s sending it to the two group chats, one of which included other Cabinet-level officials and their designees — and, inadvertently, the editor of The Atlantic magazine. The other group included Hegseth’s wife, his brother, his attorney and some of his aides.

Hegseth shared the information on Signal even though, NBC News has reported, an aide warned him in the days beforehand to be careful not to share sensitive information on an unsecure communications system before the Yemen strikes, according to two sources with knowledge of the matter.

That raises the stakes on that second DOD declaration which describes that someone (the declaration uses the passive voice) searched the device Hegseth used for the Waltz chat.

Share this entry

Trump Has No Policy Process, Just Wormtongue and Palace Intrigue

April 20, 2025/75 Comments/in emptywheel /by emptywheel

The last paragraph of this NYT story describing absolutely insane plans for the State Department -“eliminating almost all of its Africa operations,” “cutting offices … that address climate change[,] refugee issues, … democracy[,] and human rights concerns,” mandating use of AI for “‘policy development and review’ and ‘operational planning’,” and replacing the Foreign Service exam with loyalty oaths — describes that the Executive Order laying out those plans is not the only proposed plan out there.

It links this story, published by NYT five days earlier, describing more modest plans: closing six embassies in Africa, not the entire continent.

The Trump administration is considering plans to close 10 embassies and 17 consulates and reduce or consolidate the staff of several other foreign missions, according to an internal State Department memo viewed by The New York Times.

The closures and other reductions outlined in the document, which is undated, would pare back the American presence on nearly every continent. They represent an expansion of plans the Trump administration was working on earlier this year for closing a dozen foreign missions and laying off local staff who work in those locations.

The cuts are in keeping with President Trump’s plans to reduce federal spending across the government, as well as a proposal that State Department leaders have been considering to cut nearly 50 percent of the department’s spending.

But the new proposed reductions have raised fresh concerns that the United States will be ceding vital diplomatic space to China, including in areas of the world where Washington has a greater presence than Beijing, compromising American national security, including intelligence gathering.

The competing plans — one a memo, the other an Executive Order that would be signed by Trump and would therefore oblige memo-writers to defer to Trump’s order — comes in the wake of the ouster of Pete Marocco, the Jan6er who effectuated the destruction of USAID, from the State Department.

There are several versions of Marocco’s ouster and his fate, but this Politico story describes that Marco Rubio fired him, in part because of differing opinions about how to destroy USAID (which has long since been accomplished, but during which, Rubio repeatedly made claims about GOP-supported programs like PEPFAR that turned out to be false).

Peter Marocco, the Trump administration official in charge of dismantling USAID, left a meeting at the White House last week to return to his office at the State Department. But when he arrived, Marocco could not enter the building: security told him he was no longer an employee there, according to a person familiar with the situation.

Word of Marocco’s firing quickly tore through the Republican Party and MAGA ecosystem, startling President Donald Trump’s loyalists who viewed the aide as part of an elite cohort of administration true believers. Loud voices on the right piled on Secretary of State Marco Rubio, accusing him of undermining their disruptive agenda.

Yet Marocco’s abrupt termination, which has not been fully reported until now, was not an impulsive dismissal or a case of Rubio going rogue. This report was based on conversations with five people, including administration officials and allies, all of whom were granted anonymity to discuss sensitive internal matters. Four of the people said Rubio fired Marocco. They gave varying explanations: one administration official said Rubio and others wanted Marocco out due to what they saw as his bulldozer operating style and failure to work effectively with colleagues; others pointed to substantive disagreements between Rubio and Marocco over how to dismantle USAID. Meanwhile, Marocco allies viewed Rubio and his team as insular, controlling and obstructionist to the DOGE agenda ordered by the president.

One White House official said Rubio went to a senior White House aide for clearance to remove Marocco after tensions reached a boiling point last week. They described Marocco’s firing as “the first MAGA world killing from inside the White House.”

It also describes the backlash targeting Rubio that has resulted.

In the days since his ouster, Marocco’s MAGA allies have come to his defense and raised new suspicions of Rubio, including questions about why he would want to protect USAID and whether he’s loyal to the president.

[snip]

“He’s really not a MAGA guy, he’s a neocon,” a Trump ally said of Rubio, adding that this move “is gonna bite him.”

This is the third instance of an ugly cabinet-level dispute in the Trump Administration in recent weeks.

NYT’s account of Gary Shapley’s installment to head the IRS, without Scott Bessent’s involvement, followed by his removal at the hands of Bessent, incorporates several pieces of intrigue. First, there’s Shapley’s installment by Musk and then Bessent’s reversal of Musk’s plot.

Mr. Bessent had complained to Mr. Trump this week that Mr. Musk had done an end run around him to get Mr. Shapley installed as the interim head of the I.R.S., even though the tax collection agency reports to Mr. Bessent, the people familiar with the situation said. They spoke on the condition of anonymity to discuss private conversations.

The clash was the latest instance of Mr. Musk’s influence in the Trump administration that has alarmed top officials. It was also the latest upheaval at the tax agency, with much of its staff pushed out or quitting. Mr. Trump earlier this week called for the I.R.S. to revoke Harvard University’s tax-exempt status after the school refused to impose sweeping changes demanded by the administration.

An I.R.S. spokeswoman declined to comment on the leadership changes.

Mr. Shapley, a longtime I.R.S. agent, gained fame among conservatives after he claimed that the Justice Department had slow-walked its investigation into Hunter Biden’s taxes.

Mr. Musk’s Department of Government Efficiency pushed Mr. Shapley’s appointment through White House channels, but Mr. Bessent was not consulted or asked for his blessing, according to those with knowledge of the dynamic. Mr. Bessent then got Mr. Trump’s approval to unwind the decision within days, they said. Mr. Shapley had been working from the I.R.S. commissioner’s office as late as Friday morning.

Then, there’s Musk’s magnification of Laura Loomer’s attack on Bessent in response.

The feud between Mr. Musk and Mr. Bessent went public late Thursday night, when Mr. Musk amplified a social media post from the far-right researcher Laura Loomer accusing Mr. Bessent of colluding with a “Trump hater.”

“Troubling,” Mr. Musk wrote about Mr. Bessent’s meeting John Hope Bryant, the chief executive of the nonprofit Operation HOPE. Mr. Bryant is working on a financial literacy effort with Treasury officials.

Ms. Loomer had called that meeting a “vetting failure.”

Finally, there’s an oblique comment about DOGE boy Gavin Kliger’s removal on the same day as Shapley, one that WaPo describes in more detail: Kliger was shut out of IRS systems just as he was about to start a purge of IRS employees in the middle of tax season.

Early Friday morning, the IRS rescinded building and systems access for DOGE official Gavin Kliger, according to the people familiar with the situation. The Post could not immediately confirm the reason for the revocation.

Kliger was managing the massive layoffs at the agency that could cut the tax agency’s headcount by 25 percent. More layoff notices had been planned for Friday afternoon, the people said, but those notifications have been paused.

As laid out in declarations from USAID workers, Kliger left his digital fingerprints all over Marocco’s dismantling of USAID.

Left unsaid is whether Musk installed Shapley so as to empower Kliger to destroy the IRS just as it sets to processing this year’s tax receipts.

Thus far, we have correlation, without any insight into causation.

The far right targeting of Bessent is of particular concern, given the evidence he’s holding together the US (and with it, the global) economy with his own shoestrings. WSJ reported this week that he and Howard Lutnick had to sneak into the Oval Office to override Peter Navarro’s disastrous tariff plans.

On April 9, financial markets were going haywire. Treasury Secretary Scott Bessent and Commerce Secretary Howard Lutnick wanted President Trump to put a pause on his aggressive global tariff plan. But there was a big obstacle: Peter Navarro, Trump’s tariff-loving trade adviser, who was constantly hovering around the Oval Office.

Navarro isn’t one to back down during policy debates and had stridently urged Trump to keep tariffs in place, even as corporate chieftains and other advisers urged him to relent. And Navarro had been regularly around the Oval Office since Trump’s “Liberation Day” event.

So that morning, when Navarro was scheduled to meet with economic adviser Kevin Hassett in a different part of the White House, Bessent and Lutnick made their move, according to multiple people familiar with the intervention.

They rushed to the Oval Office to see Trump and propose a pause on some of the tariffs—without Navarro there to argue or push back. They knew they had a tight window. The meeting with Bessent and Lutnick wasn’t on Trump’s schedule.

The two men convinced Trump of the strategy to pause some of the tariffs and to announce it immediately to calm the markets. They stayed until Trump tapped out a Truth Social post, which surprised Navarro, according to one of the people familiar with the episode. Bessent and press secretary Karoline Leavitt almost immediately went to the cameras outside the White House to make a public announcement.

And multiple outlets have described Bessent’s thus far successful efforts to prevent Trump from firing Jerome Powell.

Treasury Secretary Scott Bessent has repeatedly cautioned White House officials that any attempt to fire Federal Reserve Chair Jerome Powell would risk destabilizing financial markets, according to two people close to the White House granted anonymity to share details of private discussions.

Bessent’s private message reinforces what President Donald Trump already knows but comes as the president’s anger with the Fed chair is growing because Powell hasn’t shown signs that he will cut interest rates soon. It also comes against the backdrop of widespread market turmoil over the administration’s far-reaching trade war.

Trump’s fury with Powell burst into public view on Thursday morning, when he said in a post on Truth Social that his “termination cannot come fast enough!”

But Powell’s job looks safe for now.

Bessent is a mediocre Treasury Secretary, in no way the match for his counterparts. Yet he is increasingly all that’s standing between Trump and his most feverish nutjobs and far bigger financial catastrophe.

Given Loomer’s success firing NSA Director Timothy Haugh and six NSC staffers, it may be only a matter of time before the nutjobs get to Bessent, too.

The third cabinet level blowup is more opaque. As laid out here, three of Whiskey Pete Hegseth’s top aides were escorted out of the Pentagon in the wake of a leak investigation. Politico reported that they were fired — passive voice — on Friday, but the guy who led the investigation used to explain their ouster is also leaving his current role.

Joe Kasper, Defense Secretary Pete Hegseth’s chief of staff will leave his role in the coming days for a new position at the agency, according to a senior administration official, amid a week of turmoil for the Pentagon.

Senior adviser Dan Caldwell, Hegseth deputy chief of staff Darin Selnick and Colin Carroll, the chief of staff to Deputy Defense Secretary Stephen Feinberg, were placed on leave this week in an ongoing leak probe. All three were terminated on Friday, according to three people familiar with the matter, who, like others, were granted anonymity to discuss a sensitive issue.

[snip]

Two of the people said Carroll and Selnick plan to sue for wrongful termination. The Pentagon did not respond to a request of comment.

Kasper had requested an investigation into Pentagon leaks in March, which included military operational plans for the Panama Canal, a second carrier headed to the Red Sea, Musk’s visit and a pause in the collection of intelligence for Ukraine.

But some at the Pentagon also started to notice a rivalry between Kasper and the fired advisers.

“Joe didn’t like those guys,” said one defense official. “They all have different styles. They just didn’t get along. It was a personality clash.”

The changes will leave Hegseth without a chief of staff, deputy chief of staff, or senior adviser in his front office.

“There is a complete meltdown in the building, and this is really reflecting on the secretary’s leadership,” said a senior defense official. “Pete Hegseth has surrounded himself with some people who don’t have his interests at heart.” [my emphasis]

Some of those targeted — who have long-standing ties to Hegseth, going back to his failed non-profit management — are denying any role in leaks.

Whatever the genesis of this upheaval or the partisan explanation for it, it leaves a wildly unqualified man at the top of the world’s largest military with no top aides.

There are other signs of the collapse of all management inside the White House — such as the White House attempt to explain away their attack on Harvard with a bullshit claim that they accidentally sent out a letter demanding to effectively take over Harvard University.

Everywhere you look you have to wonder whether Susie Wiles is as much in charge as Amy Gleason is at DOGE, whether her title of Chief of Staff is just a convenient fiction to cover up for the reality that Trump does whatever the last person in the room tells him to do.

And often as not, the last person in the room is Stephen Miller.

We’ve already seen that the three cabinet secretaries struggling to assert control over their own agencies deferred to Stephen Miller when he told the participants of the famous Signal chat what Trump thought.

That is, it’s not just that Stephen Miller is often the last one in the room with Trump. It’s not just that Stephen Miller’s policy ideas are batshit insane (and that he’s the author of Trump’s most egregious abuses of power). It’s also that Miller often stands in as the Word of DOGE, the Word of Trump.

Kremlinologists are pointing to evidence — his demotion at Trump’s most recent cabinet meeting, for example — that Elon’s power at the White House has started to wane (while ignoring that Elon has moved onto the next phase of takeover, cashing in, cashing in, and cashing in).

But behind all the intrigue, Stephen Miller’s ascendance remains, apparently uncontested and possibly unbound.

Share this entry

Harvie Wilkinson Tries To Salvage Trump v. US

April 19, 2025/55 Comments/in emptywheel, SCOTUS /by Ed Walker

Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.

In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.

When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.

Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:

“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.

The reference to Federalist No. 70 is a polite call-back to Trump v. US:

The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.

Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:

Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.

Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.

Share this entry

Fridays with Nicole Sandler

April 18, 2025/35 Comments/in emptywheel /by emptywheel

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

Share this entry

Treating Opposition to Trump as a Partisan Issue Guarantees Defeat

April 18, 2025/39 Comments/in emptywheel /by emptywheel

In the last several days there have been two DC articles that made a lot of lefties pissed off.

An Axios post on Wednesday (revisited yesterday) described five Democrats planning trips to El Salvador (after seven right wingers visited earlier in the week, only a few of whom announced their trip publicly). In the fifth set of Axios bullets, several dickish anonymous comments from the same centrist House member appeared.

Reality check: The sentiment within the party about rallying behind deportees is not universal.

The second House Democrat who spoke anonymously, a centrist, called the deportation issue a “soup du jour,” arguing Trump is “setting a trap for the Democrats, and like usual we’re falling for it.”

“Rather than talking about the tariff policy and the economy … the thing where his numbers are tanking, we’re going to go take the bait for one hairdresser,” they said, likely referring to Andry Hernandez Romero.

Only if Trump tries to deport U.S. citizens, the lawmaker argued, will Democrats need to draw a “line in the sand” and “shut down the House.”

And then today, rather than a piece describing Chris Van Hollen’s successful effort to meet Kimlar Abrego Garcia, NBC instead published a piece that claimed that his effort to help a constituent was creating a rift in the Democratic Party.

After spending a few paragraphs obscuring the uncontested truth that Trump’s Administration admitted Abrego Garcia had been sent in error, NBC pitched this as a dispute among Democrats, this time invoking Gavin Newsom’s snotty comment.

Other Democrats have avoided weighing in on the issue — or offered muted responses when asked about it.

As California Gov. Gavin Newsom, a Democrat, rolled out a lawsuit Wednesday challenging Trump’s sweeping tariffs, he had little to say about the Abrego Garcia case when asked to weigh in.

“This is the distraction of the day. The art of distraction,” said Newsom, a potential 2028 presidential contender. “And here, we zig and zag. This is the debate they want. This is their 80-20 issue, as they’ve described it.”

While noting that the government needs to abide by court orders and the rule of law, Newsom added, “It’s exactly the debate they want, because they don’t want this debate on the tariffs; they don’t want to be accountable to markets today.”

The piece cherry picked some polling claiming to back up Newsom while ignoring other polling that doesn’t, then quoted two anonymous “operatives” and an apparently deleted Xitter post calling Abrego Garcia a bad poster child for … the rule of law?

Both of these articles are a genre: the wildly popular “Democrats in disarray” genre. They’re designed to make Democrats look feckless. Axios as an outlet generally is designed to treat everything as a both-sides political fight and for whatever reason NBC chose to report the Van Hollen’s successful mission to meet Abrego Garcia as not news in and of itself, but instead only news in the reflection it showed in the Democratic party.

And in spite of the fact that everyone knows this is a manufactured genre, these articles never fail to stoke precisely the disarray they craft out of mostly anonymous quotes, with the result that Democrats spend their time yelling at other Democrats rather than yelling at Trump or — just as importantly — focusing our energy on the good things that people like Chris Van Hollen are doing. The result is not just NBC but Democrats treat the alleged rift as the news, rather than Van Hollen’s effort itself.

That’s bad enough. Every “we don’t have to choose between immigration or the economy” post, while true, is a post distracting from Trump’s abuses and Van Hollen’s laudable effort.

The worst part of these bait articles, in my opinion, is they reinforce a mentality that says resistance to Trump is partisan, one that those who take the bait often replicate by criticizing the Democrats as a party.

Nobody in the party is interfering with Van Hollen’s efforts to help a constituent. Nobody in the party is disrupting Elizabeth Warren from making the case on tariffs.

More importantly, nothing Democrats can do will silence Judge Wilkerson from ruling, with clarion voice,

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Nothing Newsom does with his lawsuit challenging Trump’s tariffs will change the fact that some small businesses represented by conservative Liberty Justice Center and Ilya Somin got there first, and another small business represented by the Koch and Leonard Leo-funded New Civil Liberties Alliance beat him too.

The opposition to Donald Trump on these two issues is not a partisan. Getting baited by Dems in Disarray punditry distracts from the import of keeping them that way. Getting baited by a fight over the direction of the Democratic party — letting a wannabe Presidential candidate distract from Chris Van Hollen’s efforts — is a quick way to ensure that no Democrat can run in a fair race in 2028, because things will be too far gone by then.

And if the work of ordinary people ensures that Gavin Newsom can run in 2028, then we can hold him accountable for neglecting his own constituents being rounded up with no due process.

David Brooks — David Brooks!!! — had this to say in an op-ed that could have been written by a Democrat but may read differently by someone who is not one.

What is happening now is not normal politics. We’re seeing an assault on the fundamental institutions of our civic life, things we should all swear loyalty to — Democrat, independent or Republican.

It’s time for a comprehensive national civic uprising. It’s time for Americans in universities, law, business, nonprofits and the scientific community, and civil servants and beyond to form one coordinated mass movement. Trump is about power. The only way he’s going to be stopped is if he’s confronted by some movement that possesses rival power.

The way to achieve a national civic uprising — the way to achieve an uprising that does more than heighten polarization — is to refuse to get baited by reporting that portrays the momentous events we’re living as nothing more than the disputed actions of a political party. That way lies failure.

Shitty DC reporting will continue to treat the challenge before us as just another partisan horse race. So will shitty “operatives” quoting anonymously.

But letting that kind of punditry frame how we understand these developments deprives important action of the nonpartisan appeal of ethical and moral clarity.

Share this entry

Trump’s Individual Claims about Immigrant Targets Are False–But So Is the Larger Premise

April 18, 2025/59 Comments/in emptywheel /by emptywheel

There are a slew of legal challenges to Trump’s war on immigrants: there are people illegally sent to Nayib Bukele’s concentration camp, most notably Kilmar Abrego Garcia (whom Chris Van Hollen managed to meet yesterday); people sent to CECOT with no due process (including people with pending asylum claims and others picked up by mistake); grad students targeted for free speech; grad students targeted for low-level run-ins with the law; a US-born citizen, Juan Carlos Lopez-Gomez, detained for unlawful entry but since released; and at least three US citizens informed they must self-deport within seven days because their parole had been withdrawn.

Henrry Josue Villatoro Santos is a fairly unique case. He was arrested to great fanfare in March, with Pam Bondi boasting over and over she had caught one of the top leaders of MS-13.

He was arrested not — as Bondi suggested — based off probable cause he was the top leader of MS-13. Rather, he was arrested based on an outstanding administrative immigration warrant and weapons purportedly found in a plain view search of his house, for which he was charged with possession of a firearm by an alien.

9. After knocking and announcing their presence to no avail, members of the FBI’s Special Weapons and Tactics (“SWAT”) Team breached the front and rear doors of the residence. After breaching the front door, SWAT agents observed VILLATORO in an alcove leading to the residence’s garage. VILLATORO ducked behind a small wall out of view and did not comply with the agents’ demands that he exit the residence. After agents deployed a stun grenade, VILLATORO eventually came close enough to the front door to be pulled out of the residence.

10. VILLATORO was taken into custody on an outstanding administrative immigration warrant. When VILLATORO was being prepared for transport from the residence, he confirmed that the bedroom in the garage was his room and that a jacket inside that room was his.

11. FBI agents and TFOs proceeded to search the residence. Inside the aforementioned garage bedroom, a Taurus, model G2C, 9-millimeter handgun bearing serial no. ACH119455 was observed in plain view on a shelf near the bed. Based on my training and experience, I am aware that Taurus firearms are not manufactured in the Commonwealth of Virginia. Furthermore, the words “TAURUS ARMAS MADE IN BRAZIL” are stamped into the handgun’s slide next to the serial number.

12. In that same garage bedroom, agents located three additional firearms, ammunition, and two suppressors.

Less than two weeks later, DOJ moved to dismiss the case against Villatoro. They moved to get rid of the case, their claims, and Villatoro himself the easy way, by quick and due process-free deportation.

On Tuesday, magistrate judge William Fitzpatrick granted DOJ’s request (without requiring DOJ to offer the reason to dismiss), but granted a continuance to provide Villatoro a way to challenge deportation to CECOT.

Yesterday, Fitzpatrick granted Villatoro’s request for a stay so he can appeal the dismissal and try to stave off deportation to CECOT.

Villatoro’s request for an emergency stay cited the effect that the evidence-free claims that Pam Bondi, among others, has made — just like she has been with Abrego Garcia.

Through its very public pronouncements and attacks on Mr. Villatoro Santos, including bellicose statements by the Attorney General, the FBI Director, the Virginia Governor, and President Trump himself, the Government has effectively placed a target on Mr. Villatoro’s back: if he were to be deported to El Salvador, there is no doubt he will immediately be detained at CECOT without trial, and there will be no way out from there. And to be clear, this life-altering fate would result from the unproven allegations of a government that chose to forego criminal prosecution, where there is due process and a burden of proof to meet, in favor of deportation to a country in which there is little to no respect for the rule of law. Mr. Villatoro Santos faces the risk of an effective life sentence without trial, or worse.

If Abrego Garcia is ever brought back to the country, Pam Bondi’s inflammatory allegations against him may limit the government’s ability to dictate his fate; she obviously has prejudiced his ability to get a fair hearing. But Villatoro (who has not contested he had the guns) is in the country and so may be able to make something of the way Bondi claimed him to be something he’s probably not.

It’s not just that Trump’s Administration is deporting people without due process. He’s deporting people without due process because he needs to sustain false claims about them, to sustain a myth about invasion that Stephen Miller used to get Trump elected.

Meanwhile, Trump’s false claims are collapsing at a more significant level.

On one level, there’s Bukele’s claims to oppose MS-13. As I noted here, there has been isolated reporting on Bukele’s interest in preventing the real story of his relationship with MS-13 from being made public.

Asha Rangappa updates that with a description of how both Bukele and Trump have the need to claim their relationship with MS-13 is something it is not.

El Salvador has suffered from gang violence, led by Mara Salvatrucha, or MS-13, following decades of civil war from 1979 to 1992. According to an indictment brought by the Eastern District of New York against thirteen MS-13 gang members in 2022, various El Salvadoran administrations since the war ended entered into a “truce” with MS-13, in which the gang agreed to reduce homicides in the city “in exchange for transfers to less secure prisons, improved prison conditions, conjugal visits, cash payments, and other benefits and privileges.” The “truce” came to a halt, however, in 2015 after the U.S. government, which wanted to curb MS-13’s activity in the United States and bring them to justice here, increased pressure on El Salvador to return to restrictive prison conditions for gang members and extradite some of them to the U.S. In retaliation for the “truce” being lifted, MS-13 increased its violence both in El Salvador and in the U.S. In fact, the first Trump Justice Department created a task force, called Task Force Vulcan, to crack down on MS-13 in the U.S. – which is what led to the federal indictment noted earlier.

Enter Bukele. Bukele was elected in 2019, winning on a platform that promised to (once again) “crack down” on gang violence. But his party, Nuevas Ideas, began secretly working to gain the support of a critical group: Yep, MS-13. Bukele and his party negotiated with the gang to bring back the “truce,” which would include (according to the federal indictment) “financial benefits, control of territory, the ability to run the gang from prison, and the early release of gang members.” MS-13 also wanted assurance that they wouldn’t be extradited to the U.S., where they would face more punitive measures. (Having studied the drug cartels in Colombia, this was reminiscent of Pablo Escobar’s mantra, “Mejor una tumba en Colombia, que una carcel in los Estados Unidos” – which means, “Better a grave in Colombia than a jail cell in the United States.”) The same day Bukele’s party received a legislative majority in 2021, it removed the Attorney General and five members of the Supreme Court who had been working with the U.S. to take real action against MS-13. Buekele also released a major MS-13 leader whom the U.S. was seeking for extradition from prison.

In exchange, MS-13 “agreed to reduce the number of public murders in El Salvador, which politically benefitted the government, by creating the perception that the government was reducing the murder rate.” Indeed, Bukele’s popularity is the result of his so-called “Territorial Control Plan,” which involved building his supermax prison and his plan of mass incarceration – a plan which he credits for the drop in violence since he took office. Of course, the citizens of El Salvador aren’t privy to the secret negotiations Bukele made with MS-13 – details that were going to be made public when the U.S. government’s case against the MS-13 defendants went to trial. Which may explain why the Trump administration quietly dropped these charges last week and put the charged MS-13 members on the third plane bound for El Slavador (and which included Abrego Garcia). Among the defendants was one of the highest-ranking leaders of MS-13, Cesar Humberto Lopez-Larios, who was arrested last June and added to the earlier indictment (and who almost certainly will not face real punishment in El Salvador). A former FBI agent who spent years working on this and other gang cases called it “a historical loss,” especially in terms of getting critical intelligence about MS-13’s operations and members in the United States.

In short, both Trump and Bukele appear to be complicit in a plan to allow MS-13 to operate in El Salvador on its own terms, in exchange for making it look like both are “cracking down” on the gang in their respective countries. Of course, the fact that MS-13 will continue to operate in cahoots with the El Salvadoran government means that citizens of that country who are victims of the gang will continue fleeing to the United States, undercutting the Trump administration’s claim that it is trying to end the “invasion” of asylum seekers. Then again, Trump needs a steady influx of people to continue trying to cross the border in order to keep claiming the “national emergency” he is using to expand his authority.

There’s a flip side to Trump’s propaganda, involving Trump’s false claims about Tren de Aragua.

Even at the Global Threats Hearings on March 26, otherwise focused on Mike Waltz’ Signal chat, Democrats asked Tulsi Gabbard why Tren de Aragua, which Trump had just declared was invading the country in a matter akin to war, was not even mentioned among the IC’s description — prioritized as the primary threat for the first time — of transnational actors threatening the country.

Western Hemisphere-based TCOs and terrorists involved in illicit drug production and trafficking bound for the United States endanger the health and safety of millions of Americans and contribute to regional instability. Fentanyl and other synthetic opioids remain the most lethal drugs trafficked into the United States, causing more than 52,000 U.S. deaths in a 12-month period ending in October 2024. This represents a nearly 33 percent decrease in synthetic opioid-related overdose deaths compared to the same reporting time frame the previous year, according to CDC provisional data, and may be because of the availability and accessibility of naloxone.

Mexico-based TCOs—including the Sinaloa Cartel and the New Generation Jalisco Cartel—remain the dominant producers and suppliers of illicit drugs, including fentanyl, heroin, methamphetamine, and South American-sourced cocaine, for the U.S. market. Last year, official points of entry along the U.S.-Mexico border were the main entry point for illicit drugs, often concealed in passenger vehicles and tractor trailers. However, some TCOs likely will at least temporarily change their smuggling techniques and routes in response to increased U.S. security force presence at the border.

Since at least 2020, the growth of Mexico-based independent fentanyl producers—actors who are autonomous or semiautonomous from Mexican cartel control—has increasingly fragmented Mexico’s fentanyl trade. Independent fentanyl producers are attracted to the drug’s profitability and the low barriers to market entry, including the ease of synthesizing it using basic lab equipment and few personnel.

Colombia-based TCOs and illegal armed groups are responsible for producing and exporting the vast majority of cocaine that reaches the United States, some of which is transshipped through Ecuador, contributing to an uptick in violent criminal conflicts that spurs regional migration.

Mexico-based TCOs are ramping up lethal attacks in Mexico against rivals and Mexican security forces using IEDs, including landmines, mortars, and grenades. In 2024, there were nearly 1,600 attacks on Mexican security forces using IEDs, surging from only three reported attacks between 2020- 2021. The sophistication of TCO tactics is reshaping Mexico’s security landscape and has heightened the risk to security forces.

Tren de Aragua is not mentioned in the report; Venezuela is mentioned once (because, with Mexicans and Guatemalans, they are the migrants most commonly trying to enter the country through the Mexican border). El Salvador and MS-13 are likewise not mentioned.

But since then, the IC has done a National Intelligence Estimate that formalizes what became clear in the Threats Hearings. Of the 18 intelligence agencies who contributed to the assessment, only the FBI even claimed that the Venezuelan government was involved with TdA.

The National Intelligence Council, drawing on the acumen of the United States’ 18 intelligence agencies, determined in a secret assessment early this month that the Venezuelan government is not directing an invasion of the United States by the prison gang Tren de Aragua, a judgment that contradicts President Donald Trump’s public statements, according to people familiar with the matter.

[snip]

The intelligence product found that although there are some low-level contacts between the Maduro government and Tren de Aragua, or TdA, the gang does not operate at the direction of Venezuela’s leader. The product builds on U.S. intelligence findings in February, first reported by the New York Times, that the gang is not controlled by Venezuela.

An unnamed person in Tulsi’s office accused the entire IC of a Deep State plot, pitting the DNI aggressively against her subordinates.

When asked about the findings, the Office of the Director of National Intelligence dismissed it as the work of “deep state actors” working in conjunction with the media.

“President Trump took necessary and historic action to safeguard our nation when he deported these violent Tren de Aragua terrorists,” the statement said. “Now that America is safer without these terrorists in our cities, deep state actors have resorted to using their propaganda arm to attack the President’s successful policies.”

All of it — all of Trump’s March campaign to invoke the Alien Enemies Act to start deporting people without due process — all of it is based on wildly unfounded propaganda, propaganda about who Bukele is, propaganda about what TdA is, propaganda about who these makeup artists and soccer players are.

There is a great deal of angst among centrist Democratic consultants and pundits that Trump will always have the upper hand on immigration. And while it’s true that that’s what has prevented Trump’s polling from cratering, it is already the case that Americans don’t like specific aspects of Trump’s immigration policy.

The vast majority — 82% — of Americans believe Trump should obey court orders even if he disagrees with them, and 56% think he should stop “deporting people” (again, very vague) specifically:

But the details of the policy Trump is carrying out are even more removed from the polling — even more unpopular, reflecting deep reservations among the public about what the president is doing.

For example, when various pollsters asked if they would support deporting immigrants who have been here more than 10 years (as in the case of Abrego Garcia), U.S. adults said “no” by a 37 percentage point margin; Americans disapprove of deporting immigrants who have broken no laws other than laws governing entry; they oppose deporting U.S. citizens convicted of crimes to foreign jails, such as CECOT, and they oppose housing migrants at Guantanamo Bay while they are processed. All of these are policies the Trump administration has now floated or is actively carrying out.

But here’s what else the polling never accounted for: even in real time, it was clear Trump’s strength on immigration was based on a massive campaign of propaganda (just as Trump had tried with less success in 2018 and 2020).

More than $247 million was spent in the first six months of this year on television, streaming platform and digital ads that mention immigration, according to AdImpact, which tracks campaign advertising. That is $40 million more than ads that mention any other issue.

Over 90 percent of the ads supported Republican candidates and were paid for by their campaigns or political action committees backing them.

The level of spending underscores how important Republicans view border security and immigration in this year’s elections. While polls show voters overall rank issues at the border as less important to them than the economy, inflation and protecting democracy, Republican voters consistently rank it as among the most important.

The Washington Post analyzed the transcripts, images and on-screen text featured in more than 700 campaign ads that mention immigration and that ran from January through June for the presidential and Senate races, as well as congressional primaries and major state campaigns.

Taken as a whole, the ads convey an unrealistic portrait of the border as being overrun and inaccurately characterize immigrants generally as a threat, of which there is little evidence. FBI data show U.S. border cities are among the nation’s safest. And a 2023 report from a group of economists found immigrants are at least 30 percent less likely to be incarcerated than U.S.-born individuals.

Click through to that story, because it was extremely comprehensive, but also just a single story amid a campaign focused on other things.

Donald Trump won election by staging spectacular propaganda in places like Aurora, Colorado, where Stephen Miller tried to drown out the Republican Mayor’s debunking of his false claims. Donald Trump won election by falsely accusing a productive group of Haitian immigrants were eating house pets. Trump won election by claiming that a bunch of criminal aliens safely held in US prisons were, instead wandering the streets.

Donald Trump won, in significant part by stoking fear of immigrants, based off a flood of propaganda that Democrats only responded to with whack-a-mole efforts to combat individual lies.

Thus far, Democrats are still largely fighting a game of whack-a-mole, though one facilitated by human interest and the Fifth Amendment.

Thus far, the campaign to fight back against Trump’s authoritarian immigration crackdown has focused on individual stories: Abrego Garcia’s efforts to raise his three American citizen children, Rumeysa Öztürk’s research on how to make social media useful, Mohsen Mahdawi’s empathy for both Palestinians and Jews. These are individuals, and once they are viewed as individuals, most Americans don’t support their draconian treatment.

But it has yet to account for the fact that it is based on far bigger lies, bigger lies that Stephen Miller manufactured to justify claiming expansive powers in the name of fear.

Share this entry

Harvie Wilkinson on Due Process

April 17, 2025/48 Comments/in emptywheel /by emptywheel

After Judge Paula Xinis granted discovery to Kilmar Abrego Garcia’s attorneys, Trump ran to the Fourth Circuit.

Waiting less than a day, the conservative on the panel for the case, Harvie Wilkinson, wrote a scathing opinion rejecting Trump’s plea for help.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Read the rest.

Share this entry

Whiskey Pete Hegseth Finally Finds Some White Men to Purge

April 17, 2025/40 Comments/in emptywheel /by emptywheel

Amid all the other news, the purge of suspected leakers Pete Hegseth announced last month has netted three targets — all white men, for a change! Politico has not only provided a roster, but described the scope of the leak investigation.

The Pentagon put a third top official on administrative leave Wednesday as part of a wide-ranging leak investigation, according to a defense official and a person familiar with the matter.

Colin Carroll, chief of staff to Deputy Defense Secretary Stephen Feinberg, was suspended a day after two other political appointees were placed on leave following a probe into potential leaks of sensitive information.

The leaks under investigation include [1] military operational plans for the Panama Canal, [2] a second carrier headed to the Red Sea, [3] Elon Musk’s controversial visit to the Pentagon to discuss China and a [4] pause in the collection of intelligence for Ukraine, according to the official.

[snip]

Dan Caldwell, a senior adviser to Defense Secretary Pete Hegseth, and Darin Selnick, the Defense Department’s deputy chief of staff, were escorted out of the Pentagon by security officers and had their building access suspended pending further investigation, the official said. Caldwell and Selnick both previously worked at Concerned Veterans for America, the nonprofit that Hegseth once led. [my annotation]

An Air Force Special Forces Command Chief Master Sergeant was also removed on Monday, though no one has said the investigation described to be targeting him is Pete Hegseth’s purge.

When this investigation was first reported by CNN, it focused on the disclosure to NYT, for a story published on March 20 [1], that Hegseth was about to give Elon Musk a briefing on US war plans against China.

The memo comes after President Donald Trump pushed back on a New York Times report that DOGE head Elon Musk would be briefed on US military plans for a potential war with China while at the Pentagon on Friday. Trump said he wouldn’t show such plans “to anybody.”

And surely that’s a big focus of this investigation. As news of these ousters broke, Marc Caputo released a story ret-conning Trump’s unhappiness with the briefing, claiming, against all sense, that Trump got mad at Elon but not, also, Hegseth about it.

Defense Secretary Pete Hegseth suspended two top Pentagon officials, Dan Caldwell and Darin Selnick, as part of an investigation into who leaked word of a planned top-secret briefing on China for Elon Musk.

Axios learned that Musk or Hegseth didn’t just decide to call off that briefing after the leak. President Trump himself ordered staffers to kill it.

“What the f**k is Elon doing there? Make sure he doesn’t go,” Trump said, a top official recalled to Axios.

Why it matters: Musk has annoyed several administration officials with his constant presence at the White House, his haphazard social media posts and his slash-and-burn tactics at his Department of Government Efficiency.

The planned Pentagon briefing, however, got him cross with the boss at the Resolute Desk.

Anyway, no one made sure Elon “doesn’t go;” the currently operative story is Elon went to the Pentagon, but didn’t get the briefing. If Trump were unhappy with the planned briefing, rather than its exposure, I doubt we’d have this kind of leak investigation, which purportedly prevented the briefing from happening.

But Politico mentions three more leaks targeted by the investigation:

A widely disseminated story [1] disclosing that DOD had developed military plans targeting the Panama Canal; NBC’s story was published March 13.
The deployment [2] of the USS Carl Vinson from Asia to the Red Sea; the Politico version, which noted USNI reported the news first, was like USNI’s report dated March 21. Both versions report the move first as a month-long extension of the deployment of the USS Harry S. Truman, which was damaged and then repaired in February after being struck by a merchant ship, with the Vinson sailing from East China to the Red Sea to overlap with it. On March 16, the Houthis attempted to attack the Truman in retaliation for the strikes on March 15 ordered up by Pete Hegseth’s signal chat, and potential Houthi disinformation has very recently claimed the Truman has been struck.
Stories [4] about a pause in intelligence sharing with Ukraine that were quickly and publicly confirmed by John Ratcliffe; here’s Politico’s March 5 version, bylined by one of the guys closely tracking the purge.

So in order, the leaks are:

March 5 story on Ukraine intelligence sharing
March 13 story on targeting Panama
March 20 story on the Elon briefing
March 21 story on the Vinson redeployment from the East China Sea to the Middle East

With that list in mind, let’s look at several aspects of the memo, dated the same day as the Vinson deployment, March 21, asking for the investigation.

It does, in fact, identify, “unauthorized disclosures of national security information involving sensitive communications with principals within the Office of the Secretary of Defense,” plural. So while the coverage focused on the Elon briefing, it reportedly entailed the others from the start, including the seemingly routine report on the Vinson deployment.

It not only mentioned “sensitive communications with principals within the Office of the Secretary of Defense,” but it asked for cooperation from “those responsible for maintaining and overseeing information security systems and in coordination with federal partners as required.” At first, in the days before Jeff Goldberg revealed Pete Hegseth conducts these discussions (including discussions about the Middle East operations like the Vinson deployment) via Signal chat, it seemed this might have been an investigation into DOD’s secure communications.

But given the inclusion of Dan Caldwell — the guy whom Hegseth instructed Mike Waltz to add as his representative to the famous Signal chat — as the first guy purged suggests this leak investigation could also be about the Signal chat.

Or other Signal chats. Mike Waltz apparently did this all the time.

American Oversight’s lawsuit seeking to preserve the signal chats Goldberg published already disclosed that the actual content of the chats did not get preserved on John Ratcliffe’s personal phone, and that between March 26 and March 28 — after Congress was already investigating — participants changed message settings.

In a filing asking James Boasberg to find that Ratcliffe defied his order submitted yesterday, American Oversight included this timeline of what we know from filings in that suit:

March 24: Excerpts of the Signal chat appear in The Atlantic.1

March 25: American Oversight files this action. On the same day, Defendant Ratcliffe testifies before the Senate Select Committee on Intelligence regarding his use of Signal.2

March 26: American Oversight files a motion for temporary restraining order. ECF No. 6. The same day, changes occur in the Signal chat “participants’ administrative settings . . . such as profile names and message settings.” Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3. Also on the same day, The Atlantic publishes further excerpts from the Signal chat.3

March 27: This Court orders Defendants to “promptly make best efforts to preserve all Signal communications from March 11–15, 2025.” Min. Order, Mar. 27, 2025. The same day, the CIA’s Office of General Counsel reportedly issued a litigation hold notice. Blankenship Decl. ¶ 4, ECF No. 10-3.

March 28: Changes occur again in the Signal chat participants’ profile names and message settings. Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3.

March 31: Defendant Ratcliffe’s Signal account is “reviewed” for the first time and found to contain no substantive messages from the Signal chat. Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3.

1 See Jeffrey Goldberg, The Trump Administration Accidentally Texted Me Its War Plans, The Atlantic (Mar. 24, 2025), https://www.theatlantic.com/politics/archive/2025/03/trumpadministration-accidentally-texted-me-its-war-plans/682151/.

2 Sen. Select Comm. on Intel. Hr’g to Examine Worldwide Threats Tr., Mar. 25, 2025, available at https://www.dia.mil/Portals/110/Images/News/DIA%20in%20the%20News/Committee_Hearing _2025.pdf.

3 See Jeffrey Goldberg & Shane Harris, Here Are the Attack Plans that Trump’s Advisers Shared on Signal, The Atlantic (March 26, 2025), https://www.theatlantic.com/politics/archive/2025/03/signal-group-chat-attack-plans-hegsethgoldberg/682176.

All of that took place after Hegseth himself ordered an investigation into leaks including the extension of the Harry S. Truman deployment to fight the Houthis on March 21, the kind of thing that might have been on that Signal chat.

While American Oversight didn’t ask for any other declarations, it did note that the existing declarations [docket] raise real questions about who else, including Whiskey Pete, might have deleted these texts from their devices.

For example, rather than specifying which messages were preserved, the Supplemental DoD Declaration vaguely references the preservation of “existing Signal application messages,” which, as shown by the Supplemental Blankenship Declaration, could be none. Suppl. Bennett Decl. ¶ 2, ECF No. 15-1. Similarly, without specifying whether any substantive messages were preserved, the Supplemental State Declaration merely states that “images of the Signal chat”—including “any” images captured from the Secretary’s devices—have been preserved. See Decl. of Timothy J. Kootz ¶ 4, ECF No. 15-4. As with CIA, those “images of the Signal chat” may simply be the title of the group chat. The Supplemental State Declaration also suggests that Secretary Rubio accessed the Signal chat from multiple devices. Id. More broadly, the evidentiary issues identified in the Supplemental Blankenship Declaration raise substantial questions regarding what these other Defendants actually preserved.

In forthcoming filings, American Oversight will probe the clear deficiencies in Defendants’ recordkeeping practices evidenced by these standout omissions of whether and what substantive messages from the Signal chat still exist, as well as when and how any such messages were lost. [my emphasis]

All of which brings me to the last detail of the original leak announcement that has always struck me: it was set up not as conventional leak investigations are, as a referral to the FBI based on stories that include classified information. That’s how you find out who leaked what if you want all possible culprits involved. Rather, it was set up such that Hegseth himself would get reports on the findings, and from that point, the criminal referrals would go out.

This investigation will commence immediately and culminate in a report to the Secretary of Defense. The report will include a complete record of unauthorized disclosures within the Department of Defense and recommendations to improve such efforts. I expect to be informed immediately if this effort results in information identifying a party responsible for an unauthorized disclosure, and that such information will be referred to the appropriate criminal law enforcement entity for criminal prosecution. [my emphasis]

That is, this so-called leak investigation implicating the guy Hegseth would add to his inappropriate Signal chats was set up such that Hegseth himself gets to gatekeep who gets targeted by it.

He appears to have set it up that way, importantly, before he realized a journalist had witnessed him add Dan Caldwell to a Signal chat on which he himself would disseminate battle information to the personal cell phones of multiple list participants, including journalist Jeff Goldberg.

Update: Adding this for timeline considerations. Roger Wicker and Jack Reed asked DOD IG to investigate this on March 27, while participants in the Signal chat were altering names and retention.

[W]e ask that you conduct an inquiry into, and provide us with an assessment of, the following:

1. The facts and circumstances surrounding the above referenced Signal chat incident, including an accounting of what was communicated and any remedial actions taken as a result;

2. Department of Defense (DOD) policies and adherence to policies relating to government officers and employees sharing sensitive and classified information on non-government networks and electronic applications;

3. An assessment of DOD classification and declassification policies and processes and whether these policies and processes were adhered to;

4. How the policies of the White House, Department of Defense, the intelligence community, and other Departments and agencies represented on the National Security Council on this subject differ, if at all;

5. An assessment of whether any individuals transferred classified information, including operational details, from classified systems to unclassified systems, and if so, how;

6. Any recommendations to address potential issues identified.

Share this entry

Scott Bessent’s Imaginary Friends

April 16, 2025/47 Comments/in emptywheel /by emptywheel

A week ago, Scott Bessent attempted to calm a bunch of bankers by describing that he would take a lead role in negotiations with 70 countries in the wake of Trump’s tariff flip-flops.

He claimed the US still has things called “allies” who would be willing to reach quick deals that would allow him to isolate China.

Bessent said there was great interest in negotiating with the U.S. to lower tariffs, noting that Trump had already spoken with the leaders of Japan and South Korea, and U.S. officials would meet with a delegation from Vietnam on Wednesday.

“I think … at the end of the day that we can probably reach a deal with our allies, with the other countries that have been … good military allies and not perfect economic allies. And then we can approach China as a group,” Bessent said.

He added that the sweeping reciprocal tariffs announced by Trump last week represented a ceiling for tariffs if countries didn’t retaliate, but China had not heeded that advice.

“In terms of escalation, unfortunately, the biggest offender in the global trading system is China, and they’re the only country who’s escalated,” Bessent said.

Bessent is still trying to pitch that PR line — that he has a plan — as in this WSJ article (which among other things, suggests Bessent only came up with this thing he fancies is a “strategy” on April 6, after Trump had already started destroying American credibility).

The Trump administration plans to use ongoing tariff negotiations to pressure U.S. trading partners to limit their dealings with China, according to people with knowledge of the conversations.

The idea is to extract commitments from U.S. trading partners to isolate China’s economy in exchange for reductions in trade and tariff barriers imposed by the White House. U.S. officials plan to use negotiations with more than 70 nations to ask them to disallow China to ship goods through their countries, prevent Chinese firms from locating in their territories to avoid U.S. tariffs, and not absorb China’s cheap industrial goods into their economies.

Those measures are meant to put a dent in China’s already rickety economy and force Beijing to the negotiating table with less leverage ahead of potential talks between Trump and Chinese President Xi Jinping. The exact demands could vary widely by nation, given their degree of involvement with the Chinese economy.

[snip]

One brain behind the strategy is Treasury Secretary Scott Bessent, who has taken a leading role in the trade negotiations since Trump announced a 90-day pause on reciprocal tariffs for most nations—but not China—on April 9.

Bessent pitched the idea to Trump during an April 6 meeting at Mar-a-Lago, the president’s club in Florida, said people familiar with the discussion, saying that extracting concessions from U.S. trading partners could prevent Beijing and its companies from avoiding U.S. tariffs, export controls and other economic measures, the people said.

The tactic is part of a strategy being pushed by Bessent to isolate the Chinese economy that has gained traction among Trump officials recently. Debates over the scope and severity of U.S. tariffs are ongoing, but officials largely appear to agree with Bessent’s China plan.

It involves cutting China off from the U.S. economy with tariffs and potentially even cutting Chinese stocks out of U.S. exchanges. Bessent didn’t rule out the administration trying to delist Chinese stocks in a recent interview with Fox Business.

Still, the ultimate goal of the administration’s China policy isn’t yet clear.

Bessent has also said there is still room for talks on a potential trade deal between the U.S. and China. Such talks would have to involve Trump and Xi.

In the time that Bessent has been pursuing this “strategy” to make deals with our “allies” that will isolate China, Xi Jinping had a showy appearance in Vietnam, where he posed as the guardian of “the multilateral trading system, … the stability of the global industrial and supply chains, and … the international environment for open cooperation.”

Xi also urged strengthening coordination and cooperation through regional initiatives such as the East Asia Cooperation and the Lancang-Mekong Cooperation, the ministry said, citing an article by the Chinese leader published in Vietnam media.

He called such efforts necessary to “inject more stability and positive energy into a chaotic and intertwined world”.

“There are no winners in trade wars and tariff wars, and protectionism has no way out,” Xi said, without mentioning the U.S. specifically.

“We must firmly safeguard the multilateral trading system, maintain the stability of the global industrial and supply chains, and maintain the international environment for open cooperation,” he said.

Last week, China sought to get ahead of U.S. negotiators, holding video calls with the EU and Malaysia, which is chairing ASEAN this year, as well as Saudi Arabia and South Africa, by way of reaching out to Gulf countries and the Group of 20 and BRICS nations.

And Trump has continued to destroy two important American markets that foster the kinds of friendship Bessent plans to exploit: tourism …

… And education:

President Donald Trump says he wants to reduce our trade deficit. Yet he’s destroying one of our winningest exports: higher education.

Colleges and universities are among America’s most competitive international exporters. In dollar terms, last year, the United States sold more educational services to the rest of the world than it sold in natural gas and coal combined.

We also run a huge trade surplus in this sector, meaning that foreigners buy much more education from the United States than Americans buy from other countries. In the 2022-2023 school year, more than three times as many international students were enrolled in the United States as there were American students studying abroad. Translated to cash: Our education-services trade surplus is larger than the trade surplus in the entire completed civilian aircraft sector.

Why? Regardless of what Trumpland claims, America is really, really good at higher education.

Sure, even in spite of the damage Trump has caused to US credibility, the US retains a lot of ways to coerce its, um, friends and allies. Trump and Bessent will have a showy meeting with Japan today — a Japan that might be behind the recent US bond sell-off.

But to get just a sense of the degree to which a lot of US coverage treats the US as the sole protagonist of this story, compare this really fascinating interview with Ursula Von der Leyen.

Sure, like US sources, she brags about the friends that keep calling, coyly denying she’s now the leader of the free world while assuming that mantel.

ZEIT: You have just given the question of whether you are the new leader of the Western world a wide berth. But don’t you have to accept that Europe – the EU, with you at its head – has recently become the most important guarantor of Western values in the world?

Von der Leyen: The West as we knew it no longer exists. The world has become a globe also geopolitically, and today our networks of friendship span the globe, as you can see in the debate about tariffs. A positive side effect is that I am currently having countless talks with heads of state and government around the world who want to work together with us on the new order. This is true from Iceland to New Zealand, from Canada to the United Arab Emirates, as it is for India, Malaysia, Indonesia, Philippines, Thailand, Mexico, and South America. Right now, I could have these conversations 24 hours a day. Everyone is asking for more trade with Europe – and it’s not just about economic ties. It is also about establishing common rules and it is about predictability. Europe is known for its predictability and reliability, which is once again starting to be seen as something very valuable. On the one hand, this is very gratifying; on the other hand, there is also of course a huge responsibility that we have to live up to.

But then, amid questions about whether Europe — the lever that Bessent imagines he’ll use against China — remains friends with the US, Von der Leyen describes “reality [as] a strong ally.”

ZEIT: You have said that you are still friends with America. The problem is, of course, that the Americans are not friends with themselves. Most don’t seem to like Europe very much either. So, what is the US: a friend, a former friend, an opponent?

Von der Leyen: I’m not a fan of these kinds of classifications. There are millions of transatlantic friendships and economic, private and cultural ties that have grown over decades, and you can’t put a label on them. Right now, our relationship with each other is complicated. What is crucial in this situation is that we Europeans know exactly what we want and what our goals are. So, then we are very well placed to deal with the Americans, because they are pragmatic and open and understand clear language well.

ZEIT: The tariff conflict with the US seems to escalate and abate, and we have to wonder what on earth the basis for the negotiations is.

Von der Leyen: Reality is a strong ally. I keep pointing out how much prosperity on both sides of the Atlantic has been created by trade and that tariffs are actually like taxes on businesses and consumers. There are four points that are important to us. The first is that we are seeking to negotiate a solution. In parallel to the negotiations, we are developing countermeasures that focus on trade in both goods and services. All options are on the table. The second point is that we must be very vigilant that Chinese goods do not flood our market now because of the trade war between the US and China. So, we have protective measures in place there. The third point is that we need to build new partnerships and establish broader trade relations. The fourth point is that we need to get rid of the barriers in the single market and deepen and harmonise it.

Then, after reiterating a threat against US digital services that you should click through to read, Von der Leyen contrasts European solidarity with America’s bro culture, the same bro culture that aims to destroy US universities and tourism.

Von der Leyen: Yes, I think people have realised that in times of crisis, solidarity within a strong community is something truly precious, and has helped everyone navigate serious crises better. So whenever we overcome a crisis, this is also a victory for Europe and the European ideal. May I sing Europe’s praises?

ZEIT: Absolutely. To my knowledge, self-exaltation isn’t banned under the European Constitution.

Von der Leyen: Europe is still a peace project. We don’t have bros or oligarchs making the rules. We don’t invade our neighbours, and we don’t punish them. On the contrary, there are twelve countries on the waiting list to become members of the European Union. That’s about 150 million people. In Europe, children can go to good schools however wealthy their parents are. We have lower CO2 emissions, we have higher life expectancy. Controversial debates are allowed at our universities. This and more are all values that must be defended, and which show that Europe is more than a union. Europe is our home. And people know that, people feel that.

There is posturing all around. But Von der Leyen looks so much more like a grown-up than Scott Bessent and his imaginary friends.

It’s not just me saying that.

Even some of Trump’s closest friends question whether Trump and Bessent have any.

While both equally destructive, Trump’s efforts to destroy America’s educational and scientific leadership are at odds with his attempt to gain some advantage out of destroying global trade.

As a result, Donald Trump has left poor Scott Bessent with increasingly imaginary friends.

Update: Paul Krugman focused on the same WSJ story I did and noted the same thing: The US has spoiled its opportunity to do the kind of negotiations Trump claims to want.

Second, even if U.S. negotiators are trying to cut deals with other countries that would isolate China, they will be unlikely to succeed because Trump has lost all credibility. After all, you can’t make deals with other countries unless foreign governments believe that you will honor the agreements you make. Trump has already destroyed U.S. credibility on that front, ripping up all our existing trade agreements, then making wild changes in his own tariffs every few days.

Third, even if Trump’s promises were credible, why would a European government want to join America’s trade war with China, destroying its own supply chains? If the argument is that it’s worth paying the cost of ruined supply chains because that will protect you from Trump’s tariffs, who trusts Trump not to reimpose punitive tariffs on our supposed allies the next time he thinks they’re looking at him funny?

Share this entry

On Same Day WSJ Confirms Boris Ephsteyn Negotiating Trump’s Law Firm Settlements, Amicus Raises Bribery Concerns

April 15, 2025/39 Comments/in emptywheel /by emptywheel

The other day, I did a post of all the entities that have filed amicus curiae briefs in support of Perkins Coie’s fight against being blackballed by Trump.

I updated the post today with an amicus from six ethics law professors.

George M. Cohen, Brokaw Professor of Corporate Law at the University of Virginia School of Law.

Susan P. Koniak, Professor of Law, Emerita, Boston University School of Law.

Jonah E. Perlin, Associate Professor of Law, Legal Practice and Senior Fellow of the Center on Ethics and the Legal Profession at Georgetown University Law Center.

Nancy B. Rapoport, UNLV Distinguished Professor & Garman Turner Gordon Professor of Law at William S. Boyd School of Law, University of Nevada, Las Vegas.

Mitt Regan, McDevitt Professor of Jurisprudence and Director of the Center on Ethics and the Legal Profession, Georgetown University Law Center.

W. Bradley Wendel, Edwin H. Woodruff Professor of Law at Cornell Law School.

I’ll come back to the substance of the brief in a bit.

But first, I wanted to point to this story, confirming something I had begun to suspect based on who was getting scoops about upcoming agreements with law firms: That Boris Ephsteyn is at the heart of negotiating Trump’s kickback schemes with law firms.

The story has a rather curious emphasis (but not a surprising one from Trump whisperer Josh Dawsey).

In ¶3, it describes in passing that Epshteyn was indicted in the Arizona case charging Trump’s attempt to steal the 2020 election (but doesn’t mention that he was indicted for, among other things, fraud).

Trump’s personal lawyer Boris Epshteyn, who has been indicted in Arizona on charges related to Trump’s 2020 election loss, has emerged as the face of the Trump administration’s campaign against large law firms that it views as hostile to the president and his causes,

In ¶6, the story repeats dubious claims that some law firms had qualms about negotiating with someone who wasn’t in government — but made no mention of qualms about negotiating with someone indicted for fraud.

Some of the law firms privately worried about negotiating with a lawyer who wasn’t employed by the government and didn’t have a government email address, some of the lawyers said. But they decided talking with Epshteyn was their best path to avoid a government investigation or executive order, the people said, after determining he had serious sway with Trump.

Then finally, in ¶¶20-21, the story returns to Ephsteyn’s indictment and only then mentions that David Warrington tried to oust Ephsteyn for soliciting kickbacks — precisely the kinds of kickbacks at question here — from people seeking jobs in the new Administration, up to and including Scott Bessent (who did get the job) and Bill McGinley (who at first got the job of White House Counsel, then was demoted to DOGE counsel, then left altogether).

WSJ doesn’t mention a lot of details about the alleged shakedown that were reported last November, such as the report that was done. It describes mostly that David Warrington warned Trump to cut ties with Ephsteyn.

Epshteyn is a polarizing figure among Trump advisers, and many question his tactics, according to campaign and administration officials. He was indicted in Arizona last year following an investigation into efforts to overturn Trump’s 2020 election loss in the state, and has pleaded not guilty there. He previously pleaded guilty to disorderly conduct as part of a bar incident. He was accused by Trump’s campaign lawyer of shaking down potential administration nominees for consulting contracts. Epshteyn has denied the allegations.

In a November email viewed by The Wall Street Journal, David Warrington, who was then-campaign counsel and is now the White House counsel, urged Trump to cut ties with Epshteyn.

And that’s it.

WSJ buried the Trump-friendly reports (including from John Solomon!) about this alleged shakedown, with no discussion of the import it would have for law firms — law firms!!! — to deal with someone indicted for felony fraud and alleged by Trump friendly insiders of unethical kickbacks.

How was that not the lead of the story? That Skadden (implicated in Paul Manafort’s corruption as well as an attack on US DNS experts) and Kirkland & Ellis (which represented Alfa Bank on related issues) — among other leading US law firms — were dealing with a guy accused by Trump’s own insiders of soliciting kickbacks in return for Administration jobs? Oh gosh, it’s unseemly, the WSJ story suggests the lawyers said, but what choice do we have?!?!?!

Which brings us back to the amicus from Legal Ethics professors. It raises several real concerns about conflicts and informed consent for law firm clients.

But it also raises a point I had been contemplating. How does this not raise concerns about bribery? How is exemption from these Executive Orders not an official act traded for millions in pro bono support?

Just as the President’s decision to issue executive orders that sanction certain law firms is an official act, so too is the President’s decision to withhold issuing executive orders that would sanction other law firms. See McDonnell v. United States, 579 U.S. 550, 574 (2016) (holding that for purposes of construing § 201, an “official act” essentially has two components: (1) “the public official must make a decision or take an action” on (2) “something specific and focused that is ‘pending’ or ‘may by law be brought’” before a public official). A law firm’s commitment to provide valuable pro bono services to the President’s preferred causes, made “with intent to influence” the decision whether to issue or withhold an executive order targeting those law firms, would appear to meet the quid pro quo requirement of federal bribery law.

The amicus notes, more politely than I have, that Pam Bondi’s DOJ is never going to prosecute bribery of any sort (aside from certain DC officials). Then it notes that DOJ used the threat of a bribery prosecution to coerce Eric Adams.

In the present circumstances, the Department of Justice likely would conclude that it is not in the public interest to prosecute law firms that offer pro bono services in exchange for avoiding the consequences of an executive order, even if that offer arguably constitutes a violation of § 201.3 Regardless, the President’s exertion of pressure on law firms to engage in conduct that could violate federal anti-bribery law further illustrates the ethical quandaries these executive orders create. Allowing Executive Order 14,230 to take effect would put more pressure on law firms to reach agreements with the President to avoid a similar fate, and in doing so compromise themselves to potential criminal liability.

3 Or perhaps not: the threat of criminal prosecution is a potent form of influence the federal government could exert to compel law firms to continue complying with the President’s demands. Cf. United States v. Adams, No. 24-CR-556, 2025 WL 978572, at *36 (S.D.N.Y. Apr. 2, 2025) (stating that the government “extract[ing] a public official’s cooperation with the administration’s agenda in exchange for dropping a prosecution . . . would be ‘clearly contrary to the public interest’” because it “violate[s] norms against using prosecutorial power for political ends” (quoting United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975))).

A guy already accused by Trump insiders of improper influence peddling is the guy offering these kickback settlements to white shoe law firms.

And the most concern they can muster, at least for the benefit of the WSJ, is a concern that Ephsteyn doesn’t have a government email address?

Share this entry

Self-Reportation: Pete Hegseth’s Witch Hunt Ensnared Himself

Trump Has No Policy Process, Just Wormtongue and Palace Intrigue

Harvie Wilkinson Tries To Salvage Trump v. US

Fridays with Nicole Sandler

Treating Opposition to Trump as a Partisan Issue Guarantees Defeat

Trump’s Individual Claims about Immigrant Targets Are False–But So Is the Larger Premise

Harvie Wilkinson on Due Process

Whiskey Pete Hegseth Finally Finds Some White Men to Purge

Scott Bessent’s Imaginary Friends

On Same Day WSJ Confirms Boris Ephsteyn Negotiating Trump’s Law Firm Settlements, Amicus Raises Bribery Concerns

Interesting links

Pages