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

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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.

  1. George M. Cohen, Brokaw Professor of Corporate Law at the University of Virginia School of Law.
  2. Susan P. Koniak, Professor of Law, Emerita, Boston University School of Law.
  3. 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.
  4. Nancy B. Rapoport, UNLV Distinguished Professor & Garman Turner Gordon Professor of Law at William S. Boyd School of Law, University of Nevada, Las Vegas.
  5. Mitt Regan, McDevitt Professor of Jurisprudence and Director of the Center on Ethics and the Legal Profession, Georgetown University Law Center.
  6. 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?

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Why Did Donald Trump Free Someone He Purports To Be a Dangerous Terrorist?

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Donald Trump, Nayib Bukele, and Kristi Noem love to make fascist spectacle.

They did it with the video showing the arrival of hundreds of people Trump sent to Bukele’s concentration camp. Noem did it with her visit to the camp. And they did it with the planned theater yesterday, including the staged hot mic moment where Trump told Bukele he wanted to send “homegrowns” to the concentration camp at CECOT.

They do it because fascist spectacle inspires fear. They do it because fascist spectacle goes viral, including with the help of data mules who purport to oppose its content.

They do it because it short circuits rational thought, overwhelming such rational thought with emotion.

The effect of yesterday’s fascist spectacle led virtually everyone to focus on a detail that won’t help the immediate fight before us — Trump’s interest in deporting “homegrowns,” an interest he has stated openly over and over, starting during campaign — rather than on details that might help Kilmar Abrego Garcia, and in the process help to prevent similar treatment of other migrants and, ultimately, American citizens.

Few people raised any of the questions posed by Trump’s latest attempt to retcon a legal case he already blew. Let’s start with the big one:

Why did Trump free someone, Abrego Garcia, whom Stephen Miller insists is a dangerous terrorist?

The latest theory about Abrego Garcia — one DOJ first rolled out at the Fourth Circuit — is that when the Trump Administration designated MS-13 a foreign terrorist organization earlier this year, it meant Abrego Garcia was no longer eligible for the withholding of removal granted to him in 2019.

It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador, given his claims about threats from a different gang. Final Removal Order 7–10. That conclusion was dubious then (and increasingly so now). But it has become totally untenable, given the Secretary of State’s designation of MS-13 as a Foreign Terrorist Organization in February. 90 Fed. Reg. at 10030–31.

As a result of that designation, and Abrego Garcia’s membership in that terrorist organization, he would no longer be eligible for withholding relief under the federal immigration laws. 8 U.S.C. §§ 1231(b)(3)(B)(iv); 1227(a)(4)(B). And as even Plaintiffs admit, the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection. See Reply 8. To be sure, the Government did not avail itself of that procedure in this case. But through the lens of the public interest, the district court’s stunning injunction does not fit that error. A mistake of process does not warrant the unprecedented remedy ordered—one that demands the return of a foreign terrorist from the foreign sovereign that agreed to take him.

Before this claim, DOJ barely mentioned two earlier rulings from 2019 (one two) asserting Abrego Garcia could not be released because of hearsay ties to MS-13, relying instead on procedural arguments. In a footnote, Judge Xinis ruled that DOJ did not rely on it before her.

Defendants did not assert—at any point prior to or during the April 4, 2025, hearing—that Abrego Garcia was an “enemy combatant,” an “alien enemy” under the Alien Enemies Act, 50 U.S.C. § 21, or removable based on MS13’s recent designation as a Foreign Terrorist Organization under 8 U.S.C. § 1189. Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court. In any event, Defendants have offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity. And vague allegations of gang association alone do not supersede the express protections afforded under the INA, including 8 U.S.C. §§ 1231(b)(3)(A), 1229a, and 1229b.

As Judge Stephanie Thacker noted in the Fourth Circuit opinion denying a stay the government thereby could not raise it before her.

Finally, I turn to the Government’s assertion that the public interest favors a stay because Abrego Garicia is a “prominent” member of MS-13 and is therefore “no longer eligible for withholding relief.” Mot. for Stay at 14–15. Whatever the merits of the 2019 determination of the Immigration Judge (“IJ”) regarding Abrego Garcia’s connection to MS-13,8 the Government presented “[n]o evidence” to the district court to “connect[] Abrego Garcia to MS-13 or any other criminal organization.” Dis.t Ct. Op. at 22 n.19; see also id. at 2 n.2 (“Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court.”). Indeed, such a fact cannot be gleaned from this record, which shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life. Tellingly, the Government “abandon[ed]” its position that Abrego Garcia was “a danger to the community” at the hearing before the district court. Dist. Ct. Op. at 22 n.19. The balance of equities must tip in the movant’s favor based on the record before the issuing court. An unsupported — and then abandoned — assertion that Abrego Garcia was a member of a gang, does not tip the scales in favor of removal in violation of this Administration’s own9 withholding order. If the Government wanted to prove to the district court that Abrego Garcia was a “prominent” member of MS-13, it has had ample opportunity to do so but has not — nor has it even bothered to try.

The Government’s argument that there is a public interest in removing members of “violent transnational gangs” from this country is no doubt true, but it does nothing to help the Government’s cause here. As noted, the Government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang, nor did the Government avail itself of the “procedural mechanism under governing regulations to reopen the immigration judge’s prior order[] and terminate its withholding protection.” Mot. for Stay at 16–17. The Government may not rely on its own failure to circumvent its own ruling that Abrego Garcia could not be removed to El Salvador.

8 Even then, the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” S.A. 146 n.5; Mot. for Stay Add. at 10–11.

9 Of note, the IJ’s 2019 decision, which granted Abrego Garcia withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A) because he faced threats to his life from an El Salvadoran gang that had targeted him and his family, was during President Trump’s 2016–2020 term in office. That decision became final on November 9, 2019, and was not appealed by this Administration.

But let’s take this retcon on its face. Stephen Miller has now decided, with no evidence provided, that Abrego Garcia is a “prominent” leader of MS-13, a gang on which DOJ focused closely for the entirety of the first Trump Administration. Miller says that Abrego Garcia is a danger to the community. Miller keeps screeching about terrorism.

If what Miller is saying now is true, it means that Trump released a dangerous criminal back in 2019. Why did Trump leave this man on the street to do dangerous things like raising three American citizen children for six years?

Update: Roger Parloff has a good summary of the flimsy case that Abrego Garcia has ties to MS-13.

Why is Trump so weak that he can’t make requests of the dictator of a small country?

Next consider Pam Bondi’s claim that, notwithstanding public reports that the detainees are just being held in CECOT for a year, notwithstanding Kristi Noem’s visit to the concentration camp, notwithstanding that the government just sent another ten people down there, the government is helpless to get Abrego Garcia back.

What does this say about Trump’s weakness as a President?

What kind of weak ass man can’t even make a request of a small Central American nation?

How does Trump think he’ll negotiate with Xi Jinping if he can’t even make a simple request of Bukele?

Will Stephen Miller send adjudged terrorists like Stewart Rhodes and Joe Biggs to Bukele’s concentration camp? Will Miller send DC US Attorney Ed Martin there, for palling around with adjudged terrorist Kelly Meggs, the same kind of associational ties used to send at least one of the men on the flights on March 15 to CECOT?

Next, let’s take Trump at his word that he wants to send “homegrowns” to CECOT.

Should Stewart Rhodes and Joe Biggs — both adjudged to be terrorists, both radicalized in the United States — both be packing their bags for the concentration camp? If Ed Martin has been palling around with adjudged terrorist Kelly Meggs — the same kind of associational guilt used to send at least one of the Venezuelans in the March 15 flight — should he worry about packing his bags?

Will Stephen Miller send his terrorists to the concentration camp?

Is Miller using the designation of terrorism just as a way to criminalize brown people, or will he send terrorists from his own tribe to the concentration camp?

Why is Stephen Miller terrified of — why does he want you to be terrified of — loving fathers? 

Miller has been accusing journalists who describe the contributions Abrego Garcia has made as a loving father to three American citizen children of lying, because journalists refuse to repeat his bleated accusations of terrorism with no evidence. Miller and Pam Bondi are working hard to get people to dumbly adopt their accusations.

But why is Miller so afraid of journalists describing Abrego Garcia as what he is, a father from Maryland?

Why does Pam Bondi keep destroying the careers of DOJ attorneys because they tell the truth?

When DOJ decided to retcon this case, they scapegoated the lawyer from whom they had withheld any sound legal basis, Erez Reuvani, along with his supervisor, both of whom were put on leave.

This, in spite of the fact that Drew Ensign called Reuveni “top notched” when he promoted him just weeks earlier.

In a March 21 email announcing Mr. Reuveni’s promotion to acting deputy director of the department’s Office of Immigration Litigation, his boss, Drew C. Ensign, lauded him for working on cases filed against sanctuary cities accused of defying federal immigration laws, and for generally helping to expand the department’s litigation activities.

“I want to thank those who submitted interest for the acting positions — we had outstanding choices, which helps go to show the excellent caliber of our team,” Mr. Ensign wrote.

Mr. Ensign has been handling a separate immigration case, one in which he has been defending the Trump administration’s use of a rarely invoked wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants accused of belonging to the street gang Tren de Aragua.

As DOJ has provided increasingly contemptuous updates to Judge Xinis, the AUSA who had appeared before her, Tarra DeShields, has backed off vouching for the arguments DOJ has made, instead listing her involvement as “fil[ing]” updates.

Finally, Ensign filed a notice of appearance and, apparently, took on this dogshit argument himself, as he did the Alien Enemies Act before Judge Boasberg.

Obviously, even committed immigration lawyers are unwilling to make these arguments. How many career attorneys will Pam Bondi chase away while floating these arguments?? How many careers will she destroy because the actions of the Trump administration have no defense in the law?

Has Bondi’s DOJ lost all presumption of regularity?

And the whole process of admitting fault, suspending the person who (along with several others) told that truth, and then inventing new theories after the fact has to start destroying the entire concept of presumption of regularity for DOJ.

Even before DeShields started getting cold feet, even before Stephen Miller started disclaiming the error that everyone has admitted, Ben Wittes raised this question: At what point are judges entitled to demand proof from DOJ lawyers for their claims?

Will Xinis demand that DOJ document their new theory that Trump’s terrorist designations retroactively make judge’s orders disappear?

Would Marco Rubio deport his own grandfather to a concentration camp if Stephen Miller told him to?

Abrego Garcia’s story — of a man who came to the US to seek a better life without proper paperwork, but who was allowed to stay and build a life — is not all that different from the story of Marco Rubio’s own grandfather, who was almost denied entry in part because of suspicions he had communist sympathies and even then only allowed to stay as a parolee.

It had been almost three years since he had last set foot in the United States, and he no longer had the proper credentials to enter. They told him he could stay for the time being, but if he wanted to avoid deportation, he would have to plead his case.

“I always thought of being here in the United States as a resident, living permanently here,” the slight 62-year-old grandfather, speaking through an interpreter, said at a hearing five weeks later. He said that he had previously returned to Cuba because he did not want to be a burden on his family in the United States, but that the Cuban government had grown too oppressive and he feared what might happen if he stayed.

The immigration officer was unmoved. He did not see an exiled family man — just someone who had no visa, worked for the Castro government and could pose a security risk.

“It is ordered that the applicant be excluded and deported from the United States,” he said matter-of-factly, according to an audio recording of the proceedings stored by the National Archives. He stopped to ask if Mr. Garcia understood.

“Yes, I do,” Mr. Garcia said plaintively.

That easily could have been the end of his American story. But someone in the immigration office on Biscayne Boulevard that day — the paperwork does not make clear exactly who or why — had a change of heart. Mr. Garcia was granted status as a parolee, a gray area of the law that meant he would not get a green card but could remain in the United States.

[snip]

Despite Mr. Garcia’s insistence that he was fleeing oppression, immigration officials raised suspicions that he might harbor communist sympathies, the records reveal. That charge, had they pursued it, could have led to a conclusion that he was a national security threat. (Details of Mr. Garcia’s immigration odyssey were reported in 2012 by Manuel Roig-Franzia in his book “The Rise of Marco Rubio.”)

In an interview, Mr. Rubio acknowledged that some would see a conflict between the stricter immigration and refugee policies he supports and his grandfather’s experience. Immigration records also show that other members of Mr. Rubio’s family — two aunts and an uncle — were admitted as refugees.

But Mr. Rubio said the difference between then and now is how much more sophisticated foreign infiltrators like the Islamic State have become, and how dangerous they are.

“I recognize that’s a valid point,” the senator said, “But what you didn’t have was a widespread effort on behalf of Fidel Castro to infiltrate into the United States killers who were going to detonate weapons and kill people.”

Last month, Trump announced the cessation of various parole programs, including a recent one including Cubans, effective on April 24. Which means, within days, Cubans could be among the Hispanic migrants that Stephen Miller packages up to send to Bukele’s concentration camp.

How many Cubans will Marco Rubio send away to a concentration camp? How many lives like Rubio’s own will the Secretary of State doom with his enthusiasm to send send loving fathers to concentration camps?

For too long Trump’s lefty opponents (liberals and progressives and those further left; anti-Trump Republicans are, in my opinion, actually far better at this) have largely failed to make Trump’s fascism a political problem. And while lawyers have done a great job of humanizing their clients — including Abrego Garcia — in public opinion, the rest of it, the contradictions and confessions of pathetic weakness, has largely gone unmentioned.

Do not abdicate making Abrego Garcia a political, as well as a legal, case. Do not get distracted by the fascist spectacle from using the fragile story rolled out yesterday against Trump. The stakes in this moment are too high.

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What Trump Wants From the Nayib Bukele Presser

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Stewart Rhodes remains an adjudged terrorist (having gotten a terrorism enhancement at sentencing, in a sentence that Trump commuted but did not pardon). Kilmar Abrego Garcia is not.

I start there because one of the biggest takeaways from the press conference Trump staged with Nayib Bukele today is that the claims that Abrego Garcia — and not the guy whom Trump freed on his first day on the job — is a terrorist went uncontested.

The entire press conference was staged, like a badly written play, and staged to set up tomorrow’s status hearing in the Kilmar Abrego Garcia case, and with it try to chip away at due process for undocumented people. Yes, in the longer run, Trump wants to set up the legal path to use CECOT as a concentration camp, including for Americans. But in the shorter term, I think Trump is trying to reverse two adverse SCOTUS decisions, the one ruling that everyone gets access to at least a habeas petition before being deported, and the other that would uphold the ruling that Abrego Garcia could be deported, but not to El Salvador.

As far as we know, Kilmar Abrego Garcia is a unique fact set among the people deported in the March 15 flights, and my guess is that after John Sauer came in, he decided to reset how DOJ deals with Abrego Garcia because he 1) had a negative ruling in 2019 and 2) is an undocumented Salvadoran citizen.

And so the presser today was designed to present an entirely new argument in the Abrego Garcia case, one that negates the repeated admissions of error (including even from Sauer) already in the court record.

After Kaitlan Collins started asking questions, all the people who should be submitting sworn declarations before Judge Paula Xinis made comments not burdened by oaths or the risk of contempt, rehearsed comments for the cameras.

Pam Bondi misrepresented the two 2019 rulings as findings that Abrego Garcia is a terrorist (as distinct from a ruling that he was not safe to release), and said that she was helpless to get Abrego Garcia back.

Stephen Miller laid out the new game plan at length (one he previewed on Fox beforehand): a claim that the SCOTUS order says the opposite of what it does, a claim that SCOTUS said that so long as this all gets packaged as foreign policy, Trump can deprive Abrego Garcia of his rights. A lie that the plan always to send Abrego Garcia to CECOT for precisely the purpose they’re putting forth today.

Marco Rubio had his speaking part, in which he affirmed the claim that this was all about foreign policy.

And then Bukele claimed he is helpless to return Abrego Garcia because — accepting the unsubstantiated claim that Abrego Garcia is a terrorist — he couldn’t bring someone like that back into the US (never mind that countries, including El Salvador, extradite actual terrorists to the US all the time).

So Bondi claimed to be helpless to ask Buekele to return Abrego Garcia. Bukele claimed to be helpless to return him. Depending on how SCOTUS treats the clear contempt for their ruling, it could have the desired effect, to get John Roberts to claim impotence.

There was no discussion of the US payments to Bukele, or past claims that Bukele is only temporarily holding the US deportees. (Though without the claim that this is temporary, the deportations to be held indefinitely in a third country become far more problematic.) Andrew Weissmann noted that Trump’s hot mic comment that Bukele should build five more camps suggests this is all being done at the US’ behest.

And, of course, there was no discussion that Trump freed a number of adjudged terrorists on his first day in office, his terrorists, terrorists now running free.

The Trump Administration is, in my opinion, trying to move the bar on deportation to a concentration camp. Contrary to Trump’s staged comment (for Bukele’s videographers) that Bukele needs to build five more concentration camps, I don’t think this theater was designed to get all the way to deporting American citizens now, not without more sanction from SCOTUS. I have no doubt he does want to get there, but thus far Trump has given what he does the patina of legal sanction, and he seems to believe he’ll get it here.

But I do think the theater scene was designed to get a second bid on this case from SCOTUS. And until people start focusing on Trump’s unsubstantiated claim that these men — Abrego Garcia and the others — are terrorists, until that claim is defeated politically, then Trump will continue to make legal progress.

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Things Go Boom When You Attempt to Retcon the Economy

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I keep writing about how Trump keeps retconning what he is doing legally, attempting to alter his explanations for what he’s doing, legally, when a first legal theory runs into trouble. The Trump administration has tried to retcon:

Trump has only accelerated these dizzying gyrations in attempting to explain how Kilmar Abrego Garcia ended up in a prison in El Salvador.

Thus far, Trump has dodged repercussions for this Choose Your Own Adventure lawyering, thanks in part to SCOTUS’ disruption of the Alien Enemies Act class act before Judge James Boasberg before he could hold anyone in contempt. There is a pending contempt request before Judge Paula Xinis in the Abrego Garcia case, but she will need to dot some Is and cross some Ts before she imposes sanctions and even there it would take time to target the sanctions against the people who deserve them.

I first IDed this Administrative retconning in the legal context because in the legal context there are rules about saying one thing and then changing your mind (though actually, I first IDed Trump’s reliance on retconning after the Haitian dogs and cats attack during the election). That is, it matters in a legal context because it may blow a legal case even in a context — such as deportations — where the President has expansive authority. The Supreme Court vastly expanded Trump’s power with the immunity decision, but his DOJ is so feckless it may end up losing anyway because they do something stupid (or at least wildly inconsistent) legally.

That’ll take time, though. Xinis will not rule quickly to avoid giving the government easy cause for reversal, and so won’t deliver the immediate punishment the government deserves.

But Trump has been retconning policies elsewhere, most especially in his rollout of tariffs.

Over the course of the last week, Trump rolled out:

  • Liberation day tariffs on everyone, including penguins, except the axis of authoritarians Trump idolizes
  • A blink
  • Tariffs on China
  • More tariffs on China
  • Still more tariffs on China
  • Even more tariffs on China
  • The Tim Apple exemption
  • A seeming reversal of the Tim Apple exemption

This is the very same policy ineptitude as we see with DOGE and in the legal context, but this time with the world’s biggest economy, and just as importantly, the glue that holds the global economy together.

In the legal context, this fecklessness — and the public retaliation on government lawyers for admitting that they’re being compartmented from real information — results in the gradual erosion of presumption of regularity, the equivalent of a house advantage that lets the government make seemingly unreasonable claims without immediate consequence.

But the presumption of regularity dissolves much more quickly in the financial context.

Justin Wolfers, who doesn’t have a substack but does have TikTok, described how Trump’s attempts to retcon his tariff policy has created two economic crises: the first created by Trump’s tariffs themselves, the second created by the retconning itself.

One of the reasons you saw the markets respond so strongly is there this crisis of confidence. It’s a crisis of confidence in the competence of the Administration. They’ve rolled out tariffs based on formula that make no economic sense. They stick with a plan where they say it’s all about one thing and then they roll it all back and say, you know what? we’ve been lying to you since Sunday when they already decided to change paths. They — tariffs on China yesterday, we were told, were 125% and today they’re 145%. I want you to stick with that for just a moment. You’ve got tariffs between two of the world’s great economic powers and people in the White House couldn’t tell you the correct tariff within 20 percentage points, which would normally be the entire trade war and they forgot whether it was 125 or whether it was 145.

In his substack, Paul Krugman likens the response to the treatment of the US economy like a developing economy.

The obvious explanation is that crazy policies have shaken investors’ faith in America, which has traditionally been viewed as a safe haven.

The topic of how Trump’s policies have messed with the bond markets – including the market for US Treasuries — is too difficult for me to cover today, but here’s more. The key point is that massive tariffs have disrupted the plumbing of the financial system, leading to soaring interest rates on U.S. government debt. That’s abnormal: rising odds of a recession usually lead to falling long-term interest rates, because the prospect of a recession raises the likelihood of future cuts by the Fed, which controls short-term rates. This time, however, rates are spiking, especially for very-long-term instruments like 30-year bonds, shown at the top of this post.

The common thread in currency and bond markets is that, thanks to Trump, dollar assets — traditionally the foundation of the global financial system — are no longer perceived as safe.

The combination of interest rates soaring amid a slump and the currency plunging despite rising interest rates isn’t what we normally expect for advanced countries, let alone the owner of the world’s leading reserve currency. It is, however, what we often see in emerging-market economies. That is, investors have started treating the United States like a third-world economy.

Did I see this coming? No, not really. Unlike the sanewashers, I knew that Trump’s policies would be irresponsible and destructive. However, even I didn’t expect him to destroy credibility accumulated over 80 years in less than three months. But he has.

And even if Trump were to backtrack on everything he’s done, we wouldn’t get the lost credibility back. The whole world, sanewashers aside, now knows that America is run by a mad king, surrounded by enablers, who can’t be trusted to behave rationally.

In court, Trump may have ways of dodging the consequences of getting caught retconning his story.

In the economy, there’s no way to unring the bell — probably not even the replacement of Trump, if that were to happen in the near term.

American financial hegemony has been built on a decades of reliability. That financial hegemony has given the US, and even US consumers, privileges other people don’t have. Importantly, that financial hegemony is the basis for tools — such as sanctions on Russia on Iran — that Trump claims to be threatening if he doesn’t get his way.

Things go boom when you try to retcon your economic explanations.

I alluded to this on Friday’s podcast with Nicole. It was inevitable that bankers and hedgies would have less patience with Trump’s equivocations than judges do, partly because of judicial comity and partly because SCOTUS will go some lengths to protect Trump.

But these are related issues. The utter fecklessness of Trump’s policy logic is consistent between law and the economy (indeed, DOGE occupies the sweet spot between the two of them). That doesn’t mean the bankers will care about all the other damage Elon Musk has been doing to the US. But it means Trump’s claim to omnipotence will start to unravel in ways that may provide opportunities elsewhere, including with Republicans who actually understand the privilege that arises from the US economic hegemony Trump is squandering.

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Amid DOGE’s Failure to Find Fraud Committed by Entities Other than DOGE, DOGE Automates Deportation

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The other day, Acting ICE Director Todd Lyons claimed he wanted to get his deportation system working like Amazon Prime does.

The leader of Immigration and Customs Enforcement said that his dream for the agency is squads of trucks rounding up immigrants for deportation the same way that Amazon trucks crisscross American cities delivering packages.

“We need to get better at treating this like a business,” Acting ICE Director Todd Lyons said, explaining he wants to see a deportation process “like (Amazon) Prime, but with human beings.”

At first, I had a hard time even envisioning what he could mean by that. But then NYT described how Trump has starting setting the Social Security records of immigrants to dead as a way to debank them.

The goal is to cut those people off from using crucial financial services like bank accounts and credit cards, along with their access to government benefits.

The effort hinges on a surprising new tactic: repurposing Social Security’s “death master file,” which for years has been used to track dead people who should no longer receive benefits, to include the names of living people who the government believes should be treated as if they are dead. As a result of being added to the death database, they would be blacklisted from a coveted form of identity that allows them to make and more easily spend money.

Earlier this week, the names of more than 6,300 migrants whose legal status had just been revoked were added to the file, according to the documents.

The initial names are limited to people the administration says are convicted criminals and “suspected terrorists,” the documents show. But officials said the effort could broaden to include others in the country without authorization.

Their “financial lives,” Leland Dudek, the Social Security Administration’s acting commissioner, wrote in an email to staff members, would be “terminated.”

[snip]

On Tuesday, Aram Moghaddassi, a software engineer working for DOGE, sent Mr. Dudek the first batch of names to be added: the list of more than 6,300 immigrants homeland security officials had identified as having temporary legal status but who were now either on what he described as “the terrorist watch list,” or had been flagged as having “F.B.I. criminal records,” the documents show. The people’s parole status had been revoked that same day, Mr. Moghaddassi wrote.

The list included a 13-year-old and seven other minors, raising fears inside the agency that it was overly broad, according to one person familiar with the list who spoke on the condition of anonymity to discuss sensitive information.

This will likely work in tandem with DHS’ plan to enforce a registration system, starting today, that serves to turn undocumented presence in the US into a felony (ironically, DHS is formalizing this registration system after Pam Bondi announced she’ll shift away from prosecuting FARA crimes, meaning the foreigners trying to influence US politics get better treatment than the ones picking crops).

Meanwhile, the acting IRS Commissioner, Melanie Krause, has announced her resignation after losing the battle to prevent tax data from being repurposed to feed Trump’s migrant campaign.

Krause’s decision to accept the agency’s deferred resignation offer comes on the heels of the IRS and Department of Homeland Security finalizing an agreement Monday to provide sensitive taxpayer data to federal immigration authorities to help the Trump administration locate and deport undocumented immigrants.

The controversial data sharing agreement between the agencies was one factor that played a role in Krause’s decision to leave, according to one source with knowledge of the situation. The source said that the last draft of the agreement that Krause had been involved with, and had reviewed, was different than the final agreement. Krause learned about the details of the final agreement from the news, the source said.

The Social Security-driven debanking and the IRS data-sharing are both DOGE-led efforts to mine data collected for one purpose and use it for another purpose — to make the deportation system work like a modern supply chain does. You might think this effort has nothing to do with waste fraud and abuse, but as I noted, back on February 19, Trump added streamlining deportation to the mandate of DOGE.

Meanwhile, yesterday Elon Musk confessed DOGE only expects to find $150 billion in saving for FY26 (that is, starting in October), a fraction of a fraction of what he previously claimed.

  • Musk said he anticipates the $150 billion savings in the next fiscal year at Trump’s cabinet meeting Thursday.
  • Musk repeated his claim that fraud and waste were “very common” in the government, this time giving the example, without evidence, of “people getting unemployment insurance who haven’t been born yet.”
  • As recently as last month, Musk told Fox’s Bret Baier he expected DOGE to reach $1 trillion in savings by the time his tenure as a government employee is up in a matter of months.

This means that Elon won’t manage the same level of savings that the Inspectors General that Trump fired were on course to find, all without cutting services like Elon has. We could still have cancer cures and achieve the same level of savings — and all that’s before you consider the $500 billion hole Elon created in revenue projections.

Trump brought in an alleged illegal immigrant in the guise of finding waste fraud and abuse.

And all he achieved was to dramatically cut services that Americans cherish and, in the guise of finding fraud, automate the deportation system.

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Trump’s Targeting of Susman Godfrey Targets a Law Firm that Stood with Perkins Coie

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Yesterday, Donald Trump targeted Susman Godfrey with his latest Executive Order targeting a law firm. That’s significant, because the firm both joined an amicus of 504 law firms and represents Former Senior Government officials with their own amicus (which among other things compares these EOs to McCarthy era blacklists). Trump’s “fact [sic] sheet” justifying the attack on Susman Godfrey is particularly thin, failing to lay out the specific things that have irked Trump, though undoubtedly the debunking of Trump’s false Dominion claims are among the grievances. It says, in part:

  • Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections.
  • Susman funds groups that engage in dangerous efforts to undermine the effectiveness of the U.S. military through the injection of political and radical ideology, and it supports efforts to discriminate on the basis of race.

Given Susman Godfrey’s active involvement in attempts to combat the Perkins Coie attack, it’s certainly possible that Trump includes efforts to combat his attack on law firms among what he considers an “efforts to weaponize the American legal system.”

So in the spirit of solidarity, I thought it’d be an appropriate time to extract a list of all the entities — mostly but not exclusively other lawyers or legal organizations — who have come out in support of Perkins Coie. It took a while, and it has yet to include the white shoe firms who are being similarly targeted, but in recent weeks a slew of entities have filed amicus briefs in support of Perkins Coie. (There are more amicus briefs coming in; I’ll update this accordingly.)

I’ve bolded several, often briefs that make apt historical comparisons, that I found most helpful. Note too the amicus briefs that address the toughest issue before Perkins Coie: To explain why Trump abused the President’s expansive authority to decide security clearances.

Susman Godfrey issued the following statement yesterday after Trump targeted the firm:

Anyone who knows Susman Godfrey knows we believe in the rule of law, and we take seriously our duty to uphold it. This principle guides us now. There is no question that we will fight this unconstitutional order.

By targeting a firm that stood up for Perkins Coie, Trump may well have escalated this issue.

Amicus briefs

Former DC Bar Presidents: On import of adversarial proceedings, providing history of lawyers — including Eleanor Holmes Norton — representing clients whose views they oppose.

363 Law Professors: On violations of First, Fifth, and Sixth Amendments. [A total of 676 signed the amicus filed in the Jenner and WilmerHale dockets.]

ACLU, EFF, CATO, and other legal advocacy groups: On retaliation and separation of powers.

Lawyers Defending American Democracy: Argues usurpation of judicial authority.

Lawyers Committee for Civil Rights Under Law: On import of pro bono bar.

NACDL and NYCDL: On violation of Sixth Amendment, citing John Roberts.

346 Former Judges: Argues order promotes hostility to adjudication and judicial offiers.

504 Law Firms (full list): Includes list of challenges to presidential initiatives, including Military Commissions, Affordable Care Act, Dodd-Frank

Solo Practitioner Kenneth Pickering: On climate of intimidation against all lawyers.

Litigation Firms: On zealous advocacy.

Former and Current General Counsel: Arguing the EO “hijacks a corporation’s relationship with outside counsel.”

Bar Associations: Describing that, “Undermining the bar’s independence has historically been a key step on the road to
authoritarianism.”

NAACP Legal Defense Fund: Recalling similar efforts under Jim Crow, arguing that Black Americans are particularly vulnerable when government ignores rule of law. Addresses Bill of Attainder.

International Academy of Trial Lawyers: Citing Principle 16 of the United Nations Basic Principles on the Role of Lawyers.

Former Senior Government Officials (full list): EO not authorized by Congress, nor by inherent powers, including justiciability of security clearances. Notes lack of historical precedent. Addresses Bill of Attainder.

Media and Press Freedom Organizations (full list): Argues that Trump will use similar tactics against the press.

Korematsu Center: Warns against deference to government claims of national security (also citing Gitmo). Cites precedent prohibiting government sanction of law firms to prevent challenges. 

Legal Ethics Professors: Raises concerns about informed consent for clients and bribery statutes.

Perkins Coie filings

[docket]

March 11: Complaint

March 11: Motion for TRO

March 12: AUSA Douglas Dreier files notice of appearance; AUSA Terry Henry files notice of appearance that includes CoS Chad Mizelle

March 12: Order granting TRO

March 14: DAAG Richard Lawson files notice of appearance

March 14: Status report on compliance

March 18: Douglas Dreier withdraws appearance

March 18: Follow-up status report on compliance (signed exclusively by political appointees)

March 18: Motion to clarify TRO (narcing out DOJ for limiting agencies that comply)

March 20: Status report (filed late)

March 20: Supplemental status report offering thin excuses for not fully complying at first

March 21: Motion to disqualify Beryl Howell

March 26: Order denying motion to disqualify

April 2: Motion for summary judgment

April 2: Motion to dismiss (claiming, among other things, shotgun pleading that doomed Trump’s lawsuit against Perkins Coie in Florida, and including a short substance-free paragraph on the Steele dossier)

April 2: Motion to reconsider scope of injunction (leading other law firms to include each and every agency defendant)

WilmerHale filings

[docket]

March 28: Motion for TRO, Preliminary Injunction

April 8: Motion to dismiss (which seems to include things from Perkins Coie filing inapplicable here)

April 8: Motion for summary judgement

Jenner & Block filings

[docket]

March 28: Motion for Temporary Restraining Order

April 8: Motion for summary judgement

April 8: Motion to dismiss

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Trump’s Latest Weaponization Is about Historic Loyalty Oaths as Much as Current Ones

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Yesterday, Trump issued three more Executive Orders targeting people for their free speech:

It seems Trump has an unlimited appetite for stripping people of security clearances they don’t hold. Or perhaps Trump’s handlers have figured out these EOs will provide an endless supply of dopamine hits that make the care and feeding of a malignant narcissist easier.

I want to add something to the flood of commentary about this abuse of power.

Miles Taylor, recall, was the author of an anonymous column published in the NYT.

To be clear, ours is not the popular “resistance” of the left. We want the administration to succeed and think that many of its policies have already made America safer and more prosperous.

But we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic.

That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.

The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making.

Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people. At best, he has invoked these ideals in scripted settings. At worst, he has attacked them outright.

In addition to his mass-marketing of the notion that the press is the “enemy of the people,” President Trump’s impulses are generally anti-trade and anti-democratic.

He left the White House in June 2019, over five years ago, and identified himself as Anonymous in October 2020.

Chris Krebs was the eminently competent head of CISA whom Trump fired by Tweet in November 2020, 53 months ago, after Krebs affirmed the integrity of the 2020 election.

The fact [sic] sheet targeting Krebs describes this as an attempt to “end government censorship,” but then describes it as a part of “ensuring loyalty” (to the US; I guess Trump has lost track of where “C’est moi” ends and “l’État” begins).

ENDING GOVERNMENT CENSORSHIP: President Trump is committed to ending government censorship of Americans and believes that those who engage in such conduct should not have access to our nation’s secrets.

[snip]

ENSURING LOYALTY AND ACCOUNTABILITY: President Trump has made clear that loyalty to the United States must come before personal or partisan agendas, taking decisive action against those who misuse their undeserved influence to deceive the American public.

The fact [sic] sheet against Taylor fashions itself explicitly as an attempt to root out “betrayal.” and then asserts that one “drains the swamp” by “rooting out … disloyalty.”

ERADICATING GOVERNMENT BETRAYAL: President Trump is committed to ending the weaponization of government and believes that those who engage in such conduct should not have access to our nation’s secrets.

[snip]

DRAINING THE SWAMP: President Trump is delivering on his promise to drain the swamp by rooting out inefficiency, corruption, and disloyalty.

Both of these, then, explicitly make an example of past Trump appointees who “betrayed” Trump. They serve as an object lesson to the people leaking now.

But they are more than that. They also serve to order up an investigation into both men’s networks from their tenure under Trump.

Both EOs direct the Department of Homeland Security (for which both worked) to review their government activities to see whether they violated “suitability standards for Federal employees” or entailed dissemination of classified information; in Krebs’ case, Trump’s order explicitly incorporates Pam Bondi into the investigation as well, whereas the Taylor one only incorporates “any other relevant agency heads.”

Both deviate from earlier EOs in delivering the end report to the White House Counsel rather than Stephen Miller.

Here’s how that looks in the Krebs EO.

I further direct the Attorney General and the Secretary of Homeland Security, in consultation with any other agency head, to take all appropriate action to review Krebs’ activities as a Government employee, including his leadership of CISA. This review should identify any instances where Krebs’ conduct appears to have been contrary to suitability standards for Federal employees, involved the unauthorized dissemination of classified information, or contrary to the purposes and policies identified in Executive Order 14149 of January 20, 2025 (Restoring Freedom of Speech and Ending Federal Censorship). As part of that review, I direct a comprehensive evaluation of all of CISA’s activities over the last 6 years, focusing specifically on any instances where CISA’s conduct appears to have been contrary to the purposes and policies identified in Executive Order 14149. Upon completing these reviews, the Attorney General and the Secretary of Homeland Security shall prepare a joint report to be submitted to the President, through the Counsel to the President, with recommendations for appropriate remedial or preventative actions to be taken to fulfill the purposes and policies of Executive Order 14149. [my emphasis]

But there’s one more item of interest.

The investigative language builds on the EO Trump signed on inauguration day, which is mentioned prominently in the Krebs EO.

(b) The Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy, with recommendations for appropriate remedial actions to be taken based on the findings of the report.

But it expands the review by two years.

That is, the investigative language in both these EOs authorizes the investigation of actions — and people — from Trump’s first term. In the guise of leak investigations (18 USC 793 has a ten year statute of limitation, otherwise any investigation into the nearly or already expired statutes of limitation would be pointless).

And the investigation within Homeland Security would roll out without court review. (I expect some of these witch hunts will be stymied by judges who recognize the command influence and obvious fraudulent accusations behind them).

This effort doesn’t just target Krebs and Taylor for what Trump claims is “betrayal.” It also provides the excuse to map out their associates within government, including those who may still be around.

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Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

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The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

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Introduction To Series On Curtis Yarvin

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Trump acts on his stupid ideas, and on the foolish chatter of whatever loon has his ear. He and his courtiers and henchmen recite crackpot theories to justify working for their own ends, with no pretense of oversight by Trump or Republican legislators.

Some of these weirdo theories, like the tariff gibberish and Christian Nationalism, are well-known. They’ve been discussed in progressive circles for some time, and are occasionally acknowledged in the billionaire media. What I did not know, and what was rarely reported in the media I read, was the influence of a group of anti-democracy advocates.

Recently I began to read about Curtis Yarvin. Heather Cox Richardson mentioned him in one of her Letters To An American, and commenter TruthBtold linked to this substack reporting on Yarvin.  Here’s an article in Commonweal, Yarvin’s Case Against Democracy.

In 2012 Yarvin gave a speech titled How To Reboot The US Government. He gave more speeches and interviews on the subject and drew the attention of rich techbros and right-wing politicians like J.D. Vance. It looks like Elon Musk used Yarvin’s ideas first to remake Twitter as a hang-out for creeps, and then as a template for destroying our govenrment from the inside.

Yarvin claims that democracy has failed and that the only way forward is to get rid of it and replace it with a dictatorship, or a monarchy. It’s a view shared by a lot of people on the far right, and for different reasons by the same filthy rich thugs who’ve been wrecking our country out of hatred for the New Deal and all things that make life better for working people. I’ll be looking into Yarvin’s writings in my next series.

Background

This stuff is wild. To orient myself, I read a chapter written by Joshua Tait in a book, Key Thinkers of the Radical Right: Behind the New Threat to Liberal Democracy. The book is supposedly available through your library. Tait focuses on a blog Yarvin wrote under the name Mencius Moldbug, Unqualified Reservations.  He gives an introduction to Yarvin’s theory of neoreaction, and his rejection of democracy.

Neoreaction’s basic assumption is that humans desire power. Interpreting democracy through this framework, Moldbug claims that democracy’s appeal is that it disperses power widely, indulging the mass desire for useless fragments of power. Since power-seeking is pervasive, society trends toward greater division of power and a concomitant erosion of order. Democracy is a “dangerous, malignant form of government which tends to degenerate, sometimes slowly and sometimes with shocking, gut-wrenching speed, into tyranny and chaos.”

Trump and his henchmen don’t acknowledge the anti-democratic aspect of Yarvin’s thought, at least not so far, unless you consider Trump’s third-term garbage. They just follow his plan for destroying the institutions that diffuse power; and work at concentrating power into the hands of Musk and Trump. Yarvin’s views  can be seen as justifying the unitary executive theory, and for presidential kingship, as contemplated by John Roberts and his anti-democratic colleagues in Trump v. US.

In his blog Yarvin traces out the development of his theories of history, economics and other matters. The blog ran from 2007 to 2014. He has a substack, Gray Mirror, which began in May 2020 (after Tait’s article) where he posted drafts of his book Gray Mirror: Fascicle I: Disturbance, published January 2025. The title is Yarvin trolling: fascicle is close to fascist, but means something else. I’m reluctant to buy the book so I plan to read from the two online sources first. He shows up on other social media sites, but I’m not going there.

I plan to focus on the anti-democracy material and his views of human nature. We’ll see how that holds up.

Defending Democracy

I won’t defend democracy here. I follow Americans like John Dewey and Richard Rorty. See, e.g. Rorty’s Achieving Our Country. My rationale for defending democracy is my understanding of human nature, which I discussed in my series on individuality.

But I also think that we as a nation have for a long time regarded democracy as background for our lives. We see it as a game we watch on TV. We yell at politicians as we would yell at referees. We don’t think of democracy as making any demands on us, much less as something that requires our constant maintenance and improvement.

Caveat

It’s very difficult to write about material with which you fundamentally disagree. There’s a strong tendency to minimize any good points, and to mock rather than try to understand.

I plan to be very careful about separating Yarvin’s words from my thoughts on how to understand what he’s saying, and to try to indicate where I’m having trouble following an argument, so that readers can check my thinking. That should help with the bias problem.

It’s important to note that Yarvin isn’t some Qanon weirdo cranking out conspiracies. I assume that he’s read the material he cites, and that he has tried to be intellectually honest. That distinguishes him from craven ideologues like the SCOTUS right-wingers and from lazy hacks like David Brooks.

Final thought

Yarvin and the filthy rich idiots he influences are dangerously wrong, wrong in a deeply fundamental way. They think they know what’s best. Not what’s best for you and your family and community. They think they know what’s best for the future of the human race.

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