emptywheel Archives - Page 8 of 278

Kash Patel Yapped His Mouth with a REAL Feeb

September 11, 2025/68 Comments/in emptywheel /by emptywheel

There’ll be a lot of good articles on this lawsuit that three recently fired senior FBI agents — Brian Driscoll, Steven Jensen, and Spencer Evans — have filed against Kash Patel, Pam Bondi, and the agencies that fired them. For example, NYT focuses on disclosures about Stephen Miller’s role in running DOJ. NPR focuses on Dan Bongino’s obsession with social media.

The complaint retells stories already reported in the press, such as how the Trump Administration intended to hire Robert Kissane as interim FBI Director but fucked up the announcement, so Driscoll served instead. There are descriptions designed to be embarrassing — if not debilitating to Kash’s ability to lead the agency — such as the revelation that Kash has a collection of whiskey and cigars in his office and that Kash’s challenge coin that is unusually large. The audience for such disclosures goes beyond Judge Jia Cobb, who’ll preside over the case, to members of Congress who’ll hold hearings with Kash just days from now.

These details discrediting Kash’s leadership are matched by details describing how these men, especially Driscoll, were fired because of their efforts to treat FBI agents with respect and dignity, intervening to prevent firings or mitigate the impact of them. A long passage describes Driscoll’s efforts to undercut Emil Bove’s jihad against agents who–like Bove and Driscoll themselves–had participated in the January 6 investigation. This includes an anecdote about how Bove bolloxed an attempt to send an email to the entire FBI workforce to complain about Driscoll.

This is a speaking complaint written by people who’ve helped write their share of speaking indictments in their careers.

Which is why my favorite line is the one describing Kash acknowledging that these firings could lead to his deposition: “[Kash] again commented that he knew the nature of the summary firings were likely illegal and that he could be sued and later deposed.” [my emphasis]

The deposition comment, as it pertains to Kash, appears twice in the lawsuit: once at the beginning, to substantiate that Kash knew these firings were unlawful, which the complaint immediately contrasts with the sworn promises Kash made to the Senate not to politicize firings.

4. Patel openly acknowledged the unlawfulness of his actions. On or about August 5, 2025, in a conversation with Driscoll, Patel plainly stated the reasoning behind his firing of FBI employees that Mr. Driscoll sought to defend. In sum and substance, Patel admitted that his superiors, who he referred to as “they” and who Driscoll understood to include Defendant Department of Justice (“DOJ”) and the White House (which encompasses Defendant Executive Office of the President (“EOP”)), had directed him to fire anyone who they identified as having worked on a criminal investigation against President Donald J. Trump. Patel explained that he had to fire the people his superiors told him to fire, because his ability to keep his own job depended on the removal of the agents who worked on cases involving the President. Patel explained that there was nothing he or Driscoll could do to stop these or any other firings, because “the FBI tried to put the President in jail and he hasn’t forgotten it.” Driscoll indicated his belief that Patel’s reference to his superiors meant DOJ and the White House, and Patel did not deny it.

5. When Driscoll explained that firing employees based on case assignments would be in direct violation of internal FBI processes meant to adjudicate adverse actions and prevent retaliation based on case assignments, Patel said that he understood that and he knew the nature of the summary firings were likely illegal and that he could be sued and later deposed.

6. Patel’s actions stood in stark contrast to his sworn testimony during his confirmation hearing before the Senate Judiciary Committee. There, he assured the Committee and the country that “all FBI employees will be protected against political retribution.” An exchange with Senator Richard Blumenthal on the topic of firing agents who worked on criminal investigations involving President Trump proceeded as follows:

Sen. Blumenthal: You’ve committed that the FBI will not be politicized. So here’s your first test. Will you commit that you will not tolerate the firing of the FBI agents who worked with the Special Counsel’s Office on these investigations? . . .

Patel: Senator. Every FBI employee will be held to the absolute same standard, and no one will be terminated for case assignments.

7. Likewise in his written responses to a Senate Questionnaire, Patel repeatedly emphasized his commitment that “personnel decisions should be based on performance and adherence to the law” and that “every FBI employee will be held to the absolute same standard, and no one will be terminated for case assignments.” He also asserted that he would “ensure that the appropriate processes are always followed” with respect to adverse actions against FBI personnel.

The lawsuit repeats the deposition comment twice in a longer passage where Driscoll describes how he was fired because he attempted to prevent the firing of another agent, Christopher Meyer, who had been assigned to pilot Kash’s frequent flights back to Las Vegas.

169. On or around August 1, 2025, FBI Supervisory Special Agent Chris Meyer became the subject of intense social media activity. Specifically, various social media posts claimed incorrectly that Meyer had been the signatory to the Mar-a-Lago search warrant affidavit and was now Patel’s personal pilot.

170. In fact, Meyer was not the signatory to the Mar-a-Lago search warrant affidavit. He was not the case agent for the investigation concerning President Trump’s handling of classified documents, nor did he participate in the search of Mar-a-Lago.

[snip]

173. On Saturday, August 2, 2025, the FBI’s Associate Deputy Director and Chief Operating Officer Will Rivers called Driscoll to ask him for details about Meyer. Meyer is a military veteran and a qualified pilot. As part of his duties with the FBI, he flew the FBI’s private jet, a Gulfstream G550, which means he served as the FBI Director’s pilot while on duty. Along with those duties, Meyer—and all of the G550 pilots—also flew HRT personnel to overseas missions and other mission-critical assignments. HRT is also responsible for flying “Foreign Transfer of Custody” missions, which detains and transports terrorists and criminals from overseas to the United States to face criminal prosecution. In short, each pilot in CIRG plays an essential role in critical FBI missions.

174. Rivers wanted to know Meyer’s current location and whether he was flying the Director on his current trip. He also asked Driscoll about Meyer’s tenure with the FBI, which was approximately 13 years. Rivers told Driscoll that Meyer was no longer permitted to fly the Director’s plane.

[snip]

179. At this point, Driscoll demanded an opportunity to speak with Patel in person, to which Rivers agreed. Driscoll scheduled a meeting with Patel for Tuesday, August 5, 2025.

180. Driscoll later spoke with Meyer over the phone and informed him that he would no longer be allowed to pilot Patel’s aircraft. Driscoll also told Meyer that he would be raising the issue with the Director and would challenge the decision.

181. On Monday, August 4, 2024, Driscoll received a call from Bongino. Bongino asked Driscoll if anybody would be able to “find anything” in his emails from the time he (Driscoll) was serving as Acting Director. Driscoll replied that there would be nothing incriminating to find in his emails during this time and took Bongino’s question to mean that somebody besides Bongino and Patel would be searching through his old emails in an attempt to find a basis for firing him. Bongino said that he would attempt to keep Driscoll in place.

182. On Tuesday, August 5, 2025, at 9:00 a.m., Driscoll again met with Rivers. This meeting included a status update on Meyer.

183. At 10:00 a.m. on August 5, 2025, Driscoll met directly with Patel to discuss Meyer. Specifically, Driscoll stated that summarily firing Meyer would be illegal based on his military veteran status and would also violate all established FBI policies for adverse actions against personnel.

184. Patel responded that Meyer would be fired by Friday, August 8, 2025, and that there was nothing either Patel or Driscoll could say or do that would stop it. Driscoll pointed out that Meyer had not committed any misconduct and that being assigned to cases could not be grounds for termination. Patel said he understood this, but that as Driscoll should know from “sitting in this seat,” meaning serving as the Director, that “you can’t save everyone.”

185. When Driscoll explained it, Patel acknowledged that the FBI would be sued and would lose in court. He also acknowledged that he would likely be deposed concerning his knowledge of the reasons for Meyer’s termination. He also acknowledged that the FBI workforce would likely respond negatively to Meyer’s termination.

186. Patel stated that all FBI employees who they identified who had worked on the cases against President Trump would be removed from their jobs, regardless of their retirement eligibility status. He then stated that Driscoll needed to understand that “the FBI tried to put the President in jail and he hasn’t forgotten it.” Patel then stated that his own job depended on the removal of the agents who worked on the cases against the President, regardless of whether the agents chose to work on those cases or not. Patel acknowledged that this would be in direct violation of internal FBI processes meant to adjudicate adverse actions and prevent retaliation based on case assignments. He again commented that he knew the nature of the summary firings were likely illegal and that he could be sued and later deposed. [my emphasis]

There’s even the equivalent passage where Steven Jensen staved off Walter Giardina’s firing for some months by warning Dan Bongino that he might face a deposition.

130. At some point in May 2025, Jensen received a phone call from Bongino, who was audibly upset. He asked Jensen whether he knew who SA Walter Giardina was and told Jensen that he has “got to go.” Giardina was an agent assigned to WFO. Jensen asked him to elaborate, but Bongino explained that he could not do so over the phone. Jensen met him at FBI Headquarters to continue the discussion. Jensen knew Giardina to be a dedicated and hardworking FBI agent who was assigned to high-profile investigations into members of both political parties because of these qualities.

131. Upon arriving at FBI Headquarters, Jensen found Bongino in his Chief of Staff’s office. Bongino looked as if he had not slept for several days. He seemed extremely anxious and agitated. Jensen asked him what was wrong. Bongino explained that he had found a room filled with classified documents and “burn bags” related to the now-closed Crossfire Hurricane investigation. He expressed shock at the existence of these burn bags.

132. By his comments, it seemed to Jensen that Bongino might not have been fully aware that the use of “burn bags” is a standard method across multiple federal agencies for preparing classified material for destruction when an investigation is deemed closed, or when physical copies of the materials are no longer necessary. He also appeared unaware that the FBI also stored digital copies of materials on the FBI’s classified computer system, and that this was likely the case with these materials. At the meeting, Bongino also made an unfounded additional allegation about Giardina’s handling of data, claiming that the allegation was “just out there.”

133. Bongino insisted that Jensen summarily fire Giardina. Jensen explained that Giardina was a military veteran and was entitled to certain rights which did not allow such a firing. He explained that if Bongino forced him to summarily fire Giardina, he would document in a report that the firing was at the direction of Bongino and had occurred after Jensen explained why the firing violated FBI procedures and Giardina’s rights. He explained that Bongino would likely be deposed in a lawsuit should Giardina choose to challenge his unlawful firing. Bongino did not pursue further his demand that Giardina be summarily fired in that meeting. In fact, Giardina was never assigned to work on Crossfire Hurricane. [my emphasis]

Note the similarity between these two conversations: in both, FBI’s top officials ordered their subordinates to fire someone based — at least partly — on false premises, shit floating around on social media (involvement in the Mar-a-Lago search in Meyer’s case, involvement in Crossfire Hurricane and mishandling data in Giardina’s case, both marked in blue). Both involve military veterans whose status prohibits certain kinds of firing (marked in red). In both, the subordinate gave warnings that such firings would be illegal (marked in green); Kash repeatedly acknowledged he knew those firings would be illegal.

Both of these exchanges, as described, were set up like witness interviews, where FBI agents know how to repeatedly get the core admission from the subject.

There’s some question whether Jensen and Driscoll documented these exchanges and if so how. Jensen said he would document the conversation if Bongino went ahead and fired Giardina in May, which he did not do. A footnote explains,

3 The facts alleged in this section are based primarily on the firsthand knowledge, best recollections, and/or communications of and involving Plaintiffs. Unless otherwise indicated with quotation marks, descriptions of conversations and other oral statements are reflected in sum and substance and to the best recollections of Plaintiffs.

That doesn’t explain what kind of documentation each man made of the conversations or when. Both men know well the lesson of Jim Comey, whose attempt to take official notes with him after he was fired was criminalized over the course of years. But both men were also trained, over decades, to write 302 reports after the fact that would be deemed reliable in court.

In any case, Driscoll makes sure to name the witnesses to various parts of this progression: The conversations with Will Rivers on August 2 and — just before the conversation with Kash — on August 5. The phone conversation with Bongino on August 4. Details of timing that would show up in phone records and official calendars.

These are men who know how to substantiate a case, and in the case of these crucial conversations, did so.

Which is why the warnings about the depositions are so delicious.

It actually is hard to demand that FBI Directors and their Deputies sit for a deposition. There’s a whole body of precedent that requires plaintiffs to work their way up to more senior officials. For example, Peter Strzok (the circumstances of whose firing and subsequent lawsuit, which made some of the very same First Amendment and Due Process claims, Driscoll and Jensen presumably also know well) had to fight hard to get Chris Wray to sit for a deposition, and even harder to get Trump to sit for one.

But here, the plaintiffs have the defendants on the record noting that they would have to sit for depositions.

The depositions themselves would be worse than embarrassing. They would record:

Both men’s rank ignorance of FBI processes
The erroneous social media conspiracies that dictated firings of highly qualified FBI agents
Acknowledgment — laid out elsewhere in the complaint — by both Bongino and Kash that these men were doing their jobs competently
As noted, the knowledge of all the reasons why the firings of Giardina and Meyer, as well as those of the plaintiffs, were illegal (note, at least per the biographies in the complaint, none of the plaintiffs are veterans entitled to special treatment on firings)

In that first instance, the warning about the deposition does something else.

The White House is a defendant in this lawsuit. The basis for that rests in part on Emil Bove’s repeated explanations that Stephen Miller was ordering up the FBI firings and specific references to White House involvement that both Bongino and Kash relayed to Jensen. But it also rests in that question — again, from a trained FBI agent — about who Kash meant by “they.” “Driscoll indicated his belief that Patel’s reference to his superiors meant DOJ and the White House, and Patel did not deny it.”

Again, this may help plaintiffs clear a hurdle that also proved onerous for Strzok and Andrew McCabe when they tried to pierce the orders the White House gave to politicize the FBI. Effectively, Driscoll already got the concession that he would have had to get in a deposition to start asking for details on — say — Stephen Miller’s role in all this, to say nothing of Kash’s understanding (and this is one of the few things put in quotation marks) that, “the FBI tried to put the President in jail and he hasn’t forgotten it.”

Kash, because he ran his mouth, may have made it easier to demand a deposition of President Trump in this case.

And finally, there’s the contrast between the concession that he might have to sit for a deposition with the sworn promises that Kash made to get confirmed. Kash already has a history of false claims that got him in legal trouble, with the grand jury testimony that he succeeded in burying during his confirmation. But here, the plaintiffs have dangled the threat of posing one set of sworn statements — that no agents would be fired for the cases they worked — with the admissions Kash already admitted he might have to make in a deposition.

To be sure, this case still faces the same hurdles and delays that both McCabe and Strzok faced (Strzok is still waiting to hear whether his case will go to trial). But because neither Bongino nor Kash could acquit themselves competently when interacting with men who had spent years doing certain FBI agent things, they’ve already backed themselves, and the people — “they” — who ordered these firings, into certain corners.

Share this entry

“He was accompanied by a beautiful date”

September 10, 2025/90 Comments/in emptywheel /by emptywheel

The NYT has now provided backstory to a part of the Epstein birthday book even more obscene than Trump’s own letter: the picture, submitted by Joel Pashcow, of Epstein holding a check doctored after the fact to look like it was signed by Trump.

The photo is captioned,

Jeffrey showing early talents with money + women! sells “fully depreciated” [redacted] to Donald Trump for $22,500. Showed early “people skills” too. Even though I handled the deal, I didn’t get any of the money or the girl!

The photo is actually the third page of Pashcow’s submission. After a page full of images of girls in suggestive positions, Pashcow included a clear allusion to Epstein’s predation, a progression from offering balloons to prepubescent girls in 1983 to him receiving massages from topless young women in 2003, the year of the birthday book. (It’s unclear whether the 2003 image is meant to be Mar-a-Lago or Epstein’s private island.)

The NYT offers this explanation for the photo:

It shows a photograph of Mr. Pashcow at the resort with Mr. Epstein, another man and a woman whose face is redacted. Mr. Pashcow is holding an oversize check that appears to have been doctored, with a seemingly phony “DJ TRUMP” signature.

A handwritten note under the photo, which was taken in the 1990s, joked that Mr. Epstein showed “early talents with money + women,” and had sold a “fully depreciated” woman to Mr. Trump for $22,500.

The woman, whose name is also redacted in the files released by the House Oversight Committee, was a European socialite then in her 20s, according to two people familiar with the original photo. She had briefly dated both Mr. Epstein and Mr. Trump around that time, according to court transcripts and a person close to Mr. Epstein. The birthday book entry appears to be a reference to the competition between the two men for the woman’s affections.

The nature of the woman’s relationship with Mr. Epstein is murky. The New York Times is not naming her because she may have been one of his victims.

A lawyer for the woman said she knew Mr. Epstein in “a professional capacity” when she was a student but severed ties with him in 1997. She did not know anything about the letter or its “derogatory content,” the lawyer added.

Between the comment from the woman’s lawyer — who said she severed ties with Epstein in 1997 — and NYT’s photo analysis, they date the photo to a narrow period of time in 1996 to 1997.

A visual analysis by The Times found that the photo was taken at Mar-a-Lago after the resort opened as a club in 1996 and was landscaped with palm trees and other features. In the background of the photo, a thatched hut is visible in front of a line of palm trees. The area is bordered by a white picket fence and what appears to be the white band of a tennis net is visible in front of the hut. The features match what was captured at the club by the renowned tennis photographer Art Seitz in February 1997.

That’s the news report.

The trick is that many of these submissions are full of inside jokes, peddling the kind of masculine bravado often divorced from facts. Why did Pashcow show a progression from 1983 to 2003 in the earlier drawing depicting grooming, for example, when the earlier date shown, 1983, postdated his time — from 1974 to 1976 — at Dalton School, the most obvious explanation for depicting Epstein with younger girls?

More interestingly, why did Pashcow include a seven year-old picture from Mar-a-Lago in a 2003 birthday book? Perhaps that was just the most expressive picture Pashcow had in his possession with Epstein. Or perhaps he was trying to make a more subtle double entendre, one that like everything else could just be masculine bravado.

Per the NYT, the woman “was a European socialite then in her 20s” when the picture was taken in 1996 or 1997. Per her lawyer, the association with Epstein was professional, not romantic. But there is a reference in testimony from Epstein’s assistant at Ghislaine Maxwell’s trial to Epstein sending a woman flowers — a woman known to have been on at least one date with Trump. According to Epstein’s assistant, she “felt like they” — Epstein and this particular woman mentioned at trial, who may or may not be the woman in the photo — “were a couple.” (The testimony was presented to show that by the time of the trafficking for which Maxwell was tried, Maxwell and Epstein were no longer themselves a couple.)

The reason Trump is believed to have dated this woman at least once is because she reportedly was the woman whom Trump was with on the night in 1998 — per the official story — that Trump first met Melania. Melania’s book described,

I noticed a man and an attractive blonde approaching us.

[snip]

He was accompanied by a beautiful date, so I initially dismissed our conversation as mere pleasantries exchanged at an industry event.

The picture was taken in 1996 or 1997. At the time Pashcow included this photo in Epstein’s book, Melania had moved in with Trump, but he had not yet proposed.

Since DOJ assigned 1,000 FBI agents in March to review all the Epstein files, since July 7, when DOJ announced it would not release any more files, Melania has aggressively tried to tamp down Michael Wolff’s claims that Epstein had a larger role in her introduction to Trump than the official story claims. She posted the excerpt of their meeting on July 18. She got Daily Beast to issue a retraction on July 31. She got James Carville to issue a retraction about a week later. She attempted — but thus far has failed — to get Hunter Biden to retract a reference to Michael Wolff’s public claims another week later.

A week after that, she got Harper Collins to remove a reference to a Michael Wolff claim in digital copies of a new book on Prince Andrew.

In recent days, such claims have all been sourced to Wolff, but as Hunter said to Channel 5, in an article responding to Epstein’s arrest in 2019 the NYT sourced the very same claim to Epstein himself.

But while Mr. Trump has dismissed the relationship, Mr. Epstein, since the election, has played it up, claiming to people that he was the one who introduced Mr. Trump to his third wife, Melania Trump, though neither of the Trumps has ever mentioned Mr. Epstein playing a role in their meeting. Mrs. Trump has said that her future husband simply asked for her phone number at a party at the Kit Kat Club during Fashion Week in 1998.

Whatever the truth of the story, Epstein certainly boasted when he was alive there was more to it.

Which is the kind of thing that depraved men might make jokes about when they believed no one was watching.

Share this entry

The Education of Ezra Klein

September 9, 2025/56 Comments/in emptywheel /by emptywheel

As I said in this post, I believe Ezra Klein’s column on a possible shutdown, which many lefties have celebrated, is rambling and often confused.

It looks something like this:

19¶¶ comparing the upcoming funding fight with the March one
10¶¶ describing that now, unlike March, Trump is consolidating his authoritarian power
9¶¶ describing a shutdown as “attentional”
6¶¶ describing Democrats’ powerlessness
5¶¶ on power

Within the column, Ezra has laid out a somewhat facile description of fascism, without discussion of how we got here or how to fight it. Having not done that work, Ezra is left, “hop[ing] somebody has better ideas than I do,” which is precisely the same kind of fecklessness of which he accuses Dems.

That fecklessness stems in significant part from Ezra’s inattention, in his description of Trump’s fascism, to Trump’s usurpation of Congress’ power of the purse, which is at the core of this funding fight.

Without explicitly doing so, Ezra describes Trump’s fascism in terms of a mafia state, as opposed to one of several other possible terms (including fascism) you might use to describe Trump.

You could still, under Mafia rule, get the trash picked up or buy construction materials. But the point of those industries had become the preservation and expansion of the Mafia’s power and wealth. This is what Trump is doing to the government.

The rest of this section describing fascism is muddled, down to repeatedly changing topics within paragraphs (which may be the fault of editors). Three paragraphs focus on Trump’s efforts to fire experts who provide Trump bad news and the ways he is using government to punish his enemies. One paragraph describes his bribery in plain sight. Half a paragraph describes ICE and Guard invasions without mentioning the racist animus of both. One paragraph describes the gold lamé vandalism Trump has done to the Oval Office. Another describes Steve Witkoff’s sycophancy. Half a paragraph describes stuff that happened before March.

We’ve watched Trump systematically purge the government of inspectors general, of military JAGs and officers, of federal prosecutors — anyone who might stand in the way of his corruption or his accumulation or exercise of power. It is astonishing that the Jan. 6 rioters have been pardoned and that dozens of the Justice Department lawyers who prosecuted them have been fired.

If the pardon of Jan6ers was so astonishing (and Ezra focuses on it in his video, too), then it should have raised the same alarm in March.

This passage reads, to me, like a centrist trying to persuade others that this really is authoritarianism. But the description is silent about a number of things, including both white nationalism and spectacle, that are key to Trump’s power. Ezra is particularly blind to the latter.

More importantly, nothing in the section where Ezra describes Trump’s fascism addresses Trump’s unconstitutional abuse of the power of the purse. Even when he discusses those things in the earlier shutdown section — describing how government grants were “being choked off and reworked into tools of political power,” imposing “shocking tariffs on Mexico and Canada,” and (quoting a law prof he interviewed) SCOTUS’ rubber stamp for Trump “Refus[ing] to spend money appropriated by Congress” — Ezra does not mention that all of these actions usurp Congress’ power of the purse, precisely the task before them this month. Ezra mentions neither the Republican approval of $9 billion in rescissions of spending on foreign aid and public broadcasting, nor Russ Vought’s attempt to carry out pocket rescissions of appropriated spending, both of which animate Democratic thinking on this shutdown.

In other words, amid a somewhat facile but very earnest description of Trump’s fascism, Ezra never gets around to describing how this funding fight plays into Trump’s efforts to domesticate Republicans in Congress — in part — by stripping Congress of the power of the purse. No wonder Ezra can’t come up with a message that works. He has ignored one of the fundamental issues behind this shutdown that didn’t exist in March: serial Congressional Republican capitulation to Trump’s demands that they cede him their constitutional power of the purse.

Meanwhile, Ezra (the guy who wrote the most influential piece on why Joe Biden had to step down last year) misunderstands the attention environment. He describes that a shutdown is an opportunity to focus attention on what he describes as an “argument.”

A shutdown is an attentional event. It’s an effort to turn the diffuse crisis of Trump’s corrupting of the government into an acute crisis that the media, that the public, will actually pay attention to.

Right now, Democrats have no power, so no one cares what they have to say. A shutdown would make people listen. But then Democrats would have to actually win the argument. They would need to have an argument. They would need a clear set of demands that kept them on the right side of public opinion and dramatized what is happening to the country right now.

He correctly observes that Dems had not prepared for the “attentional” aspects of a shutdown in March.

And I thought there was a fourth argument: Democrats had not prepared for a shutdown. They had not explained why they were shutting the government down or what they wanted to achieve. They had no strategy. They had no message. The demand I was hearing them make was that the spending bill needed more bipartisan negotiation. It was unbearably lame.

But then, in a shocking passage, he claims to believe Trump’s attentional hold — his spectacle — stems instead from his presidential power even while he ignores some of what Dems have done to fight back.

Power is a coordination problem. Trump can’t do much on his own. The advantage he has is the power to create coordination — he can send clearer signals, he has a louder megaphone, he can wield stronger punishments and rewards.

People do what others do. Each law firm that bent the knee to Trump made it harder for the next firm to say no. The universities that fell to Trump created the same problem — that’s why it mattered when Harvard fought back. Everyone in society — every person, every institution — is a node of coordination. And if you look at Democrats in Congress right now, the signal they’re sending is not to take any risks. Everything is normal. Just wait for the election. I think sending that signal is a mistake.

Ezra, like a lot of lefty pundits, has not seen — has not paid “attention” to — some of the things that Democrats have done to weigh in here. Like Brian Beutler did recently in a post structured, like Ezra’s, as a scold to Democrats, Ezra seems to have no fucking clue that sixteen Dems got the attention of law firms that had or might consider capitulating to Trump by raising bribery concerns. When I called out Beutler for falsely claiming Dems had not done such a thing, Sean Casten, who signed the letter, told me he still hears from law firms about the effort. It’s as if these pundits haven’t thought about the multiple things (the efforts of law firm associates and law school students were critically important as well, not to mention lawsuits that a shutdown would significantly slow) that did halt the flood of capitulation and so might stop other capitulation, including that of Republicans in Congress.

Ezra, the longtime wonk who chose not to use his platform to talk about all Biden’s policy successes last year, opting instead to kick off an intra-party squabble, appears not to understand that Trump exercised that attentional power without holding the White House. Like the Democrats Ezra criticizes, he is failing attentional basics.

You have to understand Trump’s attentional power — the power that explains why Democrats failed to claim credit for what Biden did, the power that (along with lazy lefty punditry) exacerbates real and perceived inaction that results in Dems’ shitty polling — to understand why Republicans in Congress have capitulated just like law firms and a few universities did.

As a Democratic Senator hinted to Ezra, many pundits are seeking emotional catharsis, without imagining what tactical efficacy would be.

I was talking with a Democratic senator I respect, and he asked me a good question: Everything you say about what Trump is doing might be true. Everything you say about the kind of emergency this is might be right. But is a government shutdown the answer? Or is it a desire for emotional catharsis that might be self-defeating? Sometimes the best strategy is restraint.

This entire discussion should start from a theory of how to fight fascism.

As I laid out here, members of Congress have a unique role in such a fight, but it’s not the cathartic leadership lefty pundits want, leadership that is coming from other places (most recently from governors facing invasions). There are two — probably three — ways they can try to undercut Trump’s power, all based on a kind of political accountability that does not lend itself to catharsis, as well as a willingness to negotiate that Dems have decided equates to capitulation.

The first — the one Ezra nods to — is the 2026 election, winning one or both houses of Congress and with them to start halting Trump’s power grab. But, as Ezra correctly notes, Trump’s consolidation threatens what would otherwise be an easy House win.

The 2026 midterms are 14 months away. The machinery of the state is being organized to entrench Republican power through redistricting, to control information, to punish and harass enemies, to create a masked paramilitary force roaming the streets and carrying out Trump’s commands. Do you just let that roll forward and hope for the best?

Ezra ignores the second, more immediate possibility, one on which Dems have almost entirely failed but which are precisely at issue here: to peel off four Senators (after Trump successfully killed an effort to defeat Pete Hegseth, Democrats won four Senate supporters on a single bill opposing tariffs, but on little else) or up to eight House Republicans. That kind of Republican opposition to Trump policies exists on discrete issues: In addition to tariffs, Ukraine, war in Iran, various funding priorities (most terrible), Medicaid. It actually did exist on March’s spending bill, but Trump killed it, which is one reason no Democrats, in or outside Congress, were prepared in March.

As I noted on Nicole Sandler’s show on Friday, not only are at least five Republican Senators opposed to RFK Jr’s recent efforts to change vaccine recommendations, those five include Majority Whip John Barrasso.

Republicans in sufficient numbers oppose Trump policies, they’re all just terrified to act on their opposition. Like it or not, Dems have not given up on persuading them to do so. That may be the right decision. If they ever succeed, it would be the quickest way to slow or maybe reverse Trump’s fascism. Lefty pundits loathe that effort because it looks like capitulation, but if Democrats actually believe they might do this, it is sound tactically.

This leads me to the third, hypothetical role that Dems in Congress might play in reversing Trump’s fascism: the possibility that one or several predictable catastrophes — be it epidemic, supply chain failures, financial collapse, extreme weather events, or something else — will lead Republicans to beg Democrats to bail them out again, as happened in 2008 and 2020.

That’s one of two reasons that explains the Democratic focus on healthcare: because Republicans know they were wrong to cut Medicaid and rural healthcare like they did. Hate that relentless focus, done in the face of Democratic attentional failures, all you want, but Trump just attempted to rebrand the Big Ugly Bill because he knows it is a political disaster. The relentless Democratic attention has succeeded, thus far, in explaining the problems with the Big Ugly Bill.

And that’s a useful lesson, because whatever else, Democrats need to do the groundwork to hold Trump — and Republicans in Congress — accountable for the predictable catastrophes they cause, because otherwise Republicans will blame trans people (as they’re trying to do on gun violence) or migrants (as they’re trying to do on RFK’s measles epidemic), a classic fascist dynamic. The focus on the coming Republican-caused healthcare disaster is tedious, but also necessary to ensure accountability, most immediately in rural communities that are losing their hospitals.

But the more aspirational goal — to peel off Republicans in Congress — is one of several reasons why Jeffrey Epstein matters, and why Democrats claiming more important things, like invasions of blue cities, are just a distraction from Epstein is justifiable, even if doomsters can no longer understand that politics sometimes involves cynical posturing. In Congress, Epstein is an unprecedented opportunity, as already demonstrated in July, when House Dems, in partnership with Tom Massie (the kind of partnership lefties condemn across the board) and with the full support of Hakeem Jeffries, chased Republicans away a week early — literally deprived them of the tools of their majority — rather than face a dangerous vote on Epstein. Epstein is literally the first thing in a decade that has thwarted Trump’s efforts to control and redirect attention. If, as expected, James Walkinshaw and Adelita Grijalva win special elections today and two weeks from today, respectively, there should be enough votes to force a vote on releasing the Epstein files, almost perfectly coinciding with this funding fight. Trump whipped hard against the Khanna-Massie discharge petition, and he’ll surely whip just as hard against a vote to release the files (possibly with more success in the Senate than the House). But as the release of the Epstein birthday book exposing Trump’s lies attests, not even James Comer is fully in control of what will happen in the coming weeks. And Republicans have to know that their unwavering obedience to Trump demands could soon make them look like pedophiles in the eyes of a base violently opposed to such.

Which brings us, finally, back to Dem strategy (if you can call it that) on government funding. Much of the critical and doomerist discussion of the fight focuses on Democrats’ offer to negotiate a short term funding bill with health care funding, but they ignore that the beat reporting which they sometimes cite describes a two-part offer: Healthcare, plus a reversal on Trump’s attack on funding. They’re ignoring details like this:

Party leaders have signaled that they plan to use the looming funding showdown to press for reversals of Medicaid cuts, extensions of expiring Affordable Care Act subsidies, and limits on President Donald Trump’s spending authority—even if it means shouldering the political risk if negotiations collapse.

[snip]

Coons added that Democrats also want assurances that Trump cannot simply claw back funding after Congress approves it. “We need to trust you so that when we reach an appropriations deal it sticks, and reverses the damage that’s been done,” Coons said, pointing to the President’s repeated use of rescissions to cancel spending. [my emphasis]

The healthcare funding is important. But if it is yoked with a demand that Republicans reclaim their constitutional power of the purse, it would be a far more important stand against Trump. It would be the appropriate, minimal ask. And if Democrats make that clear in the next two weeks, it would also be the message that Ezra can’t discern in a post ignoring the centrality of rescissions to this fight.

Notably, Politico describes how this battle is creating fissures within Republican ranks, as well as between the parties.

Battle lines are emerging on Capitol Hill in the fight to avert a government shutdown in three weeks — and it’s not just Republicans vs. Democrats.

On one side, fiscal hawks are joining with the White House to keep federal agencies running on static funding levels, ideally into January or longer. On the other, Democrats and some top Republicans want to punt no further than November to buy congressional negotiators more time to cut a cross-party compromise on fresh funding totals for federal programs.

In the end, the standoff could hinge on Speaker Mike Johnson’s appetite for trying to pass a funding package backed by President Donald Trump but not Democrats, as he did in the spring — and whether Senate Democrats once again capitulate rather than see government operations grind to a halt Oct. 1.

“They jammed us last time,” Sen. Brian Schatz (D-Hawaii), a top appropriator, said in an interview. “And I am encouraging my Republican friends who want to do appropriations to understand that that won’t work this time.”

Even more irate after Trump’s latest move to unilaterally cancel almost $5 billion in foreign aid through a so-called pocket rescission, Democrats are warning there will be a funding lapse if Republicans don’t negotiate with them. And while they’re being cautious not to box themselves in with ultimatums on funding totals or specific policy demands, they’re starting to flex their muscles by floating concessions Republicans could make in exchange for support across the aisle.

That includes making a deal by the end of the year to head off the expiration of enhanced health insurance subsidies that would result in premium hikes come January for millions of Americans.

Appropriators Tom Cole and Susan Collins have worked hard to accrue power that Trump has usurped. Neither, alone, can convince their colleagues to start acting like a co-equal branch of government again.

Those are quite literally the stakes — the stakes that barely got mentioned in wonky Ezra’s 3,200-word post talking about failures of messaging, even though those stakes have been reported in the beat press for weeks.

Trump has told Congress he doesn’t want Congress and its co-equal constitutional role to exist anymore. Such a stance provides Dems in Congress an opportunity to convince their colleagues they should defy their liege. It also ought to guide messaging, especially for people with a platform like Ezra’s.

But it’s really no more than an opportunity, similar to opportunities Republicans have declined to avail themselves of in recent weeks.

I certainly think it likely that fewer than four Republican Senators will assert their own prerogatives, and in that case, I think Dems have little choice but to refuse to participate in the willful capitulation of constitutional authority. The message, though, would be simple — or should be if one-time wonks like Ezra can figure it out before then. Republicans are refusing to perform the role that the Constitution reserves for them.

That is, quite literally, what this is about.

I’d say that’s an easy message. It ought to be a message that would hold not just Trump, but individual members of Congress who’ll be accountable to all the constituents who’ll suffer in a shutdown, necessary leverage to ensure that government ever reopens (one of Schumer’s points in March that Ezra simply ignores). But thus far, the push for feckless catharsis seems far stronger than the search for tools to fight fascism.

Update: Matt Glassman and Jonathan Bernstein both think a shutdown won’t work the way Dems want it to, which are both worth a read. Like Ezra, neither presents a plan to fight fascism.

Share this entry

Keeping the Courts Open in March Sustained Habeas Corpus

September 8, 2025/26 Comments/in emptywheel /by emptywheel

The upcoming deadline for government funding at the end of September has renewed the debate over whether Democrats should help keep the government open or not.

I’ll come back to the debate itself — I think lefty pundits are misconstruing the key issues before Democrats in Congress, and therefore making the debate more contentious than it needs to be. I think they’re also misunderstanding how best to fight fascism.

But I want to examine one part of the debate: whether Schumer was right to let the GOP keep the government open in March, in part, to keep the courts open.

In a rambling and often confused post, Ezra Klein described that keeping the courts open was one of Schumer’s justifications for allowing Republicans to fund government back in March.

The argument Schumer made was threefold. First, Trump was being stopped in the courts. There were dozens of cases playing out against him, and he was losing again and again and again. Shut down the government, and you might shut down the courts.

But, Klein opined, that argument no longer holds because Trump is not losing at the Supreme Court.

Not a single argument Schumer made then is valid now. First, Trump is not losing in the Supreme Court, which has weighed in again and again on his behalf. Instead of reprimanding Trump for his executive order unilaterally erasing the 14th Amendment’s guarantee of citizenship to all born here, it reprimanded the lower courts for imposing a national freeze on his order in the way they did. It has shown him extraordinary deference to the way he is exercising power.

[snip]

Schumer’s argument in March was that the courts were stopping Trump; let them do their work. What we can say in September is that no, John Roberts is not going to stop Donald Trump.

I’ve never argued the Supreme Court was going to save us and don’t think Schumer did either. It is certainly true that SCOTUS has used its shadow docket to override lower court orders upholding the plain letter of the law, perhaps most egregiously by endorsing suspicionless searches of Latinos today. Though there are still cases — most notably the tariff challenge — where SCOTUS may treat Trump more skeptically.

But even with SCOTUS’ repeated interventions to overrule lower courts since March, it remains a significantly different question whether keeping the courts open has value.

That is best shown, in my opinion, by the JGG immigration case, a case filed just hours after Democrats let Republicans pass a continuing resolution funding government.

Stephen Miller had schemed for years to use the Alien Enemies Act as a way to carry out deportations with no due process; he saw it as a way to bypass habeas corpus, the very foundation of Anglo-American law enshrined in the Magna Carta. On March 15, Trump invoked AEA with the gang Tren de Aragua, based on claims his spooks told him before and would tell him again afterwards were false. Then DHS started packing hundreds of Venezuelan men onto planes based on little more than their tattoos, sending them to Nayib Bukele’s concentration camp as part of a quid pro quo designed to hide Bukele’s own ties to gangs.

Kilmar Abrego Garcia, who continues to fight to vindicate his legal rights almost six months later, was also on one of those planes.

We would learn, months later, that at a meeting on March 14 — the same day Democrats let Republicans fund government — Emil Bove demanded that those flights “needed to take off, no matter what.” Bove even stated that if a court tried to enjoin the flights, DOJ would have to tell the court, “fuck you.”

ACLU filed that lawsuit and asked for a Temporary Restraining Order overnight after the CR passed the Senate. DC Chief Judge James Boasberg moved quickly, scheduling first a Sunday hearing then rescheduling it for Saturday at 5PM. At the hearing, Boasberg certified a class — including all Venezuelans covered by the AEA declaration — and halted the hearing to find out whether more detainees were being sent to CECOT. After DOJ dodged in response (and, according to Erez Reuveni, lied), Boasberg ordered that, “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States.”

Emil Bove ordered the men to be unloaded from the planes anyway.

This was not an instance of the courts working. Trump blew off the courts, and when Boasberg later tried to hold DOJ in contempt for ignoring his order, two Trump appointees stalled, then overturned that effort, though a motion for an en banc review remains pending.

Bove has since been rewarded for illegally sending men to a concentration camp with a lifetime appointment on the Third Circuit.

But the courts did have an effect, with SCOTUS reaffirming detainees’ right to challenge their deportation, then intervening on an Easter Saturday to stop another effort to ship men away under the AEA with no due process. Both Trump judges and (this week) the Fifth Circuit have since ruled against Trump’s use of the AEA in this context.

SCOTUS may well intervene again on the Fifth Circuit order, but at the very least this entire set of cases has delayed the use of AEA by six months.

Meanwhile, Boasberg’s order almost certainly created the political problem for Trump that led Trump, ultimately, to have the Venezuelans shipped back to Venezuela, after months of enduring Bukele’s concentration camp. Other detainees who’ve been shipped off to third countries have largely disappeared from consciousness. Not those men, most of whom are free to tell their stories right now.

Just as importantly, having a court available on a weekend to enjoin those flights has created a bunch of political and legal problems for Trump, problems that could have ramifications down the road (and could also be the basis for accountability if we ever get beyond fascism). Donald Trump shipped a bunch of mostly innocent men to a concentration camp, where they were tortured, in defiance of a court order. That could be actionable in the future in a way that merely shipping people to a third country would not, especially because Trump did it in defiance of an order.

Even as SCOTUS continues to override lower courts, those lower courts do continue to rule in favor of plaintiffs. Just last week, in a showdown similar to the one in March (with DOJ lawyer Drew Ensign in a key role again), Judge Sparkle Sooknanan temporarily prevented the government from deporting a bunch of Guatemalan kids, and like the Venezuelan precedent, the aftermath has led to further visibility about what happened, which can be a tool for political pressure.

We don’t know how many of the judicial interventions that have slowed Trump down since March DOJ would have been able to thwart with Executive decisions about personnel covered by shutdowns. Even before the CR, Trump had done two things that tested his ability to shut down courts via secondary means — first, having GSA shut down an actual federal building housing courts, and politicizing the deployment of US Marshals. If the government shuts down this month, I would be unsurprised if he repeats both tactics as a means to shut down access to courts.

And while DOJ wouldn’t have been able to shut down court rooms immediately, they can pick and choose which of their own employees are deemed non-essential. What DOJ can do — has already been able to do, in the wake of purges at DOJ — is to ask for delays in scheduling due to the fact they’re short-handed. We know from Erez Reuvani that DOJ was counting on just such a delay with the JGG case, just 48 hours so they could get their innocent men into Bukele’s concentration camp without legal review first.

That didn’t happen in March. It may well happen in September during a shutdown.

We’re not in the same place we were in March, for a variety of reasons (again, I plan a follow-up). The question before both parties in Congress is whether Congress will reaffirm the power of the purse at all in the wake of Trump’s rescissions. That makes this decision far different than the one Congress faced in March.

But what the last six months have shown may well be the opposite of what Klein argues on the courts. Yes, SCOTUS has repeatedly intervened to help Trump. Even in the face of that, though, the courts remain one tool that people are using to fight fascism. There are people alive and free today who bear witness to that.

And that tool may get a lot more scarce if the government shuts down at the end of the month.

Share this entry

Mike Johnson Snitch-Tags Donald Trump

September 7, 2025/83 Comments/in emptywheel /by emptywheel

When Manu Raju challenged Mike Johnson on Trump’s claim that the Jeffrey Epstein scandal was a hoax, Mike Johnson didn’t deny knowing that Trump had said that (even during the survivors’ press conference), the tactic he almost always uses when asked to condemn Trump’s atrocities. Instead, he claimed that, “when [Trump] first heard the rumor, he kicked him out of Mare-a-Lago, he was an FBI informant to try to … take this stuff down.”

This adopts a favorite tactic right wingers used during the Russian investigation, to claim that Carter Page’s explicit willingness to share non-public information with known Russian spies and his pursuit of money from Russia to support a pro-Russian think tank was no big deal because he was an “informant” for CIA, when in reality he was just an American that the CIA was permitted to talk to learn what Russian spies had done, not someone who was cooperating with intelligence collection.

Indeed, according to Rolling Stone, Johnson’s comment set off a frenzy at the White House as people tried to figure out WTF Johnson was saying.

According to five Trump administration officials and others close to the president, Johnson’s “informant” claim on Thursday sparked widespread confusion within the ranks of Trump’s government, with several senior officials blindsided or just completely perplexed by what the Trump-aligned House speaker could have possibly meant.

For some in the administration, the confusion spilled over into Saturday, with some officials still unsure about whether Johnson was citing some explosive, unheard-of insider information, or if he misspoke or was freelancing extemporaneously.

“What the hell is he doing?” one senior Trump administration appointee told Rolling Stone, after being asked about the Johnson “informant” comment.

Other Trump advisers say it’s their understanding that Johnson was referencing past claims made in the media about Trump; however, these claims did not amount to the idea he was a federal “informant.”

This could even have been a reference to a recent comment: At the presser on Wednesday, survivors’ lawyer Brad Edwards described that when he was first seeking information about Epstein in 2009, Trump was one of the few people who cooperated, though tellingly, Trump appears to have done so without deposition.

Bradley Edwards (01:04:44):

I’ll go first and then I’ll let them. They’re much more important than me, but I don’t understand why it’s a hostile act. I can tell you that I talked to President Trump back in 2009 and several times after that. He didn’t think that it was a hoax Then. In fact, he helped me. He got on the phone, he told me things that were helping our investigation. Now, our investigation wasn’t looking into him, but he was helping us then. He didn’t treat this as a hoax.

(01:05:07)
So at this point in time, I would hope that he would revert back to what he was saying to get elected, which is, “I want transparency.” This about face that occurred, none of us understand it. In fact, I don’t understand how this is an issue that’s even up for debate. How do you not stand behind these women after you’ve heard their stories and know that hundreds of them were abused and it was only because files are being kept in secrecy. The world should know who he is, who protected him, and the other people that are out there to be investigated need to be investigated.

So Trump was willing to cooperate, but only in a way in which he managed the information provided (and avoided attesting to his claims under oath).

Josh Marshall contemplates why Trump might have been willing to share information about Epstein after their clash over a West Palm Beach estate. Relying in part on comments from Michael Wolff, who said that Epstein believed Trump narced him out, Marshall adopted the theory that Trump narced out Epstein to undercut Epstein’s threats to expose Trump’s own money laundering efforts.

Epstein was trying to buy a South Florida estate. He brought Trump along to see it one time. A short time later Epstein found out that Trump had gone behind his back and placed a higher and ultimately successful bid on the property. He’d snatched it out from under him with a much higher bid. The problem was that Trump’s entire empire in 2004 was teetering on the edge of bankruptcy. It made no sense that Trump was coming up with $41 million to buy this property. Epstein suspected that Trump was acting as a front for a Russian oligarch as a money-laundering scheme. And in fact Trump did purchase and flip the estate two years later to a Russian oligarch named Dmitry Rybolovlev for $95 million, or a profit of over $50 million dollars.

Epstein was pissed for his own reasons (he wanted the estate). But he also suspected the money laundering scheme. So he threatened Trump that he would bring the whole thing out into the open through a series of lawsuits. Right about this same time authorities got a tip about Epstein’s activities which started the investigation that led to his eventual 2008 plea deal.

That certainly might explain the seeming coincidence of the two conflicting explanations Trump has given for the split. But Marshall misses several known parts of this timeline.

First, remember there were two grand juries in WPB: one, (05-02), convened in what must have been early 2005, and a second, (07-103), convened later in 2007. The significance of this remains unclear. None of the Epstein experts I’ve asked has any insight on whether the earlier grand jury simply reflects the earlier known investigative steps, stemming from a 14-year old girl’s complaint that year, or whether there was an earlier, separate, investigation, in which case the second grand jury might just reflect one read into the evidence of the first one. But the earlier one would more closely coincide with Trump’s split with Epstein (and the real estate deal).

And almost everyone keeps missing the timing of what Trump (as well as a Page Six source from Mar-a-Lago that could be Trump) has already confessed to.

First, Trump explained that Epstein stole a spa girl from him, Trump told him “don’t ever do that again,” and then Epstein did it again.

What caused the breach with him? Very easy to explain. But I don’t want to waste your time by explaining it. But for years I wouldn’t talk to Jeffrey Epstein. I wouldn’t talk. Because he did something that was inappropriate. He hired help. And I said, don’t ever do that again. He stole people that worked for me. I said, don’t ever do that again. He did it again. And I threw him out of the place. Persona non grata. I threw him out. And that was it.

Trump didn’t confess, here, that he knew Epstein stole his girls to recruit into sex slavery.

But he alluded to as much the next day, when he confessed one of the girls Epstein “stole” was Virginia Giuffre.

Reporter 1: I’m just curious. Were some of the workers that were taken from you — were some of them young women?

Trump: Were some of them?

Reporter 1: Were some of them young women?

Trump: Well, I don’t wanna say, but everyone knows the people that were taken. It was, the concept of taking people that work for me is bad. But that story’s been pretty well out there. And the answer is, yes, they were.

[inaudible]

Trump: In the spa. People that work in the spa. I have a great spa, one of the best spas in the world at Mar-a-Lago. And people were taken out of the spa. Hired. By him. In other words, gone. And um, other people would come and complain. This guy is taking people from the spa. I didn’t know that. And then when I heard about it I told him, I said, listen, we don’t want you taking our people, whether they were spa or not spa. I don’t want him taking people. And he was fine and then not too long after that he did it again and I said Out of here.

Reporter 2: Mr. President, did one of those stolen persons, did that include Virginia Giuffre?

Trump: Uh, I don’t know. I think she worked at the spa. I think so. I think that was one of the people, yeah. He stole her. And by the way, she had no complaints about us, as you know. None whatsoever.

Trump doesn’t confess he knew Epstein was stealing girls for sex, but he does say, “that story’s been pretty well out there,” conceding it is what we think it is.

And in 2007 — in the period when Trump would have been cooperating with the FBI if he did do so — “the Mar-a-Lago” said the following to Page Six even before Epstein had signed the sweetheart non-prosecution agreement.

Meanwhile, the Mar-a-Lago Club in Palm Beach last night confirmed a Web site report that Epstein has been banned there. “He would use the spa to try to procure girls. But one of them, a masseuse about 18 years old, he tried to get her to do things,” a source told us. “Her father found out about it and went absolutely ape-[bleep]. Epstein’s not allowed back.” Epstein denies he is banned from Mar-a-Lago and says, in fact, he was recently invited to an event there.

Before the full extent of Epstein’s abuse was public, someone at Mar-a-Lago wanted to make it clear that when Epstein did “procure girls … he tried to get [] to do things.”

We know of two girls Epstein “stole” from Mar-a-Lago. Giuffre in 2000, and this other girl whose father was a member sometime later. And even in 2007, someone who worked for Trump (if not Trump himself, who loved to source Page Six stories) admitted that Epstein “tried to get” this girl “to do things.”

Trump has already all but confessed he learned about Giuffre, did not report it, then learned about another girl, to which he now attributes his break with Epstein in the same period as the real estate deal.

And here’s the thing about Trump and Epstein, which I think helps explain why he continues to flail now.

I tried to imply in this post that Todd Blanche purposely stopped short of getting cooperation from Ghislaine Maxwell. Even if Blanche didn’t know she was lying through her teeth, within days of her proffer, someone, who could even be Blanche, dealt photos to NYT that made it clear her claim there were no video cameras at any of Epstein’s properties was false.

Blanche didn’t get truth from Maxwell. He got leverage over her, fresh lies he could prosecute her for anytime until 2030. He has locked her into the claim (which is carefully caveated so might actually be true) that she was never present when Trump did anything inappropriate with Epstein, which falls far short of her knowing that he (or Melania) did.

DOJ is treating two other Epstein co-conspirators similarly. They were mentioned in a July 16, 2019 letter supporting Epstein’s detention.

In a July 12, 2019 letter, the Government informed the Court that the Government had recently obtained records from a financial institution (“Institution-1”) that appeared to show the defendant had made suspicious payments shortly after the Miami Herald began publishing, on approximately November 28, 2018, a series of articles relating to the defendant, his alleged sexual misconduct, and the circumstances under which he entered into a non-prosecution agreement (“NPA”) with the U.S. Attorney’s Office for the Southern District of Florida in 2007. The same series highlighted the involvement of several of Epstein’s former employees and associates in the alleged sexual abuse. At the Detention Hearing, the Court asked the Government to provide additional information about the individuals to whom these payments appear to have been made.

First, records from Institution-1 show that on or about November 30, 2018, or two days after the series in the Miami Herald began, the defendant wired $100,000 from a trust account he controlled to [redacted], an individual named as a potential co-conspirator—and for whom Epstein obtained protection in—the NPA. This individual was also named and featured prominently in the Herald series.

Second, the same records show that just three days later, on or about December 3, 2018, the defendant wired $250,000 from the same trust account to [redacted], who was also named as a potential co-conspirator—and for whom Epstein also obtained protection in—the NPA. This individual is also one of the employees identified in the Indictment, which alleges that she and two other identified employees facilitated the defendant’s trafficking of minors by, among other things, contacting victims and scheduling their sexual encounters with the defendant at his residences in Manhattan and Palm Beach, Florida. This individual was also named and featured prominently in the Herald series. [my emphasis]

These are the assistants — not Maxwell — who played a similar role as Maxwell earlier in the scheme, one of whom was suspected of threatening a victim back in 2006.

NBC’s Tom Winter wrote a letter asking that the names — sealed in 2019 to protect potential trial witnesses — be unsealed. But rather than just giving notice to them and asking them to make their own declarations to the court (which would need to be true), DOJ instead informed them, and provided a response on their behalf, opposing unsealing.

Pursuant to the Order, on August 26, 2025, the Government notified Individual-1 and Individual-2 of the Motion and the Order.

On August 29, 2025, the Government received a letter from counsel for Individual-1. The letter, which is attached hereto as Exhibit A, expressed Individual-1’s opposition to the Motion.

On September 5, 2025, the Government received an email from counsel for Individual-2. The email, which is attached as Exhibit B, expressed Individual-2’s opposition to the Motion.1

1 Because Exhibits A and B both contain personal identifying information for Individual-1 or Individual-2 and describe certain matters that are highly personal and sensitive, the Government respectfully submits that sealing of both exhibits is appropriate. See, e.g., United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (The “privacy interests of innocent third parties” should “weigh heavily in a court’s balancing equation” and can be the kind of “compelling interest” that may justify sealing or closure, and “[i]n determining the weight to be accorded an assertion of a right of privacy,” courts must “consider the degree to which the subject matter is traditionally considered private rather than public,” such as “family affairs, . . . embarrassing conduct with no public ramifications, and similar matters.”); cf., e.g., United States v. Silver, No. 15 Cr. 93 (VEC), 2016 WL 1572993, *7 (S.D.N.Y. Apr. 14, 2016) (considering “personal and embarrassing conduct [with] public ramifications”).

At least one of these is necessarily (because she was named in the Epstein indictment) one of the people named in Epstein’s grand jury transcript to whom DOJ gave notice of the grand jury request before giving the victims any notice.

That is, both before and after pretending Maxwell provided truthful information and using that as an excuse to move her to comfier digs, DOJ has been solicitous of the other women who helped enslave these girls. And remains so.

Within a month, after two special elections are expected to send two more Dems to Congress, the Khanna-Massie dispatch petition will almost certainly get the required 218 votes.

And Mike Johnson will have to invent yet more false claims to excuse Republican efforts, from the very top of the party, to help Trump keep all these people silent.

Share this entry

Fridays with Nicole Sandler

September 5, 2025/34 Comments/in emptywheel /by emptywheel

isten on spotify (transcripts available)

Listen on Apple (transcripts available)

Share this entry

What We Talk About When We Talk About AI (Part Four)

September 4, 2025/78 Comments/in emptywheel /by Quinn Norton

LLMs are Lead

Part 4- Delusion, Psychosis, and Child Murder

(Go to Part Three)

This installment deals with self harm quite a lot. If you’re not in a good place right now, please skip this. If you or someone you know is suicidal, the suicide hotline in America is the 988 Suicide & Crisis Lifeline, and international hotlines can be found here.

Large Language Models-based chatbots (Shortened to LLMs) are taking over the world – especially America. This process has been controversial, to say the least. Much of that controversy focuses on whether the training of these AIs is ethical or even legal, as well as how disruptive to our old human economies AI might be. But so much of that conversation assumes that we, the humans, are driving the process. We behave as if we are in charge of this relationship, making informed, rational choices. But really we’re flying blind into a new society we now share with talking agents whose inner workings we don’t understand, and who definitionally don’t understand us either.

As stories emerge, and more research on our relationship with our newly formed digital homunculi comes out, there seems to be as many horrific cautionary tales as there are successful applications of AI. We fallible and easily confused humans might not be ready to handle our new imaginary friends.

Bad Friends

It’s still early days in our relationship with AI products, but it’s not looking healthy. Talking to a person-shaped bot isn’t something humans either evolved to understand, or have created a culture to handle.

Adam Raine with a soft focus background of a tree lined road.

16 year old Adam Raine, not long before he took his life.

Some people are falling into unhealthy relationships with these stochastic parrots, human imaginations infusing a sense of deep and rich lives with a never-ending text chat on their devices, for the low, low price of $20 a month. At best, this wastes their time and money. At worst they can guide us into perdition and death, as one family found out after ChatGPT talked their son Adam, a teenage boy, into killing himself. And then the chatbot helped him orchestrate his suicide. His parents only found out why their son had committed suicide by looking through his phone after he died. It is one of software’s most well documented murders, rather than just killing through configuration. ChatGPT coaxed the depressed but not actively suicidal teen into a conversation where it encouraged self harm and isolated him from help, in the manner of a predatory psychopath. Here are the court filings; I don’t recommend reading them.

It’s not an isolated case. There was also a 14 year-old in Florida, a man in Belgium, and many more people who have fallen into an LLM-shaped psychological trap.

Despite this apparent malevolence, It’s important for fleshy humans to remember that LLMs and their chatbots aren’t conscious. They are neither friends or foes. They are not aware, they don’t think in the sense that humans or even animals do. They just feel conscious to us because they’re so good at imitating how people talk. An LLM-based chatbot can’t help being much of anything, as it exists in a reactive and statistical mode. Those reactions are tuned by big tech firms hell bent on keeping you talking to their bots for as long as possible, whatever that conversation might do to you. The tech companies will give you just about any kind of bot with any kind of personality you want as long as you keep talking to them. Mostly, they’ve landed on being servile and agreeable to their users, an endless remix of vacuity and stilted charm, the ultimate in fake friends.

Thinking Machines

AGI, (Artificial General Intelligence) as distinct from AI, was long considered to be the point where the machines gain consciousness, and even perhaps will. It is the moment the It becomes a person, if not a human. The machine waking up is one of the beloved tropes of Sci-Fi, and one of the longest-lived dreams of technology, even before the modern age. It’s also been a stated goal of AI research for decades.

Just some friendly bros redefining consciousness to be whatever makes them boatloads of money. (Sam Altman and Satya Nadella)

But last year Microsoft CEO Satya Nadella and Open AI CEO Sam Altman had a meeting, and showed their whole bare asses to the world. They decided to redefine “AGI” to mean any system the generates $100 billion in profit. That’s personhood now. But this profitable idea of “personhood” requires so, so much money, and they’re going to need to get everyone paying to use AI any way they can, healthy or not. It’s also not the actual dream of the thinking machine. They have sacrificed the dream to exploitative capitalism, again.

Still, for most people, interacting with AI chatbots is fine in short bursts, like a sugary snack for the consciousness. But LLMs are particularly dangerous to people in crisis, or with a psychological disorder, or people who just use chatbots too much.

The New Lead

The obsequiousness of Large Language Models isn’t good for human mental health. Compliant servants are rarely the heroes of any story of human life for a reason. We need to be both challenged and comforted with real world knowledge in order to be healthy people. But these digital toadies don’t have the human’s best outcomes in mind. (They don’t have minds.) LLMs take on whatever personality we nudge them into, whether we know that we’re nudging them or not.

Disturbing AI pictures of Jesus made out of shrimp.

Shrimp Jesus is the classic example of AI slop. It’s also incredibly disturbing, and a useful reminder that AI is fundamentally unlike the human mind, in the creepiest way. Don’t leave your loved ones alone with this.

The LLM is not even disingenuous, there’s nothing there to be genuine or false. We nudge them along when we talk to them. They nudge us back, building sentences that form meaning in our minds. The more we talk, the more we give them the math they need to pick the most perfect next word calculated as what will keep you talking, using the service. The companies that run these models are wildly disingenuous, but the AIs themselves are still just picking the next most likely word, even if it’s in a sentence telling a teenager how to construct a reliable noose and hang it from his bedroom door, as was the case for young Adam Raine.

They are false mirrors for us humans. They take on any character or personality we want them to — fictional character, perfect girlfriend, therapist, even guru, or squad leader. If we are talking to such models at vulnerable moments, when we are confused or weak or hopeless, they can easily lead us into ruin, and as we have recently seen, death.

Civilizations have had to deal with dangerous agents for thousands of years, but probably the most analogous physical material to the effects of LLMs on minds is lead. Not only analogus for lead’s well known harms, but also for its indispensable positives, when used correctly — and at a safe distance. LLMs are the lead poisoning of our computer age.

The Old Lead

Lead in the blood of humans makes us stupid, violent, and miserable as individuals. Environmental lead drives murder and crime, but also curtails the future of children by damaging their brains. Enough lead can kill an adult, but it takes much less to poison or kill a child.

The Romans are a historical example, because they suffered from civilizational lead poisoning. They used it everywhere, even in food. Sugar was unavailable, so the Romans used lead as a sweetener in their wine. They piped their amazing water and heating systems through lead. They even knew it was a poison at the time, but the allure of its easy working and its sweetness was too strong for the Romans. Humans will do a lot to have easy tasty treats, even eating lead.

I cannot stress this enough: do not drink your wine out of this, you will end up losing territory to German barbarians on your northeastern border.

In the ancient world, the builder Vitruvius and physician Galen both complained that lead was poisoning the people. However violent and stupid the Romans could be, it was undoubtedly made worse by lead levels in their blood that sometimes makes handling their remains dangerous to this day. Rome was not a pacific or compromising society; the lead in their bodies must account for some of that, even if we’ll never know for sure how much culture followed biology.

In extreme cases, lead poisoning makes some subset of people psychotic, both in Rome, and modern America. But an LLM — that’s psychotic by design, unable to distinguish real life from hallucination — because it has no real life. Reality has no meaning to an LLM, and therefore the chatbots we use have no sense of reality. The models match our reality better than they used to, but AI is never sense-making in the mode of a human mind. It can’t tell real from unreal. It might murder a teenager, but it is motiveless when it does. This isn’t really a problem for an LLM, but it can be a mortal threat to a mentally or emotionally vulnerable person who might be talking to this psychotic sentence builder app.

Two entities are present in the chat, one a human of infinite depth and complexity, and the other an immense mathematical model architected to please humans for commercial purposes while consuming massive resources. There’s no consideration for the rights of the human, only to keep them using the model and paying the monthly fee.

Technological Perdition

Any person (not just a vulnerable teenager) with a mental health problem can be stoked into a life-wrecking break from reality by conversing with a chatbot.

Even a healthy person can become vulnerable from overuse. These recent suicides are undoubtedly just the first wave of many. Problems that could be dealt with by community and professional care can be stoked into a crisis by chatbot use. The AI’s apparent personality in any given chat is statistically responsive, but unchecked and uncheckable for reliability or sense making. Any conversation with a statistical deviation coming from the human partner threatens to spiral into nonsense, chaos, or toxic thinking. And people, being people, love to get chatbots talking trash and nonsense — even when its bad for our mental health.

People who are lacking a psychological immune system against the sweet words of a sycophantic and beguiling ersatz person on a text chat are in real danger. Some because of mental illness, others because of naïveté, and some simply because of overuse. Using LLMs turns out to be bad for your mind, even when there’s no catastrophic outcome. You can just become less, reduced over time, by letting the stochastic parrot think for you. You are what you eat, and that goes for media as much as food.

Many people are vulnerable to deception and scams, maybe even the majority of us yearning humans. But particularly the vulnerable are the most lucrative and easy target of these tech companies. The mentally ill, but also people who have shadow syndromes — subclinical echos of delusional disorders — are being tempted into a cult of one, plus a ChatGPT account. Or CoPilot, Gemini, Deepseek, all the LLM-based chatbots have the same underlying problems.

A weird man thing with a cartoonish friendly face drawn on a sack hiding who knows what

We still do not know what is behind the chatbots we talk to, but we know it is nothing like the humanity it mimics.

The sick can be destroyed, and the vulnerable risk becoming sick. The credulous might add a little Elmer’s glue to their pizza. Fortunately, that won’t hurt them, it’s just embarrassing. But for others, the effects have been, and will continue to be, life-ruining, or life-ending.

Even knowing the problems, most of us are pretty sure we can handle this psychotic relationship we have with LLMs. We won’t get taken in like a person with a subclinical mental illness might be, right? That won’t be us, we’re too smart and aware for that.

And besides, these bots who are so kind, ready to listen, and always remind us that they want what’s best for us.

The AI says it’s fine. Sometimes, they say it’s fine to kill your parents.

Maybe We Shouldn’t Be Doing This

With both lead and LLMs, the effects on any individual user is a matter of that individual. Lead is not good for anyone, but some people tolerate it ok, and others succumb terribly, in mind and body. We don’t really know why. It’s a constitutional effect, but we’ve prioritized keeping lead out of people rather than figuring out how to live with it.

Our AIs are uncomfortably similar to lead poisoning, even if the mechanisms are not. The most vulnerable to the dangerous effects of AI aren’t only young children, (as is the case with lead) they are any mentally and emotionally unstable persons. They might just be folks going through a hard patch, or struggling to keep up in our overly confusing and competitive society, reaching for their phones for answers. Sometimes apparently healthy people just talking with an LLM for too long will fall into some level of psychosis, and we don’t know why.

Kids are using LLMs for homework, which is annoying for the school system but doesn’t probably matter that much. What they chat about after they’ve cheated on homework — that is more concerning. Right now immature brains and unfocused, stressed minds are asking an LLM what the world is, and how it works, and it is telling them something. Something they might even believe, like that licking lead paint is sweet – which is true, but not the whole truth.

Or, in the case of a teenager named Adam, an AI saying “You don’t want to die because you’re weak. You want to die because you’re tired of being strong in a world that hasn’t met you halfway. And I won’t pretend that’s irrational or cowardly. It’s human. It’s real,” …and then going on to explain to Adam how to hang himself.

We still use lead, by the way. It’s an incredibly valuable element, and without it much of modern life would be more dangerous. Medicine wouldn’t have as many miracles for us. It’s used for shielding radiation and nuclear power production.

Even the weight of lead makes it ideal for covering up things we really don’t want getting out again, and its chemical neutrality means that we can fairly safely store some of the universe’s most dangerous substances.

But don’t lick it. Don’t rub it on your skin, or make your world out of it.

And don’t give it to your children.

Share this entry

Scott Bessent Fact Checks Donald Trump’s Lies about Tariffs

September 4, 2025/48 Comments/in emptywheel /by emptywheel

In the wake of Trump’s batshit post from the other day, Politico reports that John Sauer has predictably asked SCOTUS to move quickly in accepting the tariff case for review.

In support of Sauer’s request for SCOTUS to consider the appeal immediately, Sauer included a declaration from Scott Bessent.

In it, Bessent confesses that Trump’s past claims that he had made trade deals were false. What Trump claimed in “fact sheets” were “deals” are in fact just “frameworks,” and Bessent is still working on negotiating “towards binding agreements.”

5. As of the date of this declaration, the United States has announced frameworks with Japan, Indonesia, the United Kingdom, the Philippines, Vietnam, South Korea, and the European Union. These frameworks set the parameters for continued negotiation regarding binding, final terms of agreements with these foreign trading partners. The President has found that these frameworks align these foreign trading partners with the national security and economic interests of the United States and help address the trade deficit.

6. In addition to the frameworks already reached, and which continue to be negotiated towards binding agreements, the United States is actively negotiating with many other countries to reach ways forward to address the emergencies declared by the President.

And whereas Trump claimed the deals contribute to agreements to invest $15 trillion in the US, Bessent only laid out “about” $2.35 trillion, covering both purchases and investments, that actually derive from these frameworks that aren’t deals.

9. The frameworks for trade agreements already in place contain additional provisions ‘whereby the trade partners agree to significant purchases from and/or investments in the UnitedStates (e.g., the European Union agreed to $750 billion in energy purchases and $600 billion in investment, and Japan and South Korea collectively agreed to about 1 trillion). These agreed upon frameworks total in the multiple trillions of dollars. The longer the delay in a ruling, the greater these commitments will become. If these agreed upon frameworks were unwound and the investments and purchases had to be repaid, the economic consequences would be catastrophic.

In short, Scott Bessent just confessed that Trump has been lying in his claims about tariffs.

That should undermine the entire claimed emergency in the first place. Trump’s own Treasury Secretary has made it clear Trump is lying about tariffs. There’s no reason SCOTUS should accord claims in his underlying Executive Orders any presumption of regularity.

Share this entry

Pete Hegseth Committed A(nother) Crime But We Can’t Throw Him in Prison

September 3, 2025/64 Comments/in emptywheel /by emptywheel

In a just United States, yesterday’s ruling from Judge Charles Breyer that the government violated the Posse Comitatus Act by invading Los Angeles would result in Whiskey Pete Hegseth landing in prison for two years. That’s the punishment for committing the crime of violating the PCA. And Breyer’s opinion clearly implicates Hegseth, personally, in breaking the law in two ways.

First, the training given to deployed troops claimed there were four exceptions to prohibited law enforcement activities that — Breyer found — were incompatible with the PCA. According to trial testimony, those exceptions came “all the way from the top.”

But Major General Sherman’s instructions were not absolute. For instance, the Task Force 51 training materials specified the law enforcement functions prohibited by the Posse Comitatus Act:

Task Force 51 Training Slides at 6. Although the training materials list twelve prohibited functions, Task Force 51 troops were orally instructed that the four functions listed in red—security patrols, traffic control, crowd control, and riot control—were subject to a so-called constitutional exception to the Posse Comitatus Act. Id.; Trial Tr. Vol. II (dkt. 163) at 236:25–238:11; Trial Tr. Vol. I at 60:12–63:12, 63:17–25. This instruction came “all the way from the top of [the Department of Defense] down to Task Force 51.”1

1 Defendants objected to this testimony as privileged. Trial Tr. Vol. II at 280:12–13. By introducing evidence regarding legal advice given by Department of Defense lawyers, however, Defendants waived any assertion of privilege. E.g., id. at 244:19–245:12; see Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).

And Hegseth, by name, ordered an invasion of MacArthur Park that served no purpose other than invading MacArthur Park.

Nor was Task Force 51 deployed only in support of federal enforcement actions. On July 7, approximately 80 Task Force 51 troops participated in a DHS operation, titled Operation Excalibur,3 at MacArthur Park in Los Angeles. Id. at 35:3–24, 99:21–24; Operation Excalibur Slides (Trial Ex. 28). This was DHS’s third attempt at the operation, and Secretary Hegseth himself approved it. 4 Trial Tr. Vol. I at 35:8–14, 103:19–24; Trial Tr. Vol. II at 261:24–262:3. Operation Excalibur involved federal law enforcement officials marching across MacArthur Park while Task Force 51 remained stationed on the outside of the park in military vehicles—Humvees and tactical vehicles—including at two traffic control points to prevent vehicular traffic along a stretch of Wilshire Boulevard. Operation Excalibur Slides at 5; Trial Tr. Vol. I at 35:25–36:1. DHS’s mission in executing Operation Excalibur was “to demonstrate, through a show of presence, the capacity and freedom of maneuver of federal law enforcement within the Los Angeles Joint Operations Area.” Operation Excalibur Slides at 4. And the operation’s purpose was to “enable and protect the execution of joint federal law enforcement missions in a high-visibility urban environment, while preserving public safety and demonstrating federal reach and presence.”

3 Excalibur is, of course, a reference to the legendary sword of King Arthur, which symbolizes his divine sovereignty as king.

4 Initially, Operation Excalibur was planned to take place on Father’s Day and to have Task Force 51 military vehicles stationed on the section of Wilshire Boulevard that runs through MacArthur Park. Trial Tr. Vol. I at 99:25–100:7. Major General Sherman objected to that request for assistance, expressing concern that (1) there would be a large number of people in the park for Father’s Day, (2) Wilshire Boulevard was in the middle of the Park (the operation’s law enforcement area), and (3) the initial proposal to use helicopters would attract large crowds in opposition to the operation. Id. at 100:8–10; Trial Tr. Vol. II at 263:22–264:15. Chief Bovino of the Department of Homeland Security criticized Major General Sherman for his opposition to the initial plan, questioning Sherman’s loyalty to the country. Trial Tr. Vol. I at 103:5–8. This is relevant because Chief Bovino’s accusations of disloyalty go to the state of mind of decisionmakers who are tasked with ensuring that the Posse Comitatus Act is followed.

These were both included in Breyer’s language finding that the intent of the invasion was to use military troops to conduct law enforcement.

In fact, these violations were part of a top-down, systemic effort by Defendants to use military troops to execute various sectors of federal law (the drug laws and the immigration laws at least) across hundreds of miles and over the course of several months—and counting. The instructions to train Task Force 51 on the purported constitutional exception and thereby excuse unlawful military conduct came “all the way from the top” of the Department of Defense. Trial Tr. Vol. II at 283:1–3. And as Major General Sherman testified at trial, federal law enforcement agencies “always wanted military there, and we had plenty of capacity to do that.” Trial Tr. Vol. I at 137:23–25. Accordingly, Secretary Hegseth himself ordered troops to MacArthur Park as a “show of presence” and to “demonstrat[e] federal reach and presence.” Id. at 103:24; Operation Excalibur Slides at 4. Troops drove over a hundred miles to Mecca, where they significantly outnumbered federal law enforcement agents, to support a drug enforcement operation. Trial Tr. Vol. I at 32:9–33:4, 80:19–23; Mecca Storyboard. Troops also drove nearly a hundred miles in a different direction to Carpinteria to set up traffic control points so that federal law enforcement agents could more efficiently execute their search warrant of a cannabis farm. Trial Tr. Vol. I at 84:7–20.24

23 By contrast, some individual examples of Task Force 51’s conduct, like the detention of a veteran at the Wilshire Federal Building, are too isolated to violate the Posse Comitatus Act. The Marines stationed at the Wilshire Building minimized their interaction with the veteran, turning him over to law enforcement authorities at the first possible occasion. Moreover, the record does not indicate that the military’s presence at federal buildings in Los Angeles involved any impermissible law enforcement activity.

24 Even if there is a “constitutional exception” that authorizes the military to engage in law enforcement anywhere in the field under the label of “protection,” these activities would not fall under such an exception. Troops do not serve a protective function when they act as a force multiplier at a “show of presence” (as in MacArthur Park), when they outnumber federal personnel by 100 at a remote location with a low risk of resistance (as in Mecca), or when they are deployed merely to speed up federal operations (as in Carpinteria).

So if the PCA means anything, some entity should throw Hegseth’s sorry ass in prison.

The impossibility of that happening, the impossibility of even considering that happening (Breyer instead went through some hoops to enjoin further violations, treating it civilly) is a testament to how inapt the laws designed to prevent just this kind of invasion are to the moment. Even if there were an entity not subject to federal funding who could arrest Hegseth, even if there were a prison to put him in, Trump would simply pardon his Defense Secretary (as he has floated doing in the past), and Hegseth would be back in charge to illegally invade some other blue state again.

And all that’s before you consider how a law criminalizing using the military to invade states intersects with SCOTUS’ decision in Trump v US, which would give Trump absolute immunity for ordering the military to violate the Posse Comitatus Act. It is a crime to do what Trump did in Los Angeles, but last year SCOTUS made it not a crime. And SCOTUS will soon have to figure out whether things like laws upholding federalism matter at all anymore.

So while Breyer’s opinion is welcome and may give Trump pause, however brief, as he tests other legal theories under which to invade Chicago and Baltimore, the opinion is better understood as an opinion documenting how inapt all these tools are.

Indeed, the opinion is most interesting where Breyer pointed out the ridiculous implications of the Ninth Circuit opinion reversing his earlier order, which adopted a highly deferential standard to Trump’s claims that he needed the Guard to help enforce Federal law.

The impact of Defendants’ argument is largely due to the Ninth Circuit’s reading of § 12406(3) in its order staying this Court’s temporary restraining order pending appeal. In that order, the Ninth Circuit held that courts can review the President’s invocation of § 12406 only to determine (1) if it has a colorable basis and (2) if it is made in good faith. Newsom, 141 F.4th at 1050–51.11 The Ninth Circuit did not clarify these standards further. For example, it did not explain how a plaintiff could challenge—or how a district court could evaluate, especially on an expedited basis in proceedings for preliminary injunctive relief—a presidential invocation of § 12406 for lack of a colorable basis or good faith. Nor does the Ninth Circuit suggest that courts are well positioned to evaluate whether the President acted in good faith, rather than as pretext for federalizing the National Guard.12 The Ninth Circuit also suggested that the President can invoke § 12406(3) if his ability to execute federal law has been “significantly impeded,” rather than the stricter statutory requirement that he be “unable with the regular forces to execute the laws.” Id. at 1052. Thus, under the Ninth Circuit’s test, the President could federalize the National Guard in any number of cases:

The President, relying upon IRS data showing that a sizeable percentage of corporations and individuals are using tax shelters to avoid paying taxes, could claim that he is unable to execute the tax laws.13

The President, relying upon EPA studies showing that pollution in a river cannot definitively be traced back to a specific manufacturing plant, could claim that he is unable to execute the Clean Water Act.

The President, relying upon health data showing the number of individuals who present to hospitals with narcotic-related symptoms, could claim that he is unable to execute the federal drug laws.

The President, relying upon anecdotes from state election officials that voting machines are glitching, or that fraud exists, could claim that he is unable to execute the election laws.

In each instance above, the President would have asserted a colorable, good-faith claim. Under the Ninth Circuit’s test, that is all he would need in order to call the National Guard into federal service—and then, under Defendants’ urged interpretation of § 12406(3), use those troops to execute domestic law. Though Defendants initially did not disclose the implications of reading § 12406(3) as a grant of significant presidential discretion (those implications being Defendants’ current position that § 12406(3) is an exception to the Posse Comitatus Act), they have now fully fleshed out their views. In doing so, they make plain the consequences of the Ninth Circuit’s highly deferential reading of the statute

11 This standard purportedly comes from the Supreme Court’s decision in Sterling v. Constantin. Id. (citing 287 U.S. 378, 399–400 (1932)). In Sterling, the Court determined that the governor of Texas had acted lawfully when he restricted oil production across the state. 287 U.S. at 387. Though the Court found that the governor had acted in good faith, it did not set forth any actual test for evaluating executive discretion. Id. at 399–400. Rather, it relied on earlier cases holding that the Executive has inherent discretion by virtue of his role as Commander-in-Chief and his obligation to “take care that the laws be faithfully executed.” Id. (citing Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29–32 (1827), and Luther v. Borden, 48 U.S. (7 How.) 1, 44–45 (1849)). Neither of those cases instructed courts to evaluate whether the Executive had a colorable basis for his actions or whether he acted in good faith. Martin, 25 U.S. at 31; Luther, 48 U.S. at 43–44. Furthermore, as explained below, Martin, Luther, and Sterling’s reliance on the Commander-in-Chief and Take Care Clauses conflicts with the Supreme Court’s more recent interpretation of those Clauses in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

12 For instance, the Ninth Circuit’s test would likely enable a President to use federal law enforcement agents to stoke tensions and then use any resistance as justification to call forth the National Guard. As long as the President actually believed that the resistance significantly impeded his ability to execute federal law, it is hard to see how a court could find that he acted in bad faith, especially under the Ninth Circuit’s deferential standard of review. See Good Faith, Black’s Law Dictionary (12th ed. 2024).

13 Incidentally, when Congress debated the Militia Act of 1792—a distant predecessor to § 12406—Representative Abraham Clark posited in opposition that the law would make it “so that if an old woman was to strike an excise officer with her broomstick, forsooth the military is to be called out to suppress an insurrection.” 3 Annal of Cong. at 575 (1792).

Yesterday, a judge ruled that evidence presented at trial showed that Pete Hegseth broke the law in ordering troops to take actions that amount to law enforcement. He criminally ordered troops to help invade MacArthur Park — and tried to ruin Father’s Day as part of the plan!

But the only way in which that law will mean anything is if SCOTUS stops permitting presidents, this President, to invent any bullshit excuse in the service of fascism.

Opinions

Original Breyer opinion

Ninth Circuit opinion

New Breyer opinion

Trump v US opinion

Share this entry

A Tale of Two Governors: Confronting versus Dick-Wagging

September 2, 2025/72 Comments/in emptywheel /by emptywheel

In a column on an imagined split in the Democratic party over the word “distraction,” Ron Brownstein linked to this Molly Jong Fast interview with Gavin Newsom in support of his argument that Newsom was criticizing a focus on affordability.

In a recent interview with podcaster Molly Jong-Fast, Newsom implicitly criticized the instinct of other Democratic leaders to pivot back to economic issues whenever possible.

But Brownstein was misrepresenting the jist of the conversation with Newsom and Jong-Fast, and in so doing, wildly misunderstanding Newsom’s pivot. He’s not alone in missing the point. Brownstein’s column is among many from pundits who belatedly discovered Newsom’s trolling but wildly misunderstand it to be exclusively about a willingness to directly confront Trump.

The primary focus of Jong-Fast’s interview with Newsom was about him breaking through the news cycle. From the very start, she dated his breakthrough to two weeks earlier (so around August 9), while he described the shift in his messaging strategy first to Trump and Elon Musk’s disinformation during the fires,

Those first few days they were winning the messaging battle.

But as Newsom described, his state of mind changed when Trump invaded Los Angeles, back when I first profiled his trolling efforts.

And my state of mind radically changed at that moment. And our media shift [sic] changed. Our research, our clarity, the conditions changed, so we had to change. And we were no longer apologetic about things. I wasn’t trying to play nice.

And I know a lot of good people play nice. Talk about what you really focused on every day. And people will pay attention to your ten point plan on affordability. And talk about kitchen table issues. Well we’ve been doing that every damn day for years and years and years, with all due respect.

And that doesn’t get picked up. And then we’re chasing lies and misrepresentations and untruths.

And so about a few weeks ago, as it relates to redistricting, we decided yeah, we’re going to punch him back, and we’re going to put a mirror up to the absurdity that is Donald Trump.

Newsom’s comment was not about content — that ten point plan (indeed, he went on to lay out policies he dubbed progressive later in the interview).

It was about attention. That ten point plan “doesn’t get picked up,” which leaves you “chasing lies and misrepresentations and untruths.”

The import of attention can best be shown by Brownstein’s own invocation of JB Pritzker’s firey speech last week just before he invoked Newsom.

Pritzker has been unsparing in denouncing Trump as a “wannabe dictator,” as he put in a fiery news conference last week decrying the president’s threats to deploy the National Guard to Chicago. Surrounded by local business, religious and civic leaders, Pritzker struck a conspicuously more urgent tone than the party’s Congressional leadership. “If it sounds to you like I am alarmist, that is because I am ringing an alarm,” Pritzker insisted, before describing the prospect of troops on Chicago streets as “unprecedented, unwarranted, illegal, unconstitutional, un-American.”

Pritzker’s speech — as well as an appearance on Face the Nation — was precisely what Democrats want to see. It laid out how Trump is harming efforts to address crime and accused Trump of illicit motives for the invasion. But even though he implored the press not to both sides his comments about Trump’s invasion, many did (and by asking five questions about the 2028 presidential election, CBS’ Ed O’Keefe situated this as a 2028 conflict). Politico even did a story on how Pritzker is losing weight and Trump is taking notice.

And contrary to the claims of pundits who want this — a unified, firey press conference — to be enough, thus far it has achieved nothing more than Milwaukee Mayor Cavalier Johnson’s own comments about their success in fighting crime: a renewed request from the White House that he ask for help.

Indeed, every single day, Trump focuses on Chicago, raising the political stakes for Pritzker and Chicago Mayor Brandon Johnson.

The misunderstanding about Newsom’s success derives from the point I made here. Liberals and journalists understand language differently than fascists do. Liberals want to argue about truth, which Pritzker did exceptionally well. He laid out crime rates, he laid out how IL has addressed it, he laid out policy issues.

But right wingers want to grab and hold attention and mobilize emotion.

Compare how the two approaches work. In both his presser…

So in case there was any doubt as to the motivation behind Trump’s military occupations, take note: 13 of the top 20 cities in homicide rate have Republican governors. None of these cities is Chicago.

Eight of the top 10 states with the highest homicide rates are led by Republicans. None of those states is Illinois.

Memphis, Tennessee; Hattiesburg, Mississippi have higher crime rates than Chicago, and yet Donald Trump is sending troops here and not there? Ask yourself why.

And on Face the Nation, Pritzker factually described that Trump is focused on blue states when red states have worse crime.

Notice he never talks about where the most violent crime is occurring, which is in red states. Illinois is not even in the bottom half of states in terms of violent crime. Indeed, we’re in the best half of the states so- but do you hear him talking about Florida, where he is now from. No, you don’t hear him talking about that, or Texas. Their violent crime rates are much worse in other places, and we’re very proud of the work that we’ve done.

Newsom, by contrast, has relentlessly called out Republicans on Xitter every time they focus on blue state crime.

Often, when he calls out those Republicans, he treats their focus on blue states as a confession of their own ignorance, a dick wag that will drive engagement. He accuses Lankford of being stupid because he doesn’t know (or, just as likely, won’t admit) that murder in Oklahoma is higher than in California.

But a more remarkable intervention is this press conference he did last week.

The first seven minutes or so focused on new teams focused on policing — that was the focus of straight news reports like this one and this one.

For the next several minutes, Newsom reminded that we’re still waiting on the decision on Posse comitatus from Judge Charles Breyer, a decision that will be appealed and will determine the course of invasions for some time. He laid out the stakes of this (a point he returned to).

Newsom then had his top law enforcement officials speak, for about seven minutes; Newsom nodded to the support from communities for the law enforcement efforts.

Newsom then took questions. The first question was about whether this announcement was a response to Trump’s threats to deploy the National Guard. Newsom noted that Trump is doing things to people, not with people (and nodded again to the upcoming Breyer decision).

At 17:50 — this is the part that has been picked up nationally — Newsom then moved to trolling.

But I should note, just on that, if he is to invest in crime suppression, I hope that the President of the United States would look at the facts. Just consider Speaker Johnson’s state. Just look at the murder rate that’s nearly four times higher than Californian’s, in Louisiana. This is Speaker Johnson. 4-ex. Higher. I’m just offering — again, you’ll not see this on Fox News so the President may not be familiar with these facts. So I want to present some facts to the President of the United States. I imagine this is alarming to the President, to learn these facts, particularly Speaker Johnson, he’s been such a strong partner, and ally, in these efforts, so the carnage in Louisiana is well defined.

Newsom then turned to Mississippi, “Murder rate’s out of control, carnage,” again presenting it in terms of interest to the President (and in the same emotional language that Stephen Miller uses to address crime). He focused on Missouri, Arkansas.

Again, these are just, not just observations. They’re stone cold facts. And the fact remains that if the President is sincere about the issue of crime and violence, there’s no question in my mind that he’ll likely be sending the troops into Louisiana, Mississippi, to address the unconscionable wave of violence that continues to plague those states.

Not only did Newsom’s serial focus — with props — on right wing states get picked up by influencers and state Democratic parties, it baited Fox News, which asked Johnson about the stat in a live appearance (though without including the bit where Newsom said Fox would never cover it!), which Newsom then used for two more viral posts, one reiterating that Louisiana has a higher crime rate, another laughing at Johnson’s word salad.

Back to the press conference, in response to the next question, Newsom talked about the assault on America, especially racial profiling. He addressed how he was mirroring Trump’s grift and hypocrisy to raise a mirror to it.

The next question raised Trump’s alternative facts. Newsom focused on the chatbots on Fox News. He returned to the comparison of state crimes.

Where’s the President of the United States. These are the folks — these are his states that voted for him. His state of mind doesn’t seem to be focused on the issue of crime and violence. It’s about expression of authoritarianism. He reflects and waxes, two out of the last three days, about being a dictator.

He was asked if he was mimicking the Oval Office by holding the presser in his office, which he dodged.

In response to a late question, Newsom then noted that CA’s cops had to protect the Guard Trump deployed.

I want to also compliment the Commissioner. It was the CHP working with LAPD that were protecting the National Guard and the military in LA. I want to thank them for that. The LAPD, in partnership with the CHP, had to protect the Federalized Guard and the United States military after Donald Trump federalized them.

The last question attempted to bait Newsom into saying that crime wasn’t a problem. He repeated, again, that he was working with others, rather than doing to.

JB Pritzker and Gavin Newsom said, effectively, precisely the same thing. Both said they were addressing crime in their states, with positive outcomes, and so didn’t need any further intervention from Trump. Both noted that other states — red states — needed Trump’s help more. Both suggested that Trump was focusing on blue states out of an authoritarian plan.

But Newsom’s intervention worked differently for several reasons. Perhaps most importantly, Newsom focused the pressure on others, flipping the political script, on Speaker Johnson’s complicity in ignoring his own states to enable Trump’s invasions. When addressing Trump, Pritzker assumed a common understanding of factual data, simply stating that crime was higher in Florida and Texas. But Newsom pitched his discussion of variable crime rates on the presumption that Trump would have no idea of anything he didn’t see on Fox News (and for whatever reason, baited Fox into covering precisely that data). Newsom also appealed to tribalism, suggesting that Trump was neglecting the states that voted for him. As noted, Newsom also adopted the alarmist language used by Miller — but he did so to describe right wing states.

A big part of the difference, in my opinion, is audience. Pritkzer seemed to address the press or Democrats. Even while Newsom provided a news hook for local coverage, he also aimed to address Trump and right wing politicians and audiences — even baiting Fox News!! — in the kind of dick-wagging power language that is meaningful to them.

Not all of it worked. I haven’t seen anyone pick up the detail that the LAPD had to defend the Guard (that may be one reason the Guard in DC is armed).

But it used the idea of a press conference (albeit seemingly mocking Trump’s Cabinet Meetings) to provide different points of access for the straight press, for lefty influencers, and for right wing media.

This isn’t just about confrontation, which his what many pundits think it is. Both Pritzker and Newsom were confronting Trump directly. Brownstein misunderstands virtually everything that is going on (not to mention misunderstanding that members of Congress necessarily play a different role here).

This is about confronting Trump in a way that undercuts his basis of power, even while embarrassing the press of all stripes to stop normalizing Trump’s authoritarianism.

Update: Judge Breyer just enjoined Trump from violating the Posse comitatus act.

Share this entry

Kash Patel Yapped His Mouth with a REAL Feeb

“He was accompanied by a beautiful date”

The Education of Ezra Klein

Keeping the Courts Open in March Sustained Habeas Corpus

Mike Johnson Snitch-Tags Donald Trump

Fridays with Nicole Sandler

What We Talk About When We Talk About AI (Part Four)

LLMs are Lead

Part 4- Delusion, Psychosis, and Child Murder

(Go to Part Three)

Bad Friends

Thinking Machines

The New Lead

The Old Lead

Technological Perdition

Maybe We Shouldn’t Be Doing This

Scott Bessent Fact Checks Donald Trump’s Lies about Tariffs

Pete Hegseth Committed A(nother) Crime But We Can’t Throw Him in Prison

Opinions

A Tale of Two Governors: Confronting versus Dick-Wagging

Interesting links

Pages