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

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

1. George M. Cohen, Brokaw Professor of Corporate Law at the University of Virginia School of Law.
2. Susan P. Koniak, Professor of Law, Emerita, Boston University School of Law.
3. Jonah E. Perlin, Associate Professor of Law, Legal Practice and Senior Fellow of the Center on Ethics and the Legal Profession at Georgetown University Law Center.
4. Nancy B. Rapoport, UNLV Distinguished Professor & Garman Turner Gordon Professor of Law at William S. Boyd School of Law, University of Nevada, Las Vegas.
5. Mitt Regan, McDevitt Professor of Jurisprudence and Director of the Center on Ethics and the Legal Profession, Georgetown University Law Center.
6. W. Bradley Wendel, Edwin H. Woodruff Professor of Law at Cornell Law School.

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

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

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

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

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

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

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

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

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

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

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

And that’s it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Will Stephen Miller send his terrorists to the concentration camp?

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

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

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

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

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

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

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

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

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

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

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

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

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

Has Bondi’s DOJ lost all presumption of regularity?

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• The basis by which they smothered USAID
• The legal basis for revoking Mahmoud Khalil’s student visa green card
• Their opinion about the Eric Adams prosecution team
• Who leads DOGE and what her real day job is and Elon Musk’s role in it all

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

• We’re just lending Nayib Bukele detainees
• We fucked up
• We’ll comply with SCOTUS’ order
• Nope, Abrego Garcia is Bukele’s for keeps
• We fucked up but we’re declaring backsies on a 2019 decision
• It’s classified

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[NB: check the byline, thanks. /~Rayne]

Elon Musk has repeatedly said government functions should be privatized.

You already know how that works out for the U.S., because it’s one of the biggest single differences between the cost of living in other first world countries and the U.S.

It’s also one of the biggest differences in life expectancy between other first world countries and the U.S.

Healthcare in the EU, for example, costs much less than it does in the U.S., and outcomes measured in life expectancy are far better.

But healthcare in the EU is not fully privatized; though not identical across all EU members, it’s based on universal access and publicly subsidized.

Ditto for Canada and Greenland, the countries Trump wants to seize. Better that they seize us and bring their healthcare systems with them.

But this month has also demonstrated the risk of taking Elon Musk seriously when it comes to privatization.

Imagine this is our social security system:

 

Who’s not going to get their checks if the bottom drops out even further? Why should Americans who’ve paid into Social Security over a lifetime of work have to worry about additional risk to their futures because unelected and unconstitutionally appointed Musk believes exposure to the market is what Americans need?

It’s bad enough that Americans’ cost of daily living expenses is further exposed to market risks because of Trump’s misbegotten, ill-considered tariffs. Musk believes Americans’ retirement years should be even more deeply risky.

It makes zero sense to listen to a man who has no empathy for others’ concerns, who has no experience dealing with a limited income and trying to make ends meet. He doesn’t have adequate background let alone personal history to make such judgments about what will work best for the American people; he doesn’t even view his children’s health as personal obligations (ex. recent public pleas by two of his children’s mothers for assistance with healthcare matters).

~ ~ ~

What really takes the cake is the silence of the business world.

Of course the financial industry is silently slavering over the chance to get their grubby mitts on our Social Security, and they’re staying quiet about it because they know they dare not set off the American public.

But Jeff Bezos’ Amazon-derived fortune was made in no small part off the subsidy that the U.S. Postal Service has been to American business.

USPS is the fallback for shipping nearly anything nearly anywhere in the U.S.; Bezos didn’t have to worry about whether his books would sell in North Utter Remote, Outer Territory USA. There was a post office nearby where purchasers could pick up their orders if they couldn’t be delivered to their door by USPS carriers on foot.

Bezos didn’t have to negotiate that. Didn’t have to buy sorter equipment, trucks, hire and train personnel, build sorting facilities, so on. All of that was on our dime when it wasn’t paid for by postage, until Amazon was successful enough to consider reducing shipping and handling costs further with their own trucks.

Furthermore, Bezos knew what the competitive rate for shipping a majority of Amazon’s products would be based on USPS rates – rates set by USPS bidding out trucking and equipment purchases. When Amazon started buying its own trucks, Amazon knew its costs had to be no more than USPS’ costs to deliver.

In short, our tax dollars and our volume of postage helped underwrite Jeff Bezos’ billions.

And he’s just going to sit there smug and mum, enjoying his irrational wealth while Musk shoots off his mouth about privatizing government.

Because Bezos will probably ensure the next billions he makes off our backs is from Amazon Postal Service.

Can’t begin to imagine how much our health care will cost once Amazon has the contract both for postal delivery of medications and health care insurance.

You can only imagine when Musk takes his chainsaw to Amtrak what will happen next: he’ll claim only his vaporware Hyperloop is the alternative, and American people should pay him billions to implement it instead of a long-proven passenger rail system.

Privatization will not yield better outcomes for the American people and you already know that. Don’t wait until Musk uses DOGE to shut off funds to the USPS; he’s already targeted USPS personnel. Contact your representative and senators and insist that government should NOT be privatized.

Not our Social Security, not our mail delivery, not a single government service which could end up becoming a pricey-to-us privatized profit center for billionaires.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

---

Amicus briefs

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

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

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

Lawyers Defending American Democracy: Argues usurpation of judicial authority.

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

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

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

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

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

Litigation Firms: On zealous advocacy.

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

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

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

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

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

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

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

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

---

Perkins Coie filings

[docket]

March 11: Complaint

March 11: Motion for TRO

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

March 12: Order granting TRO

March 14: DAAG Richard Lawson files notice of appearance

March 14: Status report on compliance

March 18: Douglas Dreier withdraws appearance

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

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

March 20: Status report (filed late)

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

March 21: Motion to disqualify Beryl Howell

March 26: Order denying motion to disqualify

April 2: Motion for summary judgment

• Statement of facts (including Republicans from firm, range of federal business, description of pro bono work, details on Marc Elias and Michael Sussmann and decade of Trump’s animus, description of lawyers with clearance — including one granted Top Secret clearance under Trump
• David Burman Declaration
• Chris Manning Declaration
• Bruce Green Expert Report (on judicial regulation of lawyers)
• Robert Hirshorn Expert Report (on zealous advocacy)
• Roy Simon Expert Report (on Constitutional problems)
• Bill Leonard Expert Report (on security clearance)

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

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

WilmerHale filings

[docket]

March 28: Motion for TRO, Preliminary Injunction

• Bruce Berman Declaration

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

April 8: Motion for summary judgement

• Summary of facts
• Bruce Berman Declaration
• Joseph DeMott Declaration

Jenner & Block filings

[docket]

March 28: Motion for Temporary Restraining Order

• Declaration of Thomas Perelli

April 8: Motion for summary judgement

• Summary of facts
• Michael Attanasio Declaration

April 8: Motion to dismiss

Protesting Safer in America

It’s not looking good out there, and a lot of people in the coming months (and maybe years) will be taking the streets to show the government their displeasure. Protesting the Trump Administration is still legal, but there’s a lot you should know before you take your rights out for some exercise. You need a lot more than your funny sign ready before you head out for a protest.

First and foremost, you need to have a plan. Are you staying for the whole thing, even if it goes into the night? Are you there to show off your funny sign, take pictures, confront the police, or just vote with your body, to tell the Trump administration you don’t like what they’re doing? Do you want to keep people you care about safe while they attend? Or are you there to put your body on the line, come what may?

There’s a lot of different roles and ways to participate in a protest. I’ve been to dozens across three continent, usually in the role of journalist. But I’ve also protested, and even helped with organizing a few events. This will be a few lessons learned about attending and understanding protests. It is focused on American protests. In a practical sense what makes a protest American is American police and American laws. However, local laws on assemblies vary, as do local police cultures. If you don’t know how these factors work where you will be protesting, ask a local.

There are different roles for people at a protest, and they require different equipment and preparation.

Attendees

Bring with you:

•  water (not cola or sugary drink — really, just water in a refillable non-glass bottle)
• friend or lawyer’s number, preferably written on your body in marker
• snacks, for yourself and to give away
• USB batteries and cables for your cell phone, and better yet, bring enough to share charging with others
• saline eye wash
• earplugs
• if you wear contact lens, you should switch to glasses, or at least have them with you
• good shoes you can wear for days.

Maybe bring:

• a mask/respirator
• a camera
• goggles

These items can make you a target, but they can also be invaluable for dealing with violence or chemical agents. Masks can be useful for both not catching diseases and reducing the effects of less lethals like tear gas and pepperspray. This is one of the reasons they’re often illegal at protests, as well as making it marginally harder to identify protestors. I still bring one every time, but I try to keep them non-threatening. A cloth mask with a filter will not draw as much negative attention as a respirator or a gas mask, but will perform nearly as well.

Do not ever bring with you:

•  your only form of ID
• anything you can’t afford to lose
• prescription medications
• drugs, recreational or not.
• weapons or other illegal items (with the possible exception of masks)

Back up the data from any electronic devices you bring, and turn off face ID, fingerprint recognition, or anyway you could be physically compelled to hand over your data. Come up with a long passcode, and if you’re worried about forgetting it, write it down somewhere at home that only yourself and maybe your loved ones can access.

If you’re coordinating with people, make like the Houthi PC small group and create a Signal chat. (Don’t invite anyone from the Atlantic, they’re busy.)

 

 

 

Risky things to bring:

• spray paint
• canes, other assistive equipment
• anything an unreasonable police officer could construe as a weapon
• black clothing

Know where to find your people: pick a designated spot to meet up if you get separated. If phones fail or are lost or taken, make sure everyone knows where to go to meet up again.

A Few Observations for Organizers

I haven’t been a protest organizer myself, but I have talked to a lot of organizers over the years. Here’s a few novel things I’ve learned:

•  Have your messaging worked out and ready. When a journalist or a neighbor shows up, be ready to explain the plan and the goal of your protest. Don’t be cute or ambiguous, even if you’ve given your protest an extremely cute name. Everything should have times and dates, whether you’re posting to Facebook or flyering. Don’t use a relative date, like “Next Saturday.” Give a day, time, location, and if you’re really kind, the year. (I have seen people show up for a protest a year late.)
• Get to know your street medics. Many of them are medical professionals or volunteers in their normal life. Whether they think of themselves as there to protest or not, their first priority is to intervene before there’s serious injury, or in the worst case to administer first aid while waiting on an ambulance. They also might be handing out granola bars and water to tired or kettled protestors. These are the people you are most likely to be looking for, or are looking for you, by the time your protest is entering the turn from family gathering to unintended street battle.
• If it’s a large protest, designate a deescalation/intervention crew. Give them vests or something to ID them. This is especially true for long protests or particularly stressful circumstances. These are people who can intervene in conflicts or meltdowns, and potentially transfer cases to the medics or even standard emergency services if needed. Mostly though, they will be talking people down, getting them water, and potentially giving people who need it the permission to leave the protest.
• Learn how to use, and teach, the people’s mic. You may not think that you need this technique, and you may be right. But if things go sideways, it’s the last and most reliable way to coordinate with a crowd.
• Figure out a plan for how you either end your event, or let it transition to a rowdier protest after dark. You definitely know more about your local municipality than I do, and more about the crowd. You aren’t going to have as much control on the night crowd as you do on the day crowd, but you do have some power over the formal end of the event, and the character of that moment can effect how the wilder night protest goes. If you march people to the police headquarters at dusk and walk away, you’re communicating something very different to your people than if you end at a party in a commercial district with bars and restaurants.

The Folks You Meet at a Protest

The Protestors

These are people who probably on the whole agree with you. Most people at a protest are doing casual civic duty. They have made a funny sign, or knit a hat, and are dabbling in a bit of the democratic freedom to assemble. The US is a country that sadly enough ignores protests without paying much of a political price for that neglect. But there are times when protest can shake the political order of any nation, even our own. As a protestor or activist, you never know what kind of movement you’re in until years later, when it’s enshrined in the history books.

Some people just want to be where the action is at, or be part of an occasion. Some are doing a bit of what they consider their duty as a citizen. Some of the people in the crowd went out for a walk and ended up joining the crowd because it looked fun. A few are long time activists, people who have devoted their lives to moving the needle in the direction of justice, however they see it. A few are just the old guys who show up to everything.

Counterprotestors

Counterprotestors are usually a group of agitators who group together and harass or threaten the protestors. Usually they are best ignored, though they can become dangerously obnoxious. In some places, you can just point them out to the police if they get violent. In other places the group will take care of them, for better or worse. If local cops are trying to pull them out of a hostile crowd before they get beaten down, just steer clear of it. I have never seen a situation where sufficiently obnoxious counterprotestors didn’t eventually get sorted out by the natural order of things. But people can and do get hurt.

Legal Observers

The people in the florescent green hats are volunteers from the NLG – National Lawyers Guild. If someone has been pulled out of the crowd or detained by police, they’re the first people you can tell about it. Better yet if you can give them a photo of the arrest, and any other information you know about the detained person or persons. They can’t take action directly against police or counterprotestor violence, but they know some lawyers. If someone is being assaulted or arrested, it’s good to document it. Police can’t stop you from documenting it legally, but they might try to anyway. Usually backing up calms them down.

The Blackbloc/Antifa

A lot has been made of the terrifying evils of Antifa by Republicans. But “Antifa” is just short for Anti-fascist. I’ve never minded the idea of people being antifascist, but that’s become a more controversial position than I ever thought it would be.

The Antifa kids generally dress in black (hence Blackbloc) and stay together. They tend to be younger and whiter than most of the crowd. There’s good reasons for this — they are most likely to be involved in physical violence with the police, and being fit and white helps in not getting arrested or killed as much. Antifa may get into physical fights with the police. They will also be the people de-arresting other protestors the police are trying to take into custody.

Whether you agree with de-arresting or not, don’t get into the middle of it. Very few good things happen to you when you get between a 19-year-old with daddy issues and a baton, and a 35-year-old cop with daddy issues and a taser.

The Police

Law enforcement are nervous at protests. This is a universal, unless they outnumber the protestors. They are not used to being outnumbered or potentially outgunned, but they have to assume both at large protests. Ironically this is especially true in more gun friendly states. I recommend being polite and professional with them in person. Rarely is anything gained by being verbally confrontational, unless you’re a lawyer trying to get your client back from custody.

Police at a protest are never there to keep you safe. They are there mainly to protect property, and to disperse the crowd as soon as it is feasible to do so. If you need help, medical care, etc., don’t ask the police. They have neither the time nor inclination to help you. If someone is injured, find the protest’s medics. If the problem is severe enough, try to let an organizer know, or call 911 for an ambulance. It’s not impossible for the police at a protest to take care of an injured protestor, but it is exceedingly rare in my experience. A protestor is more likely to be arrested/detained than given treatment, even if the protestor is visibly injured or bleeding.

I’m going to repeat this, because people have a hard time understanding this: the remit of police at a protest is protect (mainly) commercial property, and to disperse the crowd as soon as it is feasible to do so. The police are not there for your health or safety. They will move in if they think someone is going to break the window of a Starbucks, but not if someone in the protest is injured.

The police will also have some terrible toys at their disposal. It’s likely that the speaker system the police are using at a protest is an LRAD or Long Range Acoustic Device. They both work as a speaker and as a weapon that can disperse a small crowd with painful noise. LRADs don’t work well to disperse large crowds, but they can drive away smaller crowds or groups that the police have divided up from the main protests. They will have chemical and less lethal munitions, as well as lethal weapons. They don’t want to use the lethal weapons — that’s a lot of paperwork. But they will use less lethals more quickly and indiscriminately than a normal person would find reasonable. Make your decisions about where to be and what to do in the protest with the understanding that the police are dangerous.

Police Kettling

Kettling is when the police block and surround a group of people, usually a smaller group within a larger protest, and don’t let them out. Sometimes they tighten in on the kettle to force people into a clump and either arrest or beat them. If you find yourself in a kettle, keep moving. I was once in a kettle for over five hours in New York, everyone in it walked around Zucotti Park for hours, because you don’t want to stop moving in a kettle. It makes you more vulnerable to arrest or beating.

The police will beat people, and the longer a protest goes on, the more tired and violent the police will become.

Protests After Nightfall

The kids and the pissed off old ladies tend to go home by sunset. Protests change character at that point, with more Black Bloc and sometimes running street battles with the police. This is generally a bit one sided, since some protestors may have brought some brass knuckles and spray paint, but the police have brought leftover gear from the wars in Iraq and Afghanistan.

It’s important to know the longer a protest goes on, the more likely the police will use less lethal weapons on everyone around them. There are good reasons to stay through the night and not cede ground to the police, like protecting someone or something, but it’s not easy.

You are always safer near a television news camera crew. It’s not perfect, but since Rodney King got beaten in Los Angeles, the police have been nervous about being filmed.

Once the mood has turned, and you’re in a kinetic situation with police and protestors clashing you have to think tactically:

– Know your egress points.. what does the map look like? Are the exiting streets blocked by police? Where are the police, where is their equipment? (What kind of gear they bring to the protest tells you what kind of protest they’re expecting and what they’re prepared to do about it.)

– For organizers or people shepherding a more kinetic protest, do you have eyes on the police? Do you have eyes on your the edge of your own protest? Will you know if arrests start? Will you be able to get to people if arrests or violence starts? What is your policy on dearresting?

When do you tell people who can’t afford to be arrested to leave the area? What is the is the trigger for that call to go out?

These are all things to think about as both an organizer or protestor before you’re in the situation.

The larger and more complex protests become, the larger and more complex managing the situation becomes. Police can set up rogue cell towers to intercept phones contacting the telecom infrastructure. Other people can detect those towers with a backpack of electronics and an antenna — but there’s not much you can do to stop official traffic sniffing.

If cell access is cut altogether, do you have some kind of back up?

Do you have a plan for jail support? Being there can mean the world for people in custody. Do you have a bail fund? Do you know lawyers willing to work pro bono for jailed protestors without any money?

The sad fact is this: if protest becomes effective, governments tend to react with extreme violence and rights abuses.

Protesting has Range

On one end of the spectrum, protests can be a fun walk in the park with witty signs and fun community. But they can go all the way to occupying government buildings, defending encampments from military, and deposing leaders who flee the country, like Viktor Yanukovych did in Ukraine in 2014.

I hope nothing like that is needed in America. We are not used to that kind of political fight, and I am not sure we are up for it. But it seems not beyond the realm of possibility in a country where people are already being disappeared for their speech.

My last piece of advice for a protest is simply to notice carefully what’s around you. What’s in the air? Where is this going? What might my political context ask of me, and what am I willing to give? No one can answer this but you, but when the time comes, you will know your answer.

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

• Miles Taylor
  • Executive Order
  • Fact [sic] Sheet
• Chris Krebs
  • Executive Order
  • Fact [sic] Sheet
• Lawfirm Susman Godfrey
  • Executive Order
  • Fact [sic] Sheet

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

[snip]

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

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

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

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

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

Here’s how that looks in the Krebs EO.

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

But there’s one more item of interest.

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

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

But it expands the review by two years.

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

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

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