Immunity for ICE agents is limited, unauthorized action or exceeding what is necessary and proper not covered

One of the striking features of the present administration is the regularity with which its leaders, from President Donald Trump on down, confidently describe the state of the law in ways entirely contrary to what had been seen as settled, on topics that range from flag burning to Congress’s TikTok ban to whether civil servants can be removed on a partisan basis, reported the Cato Institute. Sometimes, these proclamations may herald an effort to persuade courts to change prevailing doctrine, but at least as often they look more like an attempt to alter reality by establishing new legal facts on the ground. 

On October 24, influential White House adviser Stephen Miller appeared on Fox News when the issue of whether authorities in Illinois could prosecute misbehaving federal immigration agents under state law arose. Miller responded, “To all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

Whatever that is, it is not an accurate description of the state of the law. As Professor Steve Vladeck explains in this brief write-up, the actual rules are more complicated. There is indeed a zone of so-called Supremacy Clause immunity that will apply when “(1) the federal officer was performing an act that he was authorized to do by federal law; and (2) in performing the authorized act, the federal officer did no more than what was necessary and proper.” When either condition is not satisfied—when the agent is taking an unauthorized action or is acting under authorization but in a manner that exceeds what is necessary and proper—the immunity based on federal supremacy ends. 

As Vladeck notes, the prevailing rule in this category of immunity was formulated by Judge Michael McConnell, a conservative hero, and it does indeed allow state prosecutors to use state law to pursue instances of misbehavior by ICE agents.

Here’s another instance: in a piece at The Dispatch earlier this month, I tell how high administration officials, including Department of Homeland Security Secretary Kristi Noem and department spokeswoman Tricia McLaughlin, have repeatedly spoken as if citizens have no right to photograph or video record ICE raids or identify the officers by name. McLaughlin said, “Videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents,” and added, “We will prosecute those who illegally harass ICE agents to the fullest extent of the law.” Noem went even further, describing “violence” against DHS agents as “anything that threatens them and their safety, so it is doxing them. It is videotaping them where they’re at.” 

In point of fact, however, the courts aren’t on board with that sort of nonsense. While the Supreme Court itself hasn’t yet faced the issue squarely, the seven federal circuits that have done so—the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th—all agree that the First Amendment protects the right to record police performing their duties in public.* Those circuits cover such populous states as California, Texas, Florida, Illinois, New Jersey, Georgia, and Pennsylvania.

Here at Cato we’ve had the honor of participating as amicus in at least three (that I know of) of these circuit precedents: Fields v. City of Philadelphia at the Third Circuit in 2017, Adkins v. Department of Homeland Security at the Ninth Circuit in 2018, and Irizarry v. Yehia at the Tenth Circuit in 2022. Adkins, the Ninth Circuit case, was especially interesting because it involved two citizens arrested by Customs and Border Protection (CBP) for taking pictures at a border crossing that they believed documented unlawful searches and other problems; the agency, which had seized the men’s cameras and deleted their pictures, asserted that the sidewalks they were standing on were property it officially controlled, but it lost anyway. (Thanks to colleague Dan Greenberg for helping compile the cases.)

To some important extent, one of the audiences Noem and her department are seeking to reach was the same one Miller was explicit in addressing: ICE agents themselves. If the agents come to believe that they have blanket immunity whatever they do, or that citizens have no right to record them, they are more likely to take aggressive informal action, such as grabbing phones or taking news reporters into custody on charges of obstruction (perhaps later quietly dropped). These informal methods of repression, I observe, can very much set the tone for enforcement, no matter whether the agency does or does not expect courts to say later. 

If the agents are hearing a persistent message from their higher ups of “you’re immune no matter what you do,” it’s up to the rest of us to disabuse them of that error.

One of the striking features of the present administration is the regularity with which its leaders, from President Donald Trump on down, confidently describe the state of the law in ways entirely contrary to what had been seen as settled, on topics that range from flag burning to Congress’s TikTok ban to whether civil servants can be removed on a partisan basis. Sometimes, these proclamations may herald an effort to persuade courts to change prevailing doctrine, but at least as often they look more like an attempt to alter reality by establishing new legal facts on the ground. 

On October 24, influential White House adviser Stephen Miller appeared on Fox News when the issue of whether authorities in Illinois could prosecute misbehaving federal immigration agents under state law arose. Miller responded, “To all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

Whatever that is, it is not an accurate description of the state of the law. As Professor Steve Vladeck explains in this brief write-up, the actual rules are more complicated. There is indeed a zone of so-called Supremacy Clause immunity that will apply when “(1) the federal officer was performing an act that he was authorized to do by federal law; and (2) in performing the authorized act, the federal officer did no more than what was necessary and proper.” When either condition is not satisfied—when the agent is taking an unauthorized action or is acting under authorization but in a manner that exceeds what is necessary and proper—the immunity based on federal supremacy ends. 

As Vladeck notes, the prevailing rule in this category of immunity was formulated by Judge Michael McConnell, a conservative hero, and it does indeed allow state prosecutors to use state law to pursue instances of misbehavior by ICE agents.

Here’s another instance: in a piece at The Dispatch earlier this month, I tell how high administration officials, including Department of Homeland Security Secretary Kristi Noem and department spokeswoman Tricia McLaughlin, have repeatedly spoken as if citizens have no right to photograph or video record ICE raids or identify the officers by name. McLaughlin said, “Videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents,” and added, “We will prosecute those who illegally harass ICE agents to the fullest extent of the law.” Noem went even further, describing “violence” against DHS agents as “anything that threatens them and their safety, so it is doxing them. It is videotaping them where they’re at.” 

In point of fact, however, the courts aren’t on board with that sort of nonsense. While the Supreme Court itself hasn’t yet faced the issue squarely, the seven federal circuits that have done so—the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th—all agree that the First Amendment protects the right to record police performing their duties in public.* Those circuits cover such populous states as California, Texas, Florida, Illinois, New Jersey, Georgia, and Pennsylvania.

Here at Cato we’ve had the honor of participating as amicus in at least three (that I know of) of these circuit precedents: Fields v. City of Philadelphia at the Third Circuit in 2017, Adkins v. Department of Homeland Security at the Ninth Circuit in 2018, and Irizarry v. Yehia at the Tenth Circuit in 2022. Adkins, the Ninth Circuit case, was especially interesting because it involved two citizens arrested by Customs and Border Protection (CBP) for taking pictures at a border crossing that they believed documented unlawful searches and other problems; the agency, which had seized the men’s cameras and deleted their pictures, asserted that the sidewalks they were standing on were property it officially controlled, but it lost anyway. (Thanks to colleague Dan Greenberg for helping compile the cases.)

To some important extent, one of the audiences Noem and her department are seeking to reach was the same one Miller was explicit in addressing: ICE agents themselves. If the agents come to believe that they have blanket immunity whatever they do, or that citizens have no right to record them, they are more likely to take aggressive informal action, such as grabbing phones or taking news reporters into custody on charges of obstruction (perhaps later quietly dropped). These informal methods of repression, I observe, can very much set the tone for enforcement, no matter whether the agency does or does not expect courts to say later. 

If the agents are hearing a persistent message from their higher ups of “you’re immune no matter what you do,” it’s up to the rest of us to disabuse them of that error. 

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Troops deployed to Portland in defiance of Court Order

The Trump administration briefly deployed Oregon National Guard soldiers to Portland earlier this month, hours after a Federal District Court judge had ordered any such deployment blocked, the government revealed, according to The new York Times.

The District Court judge, Karin Immergut, raised the possibility that the deployment, however brief, had put the administration in contempt of court as she began a trial to determine whether to lift a temporary restraining order, or T.R.O., on troop deployments or make it permanent.

“We’ll discuss later whether that’s contempt and a direct violation of my T.R.O.,” Judge Immergut told a Justice Department lawyer after learning of the deployment.

President Trump wants to send National Guard troops to protect the U.S. Immigration and Customs Enforcement building in Portland, which has been the site of daily protests for more than four months. Oregon and the city of Portland have sued to stop that deployment, and a trial in the case began Wednesday.

But Judge Immergut imposed temporary restraining orders first on the use of Oregon National Guard soldiers beginning at 3:40 p.m. on Oct. 4, then on all guard troops the next day.

Before the trial began Wednesday morning, a Justice Department lawyer, Jean Lin, told Judge Immergut that Oregon soldiers under federal control were sent to Portland between 11 p.m. on Oct. 4 and 2 a.m. on Oct. 5. Ms. Lin did not say how many soldiers were sent or what they did at the ICE building.

A spokeswoman for the U.S. Northern Command, which oversees the federalized National Guard soldiers, said military officials were looking into news of the brief deployment. Emails submitted as evidence in the case show a nine-person advance team from the Oregon National Guard, part of 200 Guard troops federalized by the Department of Defense, reported working at the ICE facility after the temporary restraining order was filed.

The issue marked the second time this week that the Justice Department had to come clean before judges considering Mr. Trump’s planned deployment in Portland. Federal lawyers have said the National Guard was needed in Portland because the federal government had exhausted existing resources, even after moving Federal Protective Service officers and other law enforcement agents with other federal agencies to Portland from other parts of the country.

But in a filing to the U.S. Court of Appeals for the Ninth Circuit on Monday, U.S. attorneys acknowledged that they overstated the number of federal agents reassigned to Oregon.

In a brief filed before an Oct. 20 appeals court hearing, the government said that 115 Federal Protective Service officers from other parts of the country had been surged as a group to the ICE building and stated that “it is undisputed that nearly a quarter of the agency’s entire F.P.S. capacity had to be redirected over a relatively short period to a single location in one medium-sized American city due to the unrest there.”

But in a letter to the appeals court on Monday, a federal lawyer said 86 F.P.S. officers were actually sent to Portland over the summer, including some who were deployed multiple times. The lawyer also noted that the reference to “nearly a quarter” of the federal agency’s capacity being sent to Oregon was simply incorrect.

What the federal government meant to report, the lawyer wrote, was that 13 percent of the agency’s inspectors — who are responsible for crisis response, investigations and security assessments at federal buildings — had been deployed to Portland over the course of the summer.

On Wednesday, in the first day of what’s expected to be a three-day trial, lawyers for the city of Portland and the state of Oregon argued that the federal response to protests at the Portland ICE facility has been disorganized and needlessly violent.

“The court will hear that Immigration and Customs Enforcement officials have staffing challenges,” Scott Kennedy, a senior assistant attorney general for Oregon, told the judge. “But that has nothing to do with Portland.”

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CREATORS: The Killings Continue

Matthew T. Mangino
CREATORS
October 28, 2025

President Donald Trump is at it again. The president and his administration are carrying out indiscriminate executions. Since early September, the United States has carried out strikes against 10 boats off the coast of South America for alleged drug trafficking.

The intermittent strikes on sea-going vessels in international waters have killed at least 43 people, and in one instance, two men survived, were captured and repatriated to Colombia and Ecuador.

Trump and "War" Secretary Pete Hegseth have said the boats were known to be involved in drug smuggling, insisting they have the authority to carry out the strikes without authorization from Congress. The men on those boats have not been indicted; they had no right to legal counsel; no right to face their accuser; they have not been convicted of a crime in an American court — yet they have been "executed" for the crime of drug smuggling.

During the second half of 2020, in the midst of a pandemic and a re-election campaign, the Trump administration decided to indiscriminately start executing federal prisoners. After 17 years without carrying out an execution, the federal government carried out 10 in less than six months.

By the end of 2020, the federal government had conducted more executions in five months than any other presidency since the turn of the 20th century and carried out three more executions during a presidential transition more than any other administration in the history of the United States.

Maybe it was a ploy to bolster his tough guy bona fides or a lowbrow pitch to his "law and order" constituency, but Trump's bloodlust saw no boundary. Even after the election was decided, he kept on killing,

The unprecedented executions of 2020 included the first federal execution in 68 years of an offender who was a teenager at the time the crime was committed.

The 2020 executions included the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty, as well as executions carried out against the wishes of the victims' families and the first lame-duck executions in more than a century.

The executions carried out during a pandemic contributed to a COVID-19 outbreak in the Federal Correctional Complex in Terre Haute, Ind. The outbreak infected at least nine members of federal execution teams, several lawyers and at least one religious advisor.

The first Trump administration engineered a reckless flurry of state-sponsored killing — mocking societal norms and devoid of any act of mercy or decency.

At the White House last week, Trump said he thinks lawmakers will support his administration's efforts in the Caribbean. He was asked why then not ask Congress for a declaration of war, his response: "I don't think we're going necessarily to ask for a declaration of war. I think we're just going to kill people that are bringing drugs into our country. OK. We're going to kill them. They're going to be, like, dead."

Can presidents indiscriminately kill? For those on death row, it may not be the norm to carry out a flurry of executions, but those individuals were convicted of first-degree murder, and their cases had been reviewed by various appellate courts.

The drug strikes are different. Brian Finucane, a former legal adviser for the State Department, told NPR, "What this boils down to is the president of the United States asserting a prerogative to kill people based solely on his own say-so." No arrest, no trial and no conviction.

"Outside of armed conflict, there is a word for the premeditated killing of people, and that word is 'murder,'" he said. "And just because the administration puts together this fig leaf of a legal justification does not legitimize these premeditated killings in the Caribbean."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Can the president unilaterally deploy federal troops in the U.S.?

The Supreme Court is poised to decide a potentially momentous question for U.S. democracy: can the president unilaterally deploy federal troops on U.S. soil over the objections of state governors? In Trump v. Illinois, the Supreme Court will soon decide whether to issue a stay of a district court’s injunction of the deployment of National Guard troops to Chicago, reported Just Security. The government’s brief argues there is “no reason to believe that courts can, or should, second guess the President’s conclusion” that military force is needed to suppress an emergency. “[T]his case,” the brief argues, falls in the heartland of unreviewable presidential “discretion.” Even if judicial review is permissible, the government says, a court must be “highly deferential” to the President’s decision.

The Government’s position cannot withstand even rudimentary analysis. This is because the president’s authority is dramatically weaker when deploying troops domestically than it is when fighting enemies overseas.

Power Over the Military is not Exclusive to the President

The government’s interpretation suggests that a president may deploy military forces anywhere in the United States for any reason, and that courts would have no authority to determine its legality. This assertion runs counter to U.S. history, the structure of powers related to the military in the U.S. Constitution, and the theory of checks and balances.

The Framers and the generation that fought the American Revolution were well aware of the dangers of domestic use of the military. Among the grievances enumerated in the Declaration of Independence, abuse of the military was persistent theme: “He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature,” and “He has affected to render the Military independent of and superior to the Civil Power.” The Third Amendment to the Constitution reflects these concerns in its prohibition on quartering soldiers in civilian homes during times of peace without legislation.

For this and other reasons, the Framers wisely disaggregated the military power horizontally across the three branches of the federal government, as well as vertically between the states and the federal government. They gave Congress the unique power to declare war and appropriate funds for military exploits, along with a series of other war-related powers. They gave the executive branch the authority to command troops in battle. They gave the judiciary the ability to arbitrate disputes among the branches and to protect individual rights. They left to the various states the power to call forth a militia to protect the people within their particular jurisdictions.

In addition to the structural constitutional dissipation of control over the military, statutes like the 1878 Posse Comitatus Act forbid the use of the military for domestic law enforcement. Congress similarly banned the use of troops at polls around the same time. Even the Insurrection Act, which champions of presidential power cite as an ace-up-the-president’s sleeve, says that the president’s power to use the militia or armed forces is, among other purposes, to protect against the deprivation “of a right, privilege, immunity or protection named in the Constitution and secured by law” when the state is unable to protect such rights of the people (emphasis added).

In other words, the power of the president to use the military in times of emergency is arguably tethered to the need to protect the constitutional rights of the people. This is consistent with the president’s articulated duty under Article II of the Constitution to “take care that the laws are faithfully executed.”

No Cause for Deference

The claim of extreme judicial deference to the president rests on a false equivalence of foreign and domestic use of the military. There is plenty of case law that supports broad deference for presidential determinations regarding foreign troop deployments. Of course, federal judges have  been reluctant in our more recent history to second guess the decision to use the military to defend the United States against foreign enemies, or to micromanage tactical decisions during the course of a war. But when the president seeks to deploy the U.S. armed forces into American streets, the constitutional rights of Americans are potentially under threat, and courts are therefore duty-bound to exercise the utmost vigilance.

It is no accident that President Donald Trump is sending military forces into places in which there are some displays of opposition to his policies, based on an unsubstantiated and politically-motivated claim that these pose a threat to the country. It is no coincidence that in the midst of these deployments, he summoned every U.S. General from around the world to Washington to inform them that they need to focus on “the enemy within,” and urged them to use American cities as training grounds for the use of military force.

History tells us that deploying the military against one’s own people is the sine qua non of an authoritarian state, and represents the corruption of the military to solidify power. Be it Jews or other religious minorities, immigrants, infidels, suspected criminals, or alleged traitors, the “strong” leader convinces the population that these “others” are the true threat to national security and that therefore a military response is needed. Extreme deference to the president’s domestic use of the military abdicates the fundamental duty of courts to closely examine threats to fundamental constitutional rights of free speech and assembly that are the bedrock of a democracy.

The United States military swears an oath of allegiance to the Constitution. The oath of office of military officers, unlike that of enlisted servicemembers, contains no explicit commitment to follow presidential orders. Following military orders is obligatory, but only insofar as such orders are lawful. The same was true in Nazi Germany until August 2, 1934, when, following the death of President Paul von Hindenburg, the oath to follow the Weimar Constitution was replaced with an oath of allegiance to Adolf Hitler. Following that date, the German military was under the control of the Führer, sealing the death of German democracy until well after the end of the Second World War. More recently, two weeks ago in Madagascar, the civilian government was toppled by a military coup, the latest in a series of African countries to lose civilian control of the government—including military takeovers in Mali, Niger, Chad, Sudan, and Burkina Faso, not to mention those in other regions, including Myanmar.

If the Supreme Court decides to grant certiorari in the Illinois case or in a similar case involving use of the National Guard, such as the Oregon or California cases, the question of deference to presidential authority as Commander-in-Chief will be front and center. The government will once again argue that there is no basis for federal courts to second-guess presidential decisions regarding the deployment of U.S. troops, and that under Article II such second-guessing would be a violation of the separation of powers. Yet this appeal to presidential deference would ignore the basic distribution of military powers in both constitutional and statutory form that has existed for the entirety of U.S. history.

No case holds that the courts are powerless to prevent an illegal deployment of troops within the United States. How could it? Such a holding would render separation of powers meaningless and destroy the judiciary’s role as a bulwark against tyranny. The Court must remember its statement from 1972 in Laird v. Tatum:

“[T]here is nothing in our Nation’s history or in this Court’s decided cases… that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.”

Military rule and military coups have been fanciful, far-off threats in the United States, but President Trump has now made this threat real in his war against “the enemy within.” The Supreme Court must not shirk its obligation to ensure that presidents cannot conscript the military in an effort to undermine democracy.

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Trump’s premeditated extrajudicial killings by the military are illegal

Charlie Savage of The New York Times writes:

Since he returned to office nine months ago, President Trump has sought to expand executive power across numerous fronts. But his claim that he can lawfully order the military to summarily kill people accused of smuggling drugs on boats off the coast of South America stands apart.

A broad range of specialists in laws governing the use of lethal force have called Mr. Trump’s orders to the military patently illegal. They say the premeditated extrajudicial killings have been murders — regardless of whether the 43 people blown apart, burned alive or drowned in 10 strikes so far were indeed running drugs.

The administration insists that the killings are lawful, invoking legal terms like “self-defense” and “armed conflict.” But it has offered no legal argument explaining how to bridge the conceptual gap between drug trafficking and associated crimes, as serious as they are, and the kind of armed attack to which those terms can legitimately apply.

The irreversible gravity of killing, coupled with the lack of a substantive legal justification, is bringing into sharper view a structural weakness of law as a check on the American presidency.

It is becoming clearer than ever that the rule of law in the White House has depended chiefly on norms — on government lawyers willing to raise objections when merited and to resign in protest if ignored, and on presidents who want to appear law-abiding. This is especially true in an era when party loyalty has defanged the threat of impeachment by Congress, and after the Supreme Court granted presidents immunity from prosecution for crimes committed with official powers.

Every modern president has occasionally taken some aggressive policy step based on a stretched or disputed legal interpretation. But in the past, they and their aides made a point to develop substantive legal theories and to meet public and congressional expectations to explain why they thought their actions were lawful, even if not everyone agreed.

Around 15 years ago, intense legal controversy surrounded President Barack Obama’s drone strikes targeting Al Qaeda militants in ungoverned places where the United States did not have ground troops, like Yemen and tribal Pakistan. Those included the killing of a U.S. citizen, Anwar al-Awlaki, who was deemed an operational terrorist leader whose capture was infeasible.

Behind the scenes, Obama administration lawyers wrestled with the scope and limits of how the congressionally authorized armed conflict against Al Qaeda could apply to such scenarios. They developed lengthy and detailed memos citing Supreme Court precedents, and systematically worked through issues of domestic and international law.

The details of its legal rationale became known to Congress and the public not only through unauthorized disclosures and Freedom of Information Act lawsuits, but also because the administration delivered speeches and produced a white paper summarizing its reasoning, which it gave to Congress.

Today, the Trump administration is mostly behaving with audacious transparency about its boat attacks. Mr. Trump has posted surveillance videos of the deadly strikes, talked with relish about how “it is violent and it is very — it’s amazing, the weaponry,” and even acknowledged that he had authorized the C.I.A. to take covert actions in Venezuela.

But administration officials have clammed up when asked for the legal analysis to support their assertion that there is a legal state of armed conflict that makes the killings lawful.

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Even in closed-door congressional briefings, according to people familiar with them, officials have provided no detailed legal answers. They are said to have cited drug overdose deaths of Americans, and stated that Mr. Trump decided the country was in an armed conflict with drug cartels. They are also said to have pointed to the part of the Constitution that makes the president the commander in chief of the armed forces, without much further elaboration.

Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer in the George W. Bush administration, said Mr. Trump’s actions demonstrated an indifference to law that threatened to hollow it out.

“Nixon tried to keep his criminality secret, and the Bush administration tried to keep the torture secret, and that secrecy acknowledged the norm that these things were wrong,” Professor Goldsmith said. “Trump, as he often does when he is breaking law or norms, is acting publicly and without shame or unease. This is a very successful way to destroy the efficacy of law and norms.”

Anna Kelly, a White House spokeswoman, said in a statement that Mr. Trump promised during the campaign to take on drug cartels whose actions “resulted in the needless deaths of innocent Americans.” She suggested his “unprecedented action” would continue.

“All of these decisive strikes have been against designated narcoterrorists, as affirmed by U.S. intelligence, bringing deadly poison to our shores, and the president will continue to use every element of American power to stop drugs from flooding into our country and to bring those responsible to justice,” she said.

A Legal Vacuum

In peacetime, targeting civilians — even suspected criminals — who pose no threat of imminent violence is considered murder. In an armed conflict, it is a war crime. International law accepted by the U.S. military says that, as do U.S. laws.

By asserting that he can have the military kill people suspected of drug trafficking as if they are enemy soldiers on a battlefield, Mr. Trump is blurring a line between enforcing the law and waging a war.

The United States has long dealt with maritime smuggling by using the Coast Guard, sometimes assisted by the Navy, to intercept boats and, if illicit cargo is found, to arrest their crews. Similarly, the police arrest people they believe are dealing drugs; it would be considered murder to instead summarily gun such suspects down in the street. And even if a person accused of drug trafficking pleads guilty or is convicted at trial, the penalty is prison — not execution.

Since Sept. 2, however, the military, on Mr. Trump’s orders, has carried out 10 strikes on small vessels in the Caribbean Sea and the Pacific Ocean off the coast of Colombia. Mr. Trump has asserted that each boat carried drugs that would have killed 25,000 Americans, and on behalf of “narco-terrorists,” or cartels his team has designated as terrorist organizations.

It is increasingly difficult to speak plainly about the administration’s actions without dissecting layers of rhetoric that can create a misleading impression.

In all, about 80,000 American drug users died last year by overdosing, down from about 110,000 in 2023. The drug that has caused a surge in such deaths over the past decade is fentanyl, which comes from labs in Mexico. South America, the origin of the boats the Trump administration has been attacking, instead produces cocaine.

And terrorists, by definition, are trying to advance some ideological or religious cause. Drug cartels, by contrast, seek to profit from an illicit consumer product. In any case, the law that enables the executive branch to designate a group as terrorists triggers the power to freeze its assets and criminalize providing support to it, not to kill people suspected of membership.

These factual distinctions raise questions about the two legal terms the administration has invoked to say that its killings are lawful rather than murders: “self-defense” and “armed conflict.”

To legally kill someone in self-defense, the deadly force must be necessary to prevent an imminent threat of death or significant injury. In an armed conflict, though, one can legally kill someone based on the person’s status as a member of the enemy force, even if that person poses no immediate threat. But for an armed conflict to exist, there must be a certain intensity and duration of combat.

Why is carrying drugs on a speedboat 1,500 miles from Florida, the kind of vessel the Coast Guard and Navy could easily seize, an imminent threat of death? Why is trafficking cocaine — not fentanyl — an armed attack on the United States? Why does crewing a drug-running boat make someone a targetable combatant rather than a criminal?

What is the theory for transmuting acts of crime into acts of war?

Legal deliberations inside the executive branch, according to officials familiar with the matter, have been closely held and largely limited to political appointees. The Justice Department’s Office of Legal Counsel — which Mr. Trump sidelined for most of the year until appointing an official to lead it in August as preparations for the attacks ramped up — has produced a memo apparently blessing the campaign. But the administration has not described its analysis.

An administration official, speaking on the condition of anonymity to discuss a sensitive matter, disputed the premise of this article. The administration has, in fact, publicly laid out its legal theory, the official said, pointing to a recent notice to Congress about one of the boat attacks.

KILLING DRUG-SMUGGLING SUSPECTS

Read the notice to Congress about President Trump’s “determination” that the United States is in a formal armed conflict with cartels.

The notice lays out a policy argument for attacking cartels, portraying them as dangerous groups that are “directly” causing the deaths of tens of thousands of Americans each year. And it states that Mr. Trump has “determined” that their actions “constitute an armed attack against the United States” and that the country is in a formal “armed conflict” with them.

But even putting aside the key factual discrepancy between fentanyl and cocaine for overdose deaths, the notice contains no legal theory. It does not mention international and domestic laws governing force. It does not cite court precedents and analyze how they might apply. It offers no explanation for how Mr. Trump could legitimately “determine” that trafficking drugs is legally an armed attack, giving him the power to lawfully order killings in response.

Even if the Justice Department memo that somehow blesses the killings lacks much actual legal analysis and even if a future administration rescinds it, its existence essentially forecloses any prospect of future prosecutions. It is hard to prove someone intentionally committed a crime when the Justice Department itself said at the time that the action was lawful.

Two decades ago, Professor Goldsmith took over the Office of Legal Counsel and withdrew memos issued under the Bush administration that blessed the C.I.A.’s torture program. Reflecting on that period in a memoir, he called such memos get-out-of-jail-free cards.

Mr. Trump and Attorney General Pam Bondi have used the authority of the administration to exert pressure on the decisions of executive branch lawyers.Credit...Kenny Holston/The New York Times

The silence about what legal theory can support Mr. Trump’s assertion that suspected drug smugglers are lawful military targets as “combatants” in an armed conflict dovetails with a growing pattern in his administration’s assertions of executive power.

The administration has found a two-part hack to the system in which executive branch lawyers are supposed to independently determine the legal boundaries within which policymakers may act.

The first is that Mr. Trump has told executive branch lawyers that they may not question any legal judgment that he — or Attorney General Pam Bondi, subject to his “supervision and control” — already decided. “The president and the attorney general’s opinions on questions of law are controlling on all employees in the conduct of their official duties,” Mr. Trump declared in a February executive order.

The second is that Mr. Trump has been declaring that as president, he has determined that the factual and legal scenarios exist that are necessary for him to exercise various extraordinary powers.

The two tactics combined create a gigantic loophole. Mr. Trump is able to dictate his own factual and legal realities, and executive branch lawyers who want to keep their jobs must treat them as settled. The result is that Mr. Trump can order agencies to take actions to which independent-minded lawyers might have raised legal objections.

On his first day in office in January, Mr. Trump signed an order that nullified a law the Supreme Court had just unanimously upheld that banned TikTok from operating in the United States. When letters the Justice Department sent to tech companies assuring them that they could lawfully violate the statute became public in July, they explained only that Mr. Trump had “determined” that the law interfered with his constitutional duties.

Even when Mr. Trump’s “determinations” reach the courts, the administration has argued that judges must defer to Mr. Trump’s assertions, too.

For example, Mr. Trump is trying to use a wartime deportation law to deport Venezuelan migrants without due process — taking planeloads of them to a notorious Salvadoran prison — based on his assertion that Venezuela’s government is directing a gang to invade the United States.

The U.S. intelligence community believes the gang is not, in fact, controlled by Venezuela’s government, and lower-court judges have rejected his finding that illegal immigration counts as an “invasion.” But the administration has faulted those judges for having “failed to defer to the president’s determinations,” and a full appeals court has decided to rehear the case.

Mr. Trump’s attempts to deploy troops under federal control into Democratic-run cities like Los Angeles, Portland, Ore., and Chicago also turn on his finding, rejected by lower-court judges, that protests of his immigration crackdown were out of control. One Trump-appointed judge wrote, “The president’s determination was simply untethered to the facts.”

Two appeals court panels have overturned the rulings about Los Angeles and Portland, saying greater deference was required. A third panel upheld the ruling about Chicago, but the administration has asked the Supreme Court to intervene, insisting that courts may not “review the president’s judgment at all.”

Politically appointed officials have often been ready to devise creative legal theories that allow presidents to do what they want, especially when it comes to war powers. Many critics, for example, said that was the Obama administration’s approach in defending his unilateral decision to have the United States participate in NATO’s 2011 air war in Libya.

Still, the very act of searching for a legal theory and developing an argument can shape deliberations about what a president chooses to do. And sometimes presidents have restrained themselves because of legal objections, as when Mr. Obama relinquished his high-profile vow to close the prison at Guantánamo because of a law barring him from bringing detainees to the United States.

Based on the information now available, Geoffrey S. Corn, a retired judge advocate general officer who served as the Army’s senior law-of-war adviser and now teaches criminal and military law at Texas Tech University, said that the United States was not in an armed conflict with drug cartels, notwithstanding Mr. Trump’s “determination.”

Professor Corn said he believed the killings were illegal, and expressed concern about “the impact on the morality of the war fighters who have to carry out the orders.”

“The men and women who volunteered to serve this nation and engage in the most morally challenging conduct imaginable — killing someone who is not immediately threatening you — have a right to know the nation will not order them to engage in that deadly endeavor unless it is genuinely justified both legally and morally,” he said. “The service members who conduct attacks have to live the rest of their lives with the memory.”

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Trump tears down the House

 Maureen Dowd of The New York Times:

Before the orange cyclone hit town, Washington was a far more staid place.

Al Gore loved to host small dinner parties focused on scholarly topics. One dinner was devoted to the meaning of metaphor. “I l-i-i-ke metaphors,” Gore drawled to The Washington Post when he was vice president. “The more complex and arcane the better.”

What must Gore make of the unsanctioned, ahistoric, abominable destruction of the East Wing by Donald Trump? It’s the most remarkable metaphor we’ve ever seen in the nation’s capital. It’s not complex or arcane. It’s simple and visceral. It slams you in the face — metaphorically speaking.

“He’s saying, ‘I can do whatever the hell I want and you can’t stop me!’” said David Axelrod, who worked in the Obama White House. “In this case, it’s sundering history.

“If you worked in the White House, you have a reverence for every wall of that place. Tattered as it may have been, there was a dignity to it. It was a quietly stately citadel of power in America, not a palace for a mad king. Trump has a manic desire to tear down history and write his own.”

A Jackie Kennedy garden was plowed over by the bulldozers. The woman with the best taste in the history of the White House was rubbished by the man with the worst taste in the history of the White House.

Many of his voters wanted to see Trump take a jackhammer to Washington, but I’m not sure they meant it this literally.

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Melania probably doesn’t care. As The Times’s Katie Rogers reported in her book about first ladies, “American Woman,” Melania only dropped by the East Wing, which held the offices for the first lady and her staff, a couple of times in the first term. She hasn’t been around much this term either.

Treasury Department employees, who work opposite the razing, were warned not to share pictures of it. There must be a sense that it’s profane, as it was in 1980 when Trump smashed Bonwit Teller’s limestone friezes, which he had promised to the Metropolitan Museum of Art, to build Trump Tower. The friezes had little artistic merit, said a “vice president” of the Trump company, identified as “John Baron” — a fake name Trump used, he acknowledged while testifying in a lawsuit over his use of hundreds of illegal Polish immigrants for the demolition.

But Trump has so little respect for this 123-year-old symbol of American history that he didn’t check with federal planning officials or Congress before he obliterated one side of the White House. As if he’s tearing down a gas station.

When I visited the White House with my mom as a kid, we loved overhearing foreign tourists ooh and ahh about how relatively small and modest the house was. Its simplicity was part of its charm. We didn’t have the grand castles of the European nobility we were trying to shed. It was just a nice house with good curb appeal.

Trump does not do small or modest. He does big, flashy odes to self. The joke when Trump was first running was that he’d slap his name on the White House facade as he did with all his other properties. And now it’s happening. White House officials are saying Trump will name the ballroom after himself.

It’s another example, as Rahm Emanuel says, that Trump wants to rule, not govern.

“He believes that the only thing you can do wrong is that which is not in your self-interest,” Axelrod said.

The president has the kind of blot-out-the-sun narcissism that spurs him to do whatever it takes to keep all eyes on him. He ignores the law, procedures, consequences.

It’s a slam-dance presidency that delights in transgressing and provoking.

Build a $300 million, 90,000-square-foot gilt ballroom — which will overshadow the central edifice — while the government is shut and people have been thrown out of work; plaster tacky gold all over the Oval; sue everyone willy-nilly; put foes through legal torture; send troops to American cities; shrug off due process and blow alleged drug runners out of the water.

“I think we’re just going to kill people that are bringing drugs into our country, OK?” he said Thursday. “We’re going to kill them.”

Trump’s talent is finding wormholes in the system that he can exploit for his own satisfaction or financial gain — things that are not specifically outlawed because it never occurred to the founders or anyone else that a lowlife could rise so high.

Bloomberg’s Tim O’Brien wrote that in seeking private funding for the ballroom, Trump may encourage influence-peddling — grifting off the presidency even more.

After turning the Justice Department into his own vigilante posse, Trump now wants to warp the once-esteemed department even more. He has made a cockamamie demand that Justice give him $230 million as compensation for previous federal investigations of him. The Times editorial board called it “a breathtaking act of self-dealing.”

Trump once thought nothing of aiming to overthrow the government he ran. Now he thinks nothing of threatening to sue the government he runs if he isn’t allowed to pay himself a quarter-billion dollars.

“We the People” is quaint. Now we are governed by the whims of one person.

Trump stopped trade talks with Canada on Friday because he did not like an ad commissioned by the province of Ontario that quoted from a radio address President Ronald Reagan made that criticized tariffs.

Trump, who posts fake A.I. slop, called the ad “FAKE.” (Reagan’s quotes were accurate but were in a different order.) The Canadians paused it.

It was like when Trump levied a 50 percent unilateral tariff on Brazil because it had the temerity to prosecute Jair Bolsonaro, who also tried to steal an election when he was president. Or when Trump mused about bailing out his right-wing ally in Argentina, potentially to the tune of $40 billion, and promised to quadruple the amount of Argentine beef allowed into this country at a lower tariff rate — infuriating struggling American ranchers.

Trump can indulge any crazy impulse and nobody is able to check him.

“The Congress is adrift,” Senator Lisa Murkowski told The Times’s Carl Hulse, on overseeing Trump’s legally questionable military moves and vindictive tariffs. “It’s like we have given up. And that’s not a good signal to the American public.”

Congress is adrift. The White House is a shipwreck. Trump is marauding in the Caribbean. James Comey and Letitia James are being forced to walk the plank, and next up could be Jack Smith and Adam Schiff.

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The President is getting away with murder, literally

During his first presidential campaign Donald Trump famously claimed that he could “stand in the middle of Fifth Avenue and shoot somebody” and not lose any voters. At the time it felt like an empty boast. No more, writes David Cole in The New York Review of Books.

Between September 2 and September 19 the US military, acting on President Trump’s orders, bombed three boats traveling in international waters, reportedly killing seventeen civilians in cold blood. Ordinarily when US armed forces kill civilians, the president does not brag about it, yet Trump is apparently so proud of the executions that he posted video footage of them on Truth Social. And while ordinarily the killing of any civilian prompts investigations and apologies, in this instance the administration has promised only that there are more to come. “To every terrorist thug smuggling poisonous drugs into the United States of America,” Trump said during his speech at the UN General Assembly on September 23, “please be warned that we will blow you out of existence.”

There was no conceivable legal authority for these killings. We are not at war with drug traffickers. The “war on drugs” is a metaphor, not a legal term of art that authorizes killing the “enemy.” The human beings on these boats were civilians, and even if there were an actual war going on, the laws of war prohibit targeting civilians unless they are directly engaged in hostilities. Even if the boats’ occupants were, as the administration alleges, carrying illegal drugs, that offense would at most have authorized their arrest, trial, and, if convicted, incarceration for a period of years. It would not authorize the death penalty, much less their summary execution without trial.

Trump has called the dead “narcoterrorists” and has asserted that the eleven killed in the first strike were associated with the Venezuelan gang Tren de Aragua, a “foreign terrorist organization.” But that designation authorizes only economic sanctions against the group, such as freezing their assets, and criminal penalties against Americans who do business with them. It does not authorize any use of military force, much less the intentional lethal targeting of civilians.

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Condemned Alabama man's final words 'I didn't kill anybody'

The 40th Execution of 2025

An Alabama man, Anthony Boyd, convicted of helping to burn a man alive in 1993 over a $200 drug debt was executed by nitrogen gas on October 23, 2025, reported The Associated Press.

Anthony Boyd, 54, was pronounced dead at 6:33 p.m. at William C. Holman Correctional Facility, authorities said. The execution was carried out by nitrogen gas, a method Alabama began using last year. Boyd was sentenced to death for his role in killing Gregory Huguley in Talladega County. Prosecutors said Huguley was set on fire after he didn’t pay for $200 worth of cocaine.

Boyd used his final words to proclaim his innocence and criticize the criminal justice system.

“I didn’t kill anybody. I didn’t participate in killing anybody,” he said.

“There can be no justice until we change this system,” he continued. He said he wanted to express love to those who are still fighting, before closing with, “Let’s get it.”

The execution appeared to take longer than prior nitrogen gas executions. The state does not reveal the exact time the gas began flowing.

At about 5:57 p.m. Boyd clenched his fist, raised his head off the gurney slightly and began shaking. He then raised his legs off the gurney several inches. At about 6:01 p.m. he began a long series of heaving breaths that lasted at least 15 minutes, before becoming still. The curtain closed to the execution chamber at 6:27 p.m. The prison commissioner said the gas is kept flowing for five minutes after monitoring shows the inmate no longer has a heartbeat.

A prosecution witness at Boyd’s trial testified as part of a plea agreement and said that Boyd taped Huguley’s feet together before another man doused him in gasoline and set him on fire. Defense lawyers said he was at a party on the night Huguley was killed and the plea deal testimony was unreliable.

A jury convicted Boyd of capital murder during a kidnapping and recommended by a vote of 10-2 that he receive a death sentence.

Alabama Attorney General Steve Marshall said in a statement that the state “remains steadfast in its commitment to uphold the law and deliver justice for victims and their families.”

“For more than 30 years, Boyd sought to delay justice through endless litigation, yet he never once presented evidence that the jury was wrong,” Marshall said.

Boyd had been on Alabama’s death row since 1995. He was the latest chair of Project Hope to Abolish the Death Penalty, an anti-death penalty group founded by men on death row.

Alabama began using nitrogen gas last year to carry out some executions. The method uses a gas mask strapped over the inmate’s face to replace breathable air with pure nitrogen gas, causing the person to die from lack of oxygen.

Nationally, the method has now been used in eight executions: seven times in Alabama and once in Louisiana.

The state and Boyd’s spiritual adviser gave conflicting accounts of what happened in the execution chamber.

The Rev. Jeff Hood stood by Boyd as he died. He was also at the first nitrogen gas execution.

“This is the worst one yet,” Hood said. “I think they are absolutely incompetent when it comes to carrying out these executions.” He said Alabama had promised nitrogen was a “quick, painless, easy form of execution and this is by far nothing anywhere close to that.”

Hood said he believed Boyd planned to try to communicate through leg movements. Hood said he believed “some level of consciousness, in my opinion, for at least 16 minutes.”

Alabama Corrections Commissioner John Hamm said he believed Boyd’s shaking and other movements were involuntary.

He said while the execution took longer than previous ones, it was “just a few minutes past some of the others.”

Boyd’s lawyers had asked a federal judge to halt the execution to give the method more scrutiny. A federal judge declined the request. She ruled Boyd was unlikely to prevail on claims that the method is unconstitutionally cruel.

The U.S. Supreme Court on Thursday afternoon also denied Boyd’s request to stay the execution and to instead let him die by firing squad. Justice Sonia Sotomayor authored a scathing dissent joined by Justices Elena Kagan and Ketanji Brown Jackson.

Sotomayor, citing witness descriptions of past nitrogen gas executions, wrote that there is “mounting and unbroken evidence” that the method is unconstitutional. She wrote that “allowing the nitrogen hypoxia experiment to continue” fails to protect the dignity of the nation.

Alabama has maintained that any shaking or gasping exhibited by inmates during nitrogen gas executions are largely involuntary actions caused by oxygen deprivation.

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Mangino discusses death of teen connected to D4vid with Jesse Weber on Law & Crime's Sidebar

To watch the interview CLICK HERE

Mangino discusses Pennsylvania conviction on Law & Crime Network

My interview with Chris Stewart of Law & Crime Network about the first degree murder conviction of Michael Dutkiewicz in Montgomery County, Pennsylvania. 

To watch the interview CLICK HERE

NYT: The abdication

A must read: Carl Hulse, chief Washington correspondent for The New York Times writes: 

By almost any measure, Congress is failing. And flailing.

The government is shut down for the 23rd day; many federal workers aren’t getting paid, agencies and museums are closed, and top lawmakers are making no serious effort to resolve the impasse. Congressional staff members have begun referring to themselves as volunteers. The House has not voted since Sept. 19, and Speaker Mike Johnson won’t call members back. He has refused to seat a new Democratic member from Arizona one month after her election victory.

As the Trump administration shifts billions of dollars around to take care of its priorities during the shutdown with scant input from lawmakers, ignoring Congress’s clear constitutional supremacy over the power of the purse, Republicans in control have done nothing to push back. Nor have they exercised oversight of President Trump’s legally questionable military moves off the coast of Venezuela, his imposition of tariffs or anything else that has challenged the authority of their beleaguered institution.

“The Congress is adrift,” said Senator Lisa Murkowski, Republican of Alaska. “It’s like we have given up. And that’s not a good signal to the American public.”

No leverage

Trump and his aides have usurped congressional power with little G.O.P. resistance. In many instances, House and Senate leaders have willingly ceded their prerogatives and cheered on the president. The Constitution gives Congress responsibility for levying tariffs, and Trump’s may hurt rural America, but the Republicans who represent it have been mainly silent.

The same goes for the administration’s operations against alleged drug runners from South America. Despite bipartisan support for sanctions on Russia, Republicans reversed course and delayed action because of mixed signals from Trump. He seemed willing to restrain Moscow, then pulled back, then finally imposed sanctions unilaterally yesterday.

Trump himself suggested this week that Congress had little left to do after passing its sweeping domestic policy and tax measure. “We don’t need to pass any more bills,” he told Senate Republicans at the White House on Tuesday. “We got everything in that bill.”

Trump and his Republican allies have steamrolled Democrats this year. Now Senator Chuck Schumer, Democrat of New York and the minority leader, is employing what little leverage Democrats have by denying Republicans the 60 votes they need to pass a short-term spending bill to fund the government. They want Republicans to extend health insurance subsidies and help millions avoid big premium increases.

But Republican leaders have made it clear that they view their role as subordinate to the president, saying they won’t open talks with their Democratic counterparts unless Trump allows them to do so. And he’ll sign off “as soon as Schumer reopens the government,” the speaker wrote on social media.

Balance of powers

There are evidently some limits to what Congress will swallow. Republicans this week pressed the White House to withdraw the nomination of Paul Ingrassia to head the Office of Special Counsel after Politico disclosed racist texts he had sent.

Senate Republicans also raised the alarm on behalf of cattle ranchers after Trump suggested that he might increase imports of Argentine beef to bolster markets there. The administration showed signs of heeding their calls.

But the funding impasse now has top Republicans talking about a yearlong extension of current federal spending, instead of a new budget. That would further undermine Congress’s authority, shifting the power to shape spending from the once formidable Appropriations Committees to the White House and its budget director, Russell Vought.

At a White House luncheon with G.O.P. members of Congress on Tuesday, Trump celebrated Vought as “Darth Vader,” for the fear provoked by the man behind the administration’s drive to strip spending power from Congress. “You’re doing a great job, I have to tell you,” Trump told Vought.

Then Senate Republicans applauded the man eager to render them irrelevant.

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