Is ICE evolving into a masked domestic military force?

Six months into the second Trump administration, two things are becoming clear: First, the president remains a nearly entirely non-strategic actor, motivated only by an abiding desire to accumulate ever greater power, adulation, and wealth. And second, he’s fundamentally changing the nature of the United States in ways that threaten to bring an end to the nation’s 249 year old status as the world’s leading democracy, reported Public Notice.

Despite Trump’s consistently haphazard “governance” style, it’s becoming easy to foresee how his regime could effectively void our democracy. The now fully MAGA-fied GOP is increasingly likely to lose the next presidential election after incurring bracing losses in the midterms and other intervening state races. And as the nation learned before and following the 2020 election, Trumpists are more than willing to use force and other extra-legal actions to attempt to cling to power.

For Trump and his cronies, the prospect of losing power — or even sharing it with Democrats in the event control of the House shifts in 2026 — could prove to be catastrophic because of their reasonable fear of being held accountable for criminality that dwarfs Trump’s first term. And unlike January 2021 — when the Big Lie scheme failed — Trump and his cohorts will have new tools to carry out a coup, including a massive federal police force with a proven willingness to engage in systemic illegality.

Trump’s brownshirts

From its outset, Trump 2.0 has been grounded on systemic illegality and unilateral executive actions, a course of (mis)conduct the administration has succeeded in pursuing because of pliant GOP majorities in Congress the Supreme Court. It’s all but certain that the administration’s authoritarian conduct will grow in scope and intensity over the succeeding months, in no small part because the GOP reconciliation bill will hand over a staggering $170 billion to the Department of Homeland Security.

The bill includes nearly $30 billion in new “enforcement” funds. DHS boasts that it is already the largest federal law enforcement agency, with over 80,000 officers spread across nine organizations. But DHS says it plans to use the new funding to quickly hire 10,000 more more ICE thugs. And in recent months, DHS Secretary Kristi Noem has systematically dismantled DHS’s oversight offices, thereby paving the way for a lot of corner cutting.

The bill also includes $45 billion for expanding detention facilities comprised of both government and privately contracted facilities, meaning DHS is working with a jail budget that far exceeds that of the federal prison system.

With this infusion of cash, the US for the first time will have a massive federal police force with its own rapidly growing concentration camp system, with a reach that extends directly into the nation’s largest states and municipalities, potentially displacing local governance in critical respects.

We do not have to wait to find out how ICE and other agencies will conduct themselves within the US, and particularly in blue states and municipalities with Democratic (and demographically diverse) populations. Just look at what began as a quasi occupation of LA County and has now expanded to encompass large swathes of the state of California. There, the new ICE is focused on creating a state of fear and uncertainty among entire communities, including with militarized assaults on workplaces, complete with chemical munitions.

Last week, for example, a phalanx of masked ICE thugs marched into LA’s MacArthur Park, smack in the middle of one of the city’s largest Hispanic communities, accompanied by California National Guard troops that Trump had dragooned over the governor’s objection.

After parading around MacArthur with assault rifles and other military paraphernalia that served no apparent purpose, the invading force retreated.

Also in recent days, masked and heavily armed thugs have descended upon such dangerous locations as farms at harvest time and car body shops, where they have used force, and in some cases beaten, immigrants and citizens alike.

With his mélange of ICE, FBI, DEA and — importantly — military agents and troops, Trump has finally succeeded in creating what he longed to establish during his first term: A huge, domestic militarized force answerable only to him and his cronies.

The nation has never had a national police force, let alone a lawless one that’s singularly committed to the political agenda of the president. While the rapidly growing ICE force is not yet operating as an authoritarian arm of a dictatorship, it is more than plausible that it could be transformed into that type of Gestapo-like “law enforcement” entity, as Thor Benson has argued.

In that regard, Trump has recently spoken about taking over one or more major cities, including New York, asserting that they need to be “straightened out.” While such Trumpian musings are dismissed by some, they must be viewed in the context of what amount to ongoing militarized invasions of several such municipalities.

Unpopular populism

Trump is frequently described as a “populist” leader, but few pundits address the definition of the term. Hitler and Mussolini were populists who took power without democratic mandates and quickly destroyed institutions. Likewise, there’s every reason to expect that Trump and his crew will attempt another coup given the increasing likelihood they’ll have a hard time winning again in free and fair elections.

While Trump did win the popular vote last year, his victory was narrow, and his popularity began to slide immediately after he took office. A current average of polls indicates he’s disapproved by around 52 percent of voters and approved by 44 percent. This is a near reversal of where Trump stood in January, when he (briefly) had net positive approval rating. Also, Trump’s approval on immigration, his signature issue in the 2024 race, has taken a huge tumble into negative territory, with as many as 51 percent of voters disapproving the gratuitous brutality and performative sadism they’ve witnessed in recent months.

Trump is losing the most ground with the independent voters who often determine the outcome of elections — his current disapproval rate among this critical cohort is nearly 61 percent. Likewise, his approval rating among Hispanic voters, who played a key role in the GOP’s success last year, has descended from negative two in February to as low as negative 26. All of this is predictably leading to a corresponding decline in Trump’s approval rating in several of the swing states that allowed him to prevail last year in the Electoral College.

Given that midterm elections are increasingly referendums on the party in power — and considering that the GOP has devolved into little more than a personality cult — it’s all but certain that the 2026 midterms (assuming they are remotely free and fair) will be determined by the electorate’s souring view of Trump’s governance. There’s also increasing reason to believe that voters’ opinions of Trump’s regime will be even more negative by November 2028, when the GOP presidential nominee will almost certainly run as Trump’s anointed successor. That’s because the policies Trump is pursuing are both increasingly unpopular and wildly destructive.

Trump talked a big game on the campaign trail about lowering costs for consumers. Instead, his economic “policies” have focused nearly exclusively on two areas: an increasingly irrational and likely illegal tariff regime, and the expansion of tax cuts heavily favoring the very rich (paid for in part by slashing healthcare coverage and food support for low-income people). Both of these were centerpieces of the regressive reconciliation bill he signed into law earlier this month.

A major midterm loss is hardly unusual for a president, particularly one in his final term in office. After Trump’s unpopular 2017 tax cuts and his failed effort to repeal the ACA the following year, the Republican Party (especially House Republicans) took a drubbing in the 2018 midterms. If, as seems increasingly likely, the economy is in a downturn a year from now, Republican losses in November 2026 could be even worse. Particularly if the midterms turn out badly for the GOP, Trump and his cronies will inevitably begin to fear the consequences of a loss at the polls in the next presidential election and to consider their options.

Given the already massive scale of criminality in the Trump regime from the White House on down, Trump and all of his cronies have even more reason to be concerned about the prospect of being held to account. Additionally, as Anne Applebaum recently observed, Trump’s massive expansion of executive powers will make the prospect of a Democratic president all the more frightening for the members of the administration. They will have every reason to expect that a Democratic successor to Trump in the White House will use the newly enhanced powers of the office to hold Trump and company accountable in ways they didn’t during the Biden years. Against that backdrop, Trumpers may consider ensuring the victory of Trump’s designated successor in 2028 to be essential as a matter of self-preservation.

As anyone who lived through January 6 remembers, Trump and his cronies have already shown themselves willing to attempt to hold on to power illegally. More recently, by pardoning the J6 insurrectionists en masse, Trump took a major step toward legitimizing right-wing coup schemes, much as Hitler rendered his failed Munich putsch into an event worthy of annual celebration.

 Therefore, it is not only possible, but must be viewed as likely that in the wake of an 2028 electoral loss, Trumpists will take every step available to them to maintain control of the White House — including, if necessary, illegal ones.

But by then, Trump and his crew will have new tools at their disposal, including a beefed up ICE that will include large phalanxes of masked thugs who are experienced in using violence at the president’s behest. Thus, if the time comes for Trumpers to effectuate yet another post-election coup, they will have a ready and willing militarized federal police force to back them up and will not have to rely on a ragtag array of right-wing tourists.

While many are currently rightly concerned about the impact Trump’s brutal “immigration crackdown” will have on undocumented persons, the danger of his creation of a massive, non-law-abiding federal police force could extend far beyond the immigration. Congress has just handed the coup leader in the White House new, dangerous tools that he and his cohorts could use in their next attempt to overturn the nation’s democracy once and for all.

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Lawyers are the target of intimidation in effort to chill representation of government employees

Thomas Edsall writes in The New York Times:

With Trump back in the White House, each new week produces an onslaught of radical policy initiatives.

In an essay posted on Substack, Stephen I. Vladeck, a law professor at Georgetown, described a sequence — running from Feb. 21 to Feb. 27 — of what are in effect warnings designed to intimidate and even silence the nation’s legal community.

There is Secretary of Defense Pete Hegseth’s Friday night sacking of the senior military lawyers in the Army, Navy, and Air Force — lawyers who, by law, are required to provide ‘independent legal advice’ to the Pentagon’s civilian and military leaders. There is President Trump’s revocation of security clearances for all of the lawyers at Covington & Burling who were in any way involved in pro bono representation of Special Counsel Jack Smith once he left government service (and Trump’s ominous suggestion, captured in the video in which he signed the revocations, that ‘you’re going to do this with more firms, right?’). There is the threat by interim D.C. U.S. attorney Ed Martin that Covington faces a criminal investigation for its representation of Smith.”

Vladeck explained the significance of these developments:

What the Trump administration is doing is not just about specific lawyers representing unpopular clients, but is rather far more ominous: The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is.

That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them — such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.

In addition to revoking the security clearances, Trump wrote in a Feb. 25 memorandum, “I also direct the Attorney General and heads of agencies to take such actions as are necessary to terminate any engagement of Covington & Burling LLP by any agency to the maximum extent permitted by law and consistent with the memorandum that shall be issued by the director of the Office of Management and Budget.”

The effects of the Trump administration’s initiatives soon become apparent. On Feb. 26, Bloomberg reporters Ben Penn and Tatyana Monnay described some of the reverberations of the Trump edict in “Covington Revenge Deepens Worries of Defending Trump Targets.”

“Some firm leaders,” they wrote, “citing corporate clients threatening to walk if they get crosswise with Trump, have rejected outright or put up roadblocks to partners seeking approval to represent D.O.J. lawyers, F.B.I. agents, and other civil servants who’ve faced various forms of attack.”

Penn and Monnay reported that their sources told them that

Individual attorneys want to enter what they see as a nonpartisan battle to preserve democracy by filing merit systems complaints for terminated federal employees, representing Jan. 6 prosecutors under investigation from D.O.J. and Congress, or participating in litigation to halt Trump policies. Firms’ senior decision makers, however, agonize about the sustainability of representing current and former government employees opposite the administration.

It’s not just the left and the center that finds the administration’s policies disturbing:

Walter Olson, a senior fellow at the libertarian Cato Institute, warned in a Feb. 26 essay, “Trump Punishes Large Law Firm for Representing His Adversary,” that the president’s actions threaten “the loss of an independent and qualified bar willing to stand up to authority.”

The implications of the revocation of security clearances, Olson continued, “go far beyond the practice of national security law. Anyone can find themselves in a fight with Trump or his allies on almost any topic under the sun, and the question is whether the counsel representing you in that dispute has to fear being made the next Covington.”

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Meet the resistance: 23 Democrat Attorney's General taking on Trump

 The resistance meets daily on Microsoft Teams.

The country’s 23 Democratic state attorneys general log on at 4pm ET for a thirty-minute confidential video chat to coordinate their plans for pushing back against the Trump administration, reported Politico. They share updates on the seven cases they have moving through federal courts and argue about whether to treat Elon Musk as a lawful arm of the government or an uncredentialed interloper to it. They plot where to respond next, leveraging timezone differences to expand the workday.

The American left has floundered during Trump 2.0. The mass protests of 2017 have not emerged, and donors to progressive causes are not giving the way they did then, either. Democratic congressional minorities have been cowed by Trump’s assertions of executive power, while many of the governors who stand as their party’s leading figures are cautious about provoking fights with the president. In confronting Trump, elected officials have largely yielded to labor unions and advocacy organizations.

Then there are the attorneys general, who see themselves as the last backstop between the people and the president. Their multi-state lawsuits have temporarily stopped the president from revoking birthright citizenship, freezing federal funding and cutting off money for medical research. This week, they filed their sixth amicus brief in an action against the Trump administration, with 23 attorneys general signing on to argue the importance of the Affordable Care Act. The US Department of Justice declined a request for comment on that suit, or others it is defending.

“Right now in the United States, the Democratic AGs are the only group of people who are united and working to prevent some of these unconstitutional actions from continuing,” Hawaii attorney general Anne Lopez boasted in an interview.

Their work reflects an upgrade from Trump 1.0, when Democratic state officials collaborated but in an improvised, reactive fashion, with plaintiffs sometimes coming together with only a few hours’ notice. They notched key legal victories then, but were driven by caution as they feared undermining each other’s cases with conflicting rulings in different courts.

This year, the attorneys general are executing on a plan they worked to develop for a year before Trump’s return to the White House, according to interviews with more than half of the Democratic attorneys general, former holders of the office and their staff. Coming together to respond to Trump’s policy blitzkrieg after it began, they say, would have represented coming together too late.

For many of them responding to Trump has become a full-time job, on top of their other constitutional duties. All worry they will need to ask their legislatures for money and more muscle to keep up their national work against Trump without compromising the other work they do investigating Medicaid fraud or suing tobacco companies.

“We talk each and every day these days, and you’d think we start to get tired of it, but we’ve just grown closer over time,” said Kathy Jennings, Delaware’s attorney general. “And in the next four years, we’re going to grow very close.”

The brief bank

Bob Ferguson jotted down notes as his car navigated the streets of Seattle, the hometown where he worked at a large corporate law firm before embarking on a political career. Ferguson had attended Democratic Attorneys General Association meetings all over the country, typically upbeat events swarmed by lobbyists eager for face time with some of the country’s most powerful state-level law-enforcement and regulatory officials.

The February 2024 meeting represented a special moment for Ferguson as he began the final year of his third term as Washington’s attorney general. He was running for governor and, win or lose, would depart his office as the country’s last surviving Democratic attorney general from the start of Trump’s first presidency.

The host state’s attorney general is traditionally granted a speaking slot at the meeting, and Ferguson wanted to use his to deliver his colleagues a grave warning: They didn’t know what was coming.

He wandered the stage at the Grand Hyatt as he spoke, microphone in hand as he evoked the chaotic early months of 2017, when a rookie president’s stream-of-consciousness policymaking trampled on civil-rights protections and the separation of powers.

Even though the 2024 election was still nine months away, Ferguson implored them, it was past time to start preparing for the cases they would file if Trump returned to office. He recalled the work his office did throughout 2016, when Ferguson responded to Trump’s campaign-trail provocation about banning Muslims from entering the United States by prepping a constitutional challenge, just in case. When Trump did issue such an order a week into his term, Ferguson’s office was able to file a brief against the policy within three days.

“Whatever he is saying or articulating on the campaign trail,” Ferguson told the assembled attorneys, “assume he’s going to do it — no matter how outlandish it may be — and prepare for that.”

The speech was part pep talk, part lecture on appellate tactics. The most important guidance Ferguson had to share was about resources; attorneys general needed to begin now asking their states for the money to hire more lawyers, he insisted. They had to be prepared for January 20, because the president would be. Last time, Trump’s work was often sloppy, making for easier arguments. Don’t count on that this time around, he said.

A few attorneys general volunteered immediately to start doing research, drafting motions and working on arguments. They took broad issue categories back to their individual states — immigration, reproductive health, the environment, voting rights — and laid out the criteria they would use to distribute assignments throughout the year: Who has bandwidth? Who has expertise? Who is being harmed?

“There was going to be a need for coordinated action, making sure that we were not caught flat-footed,” said Maine’s Aaron Frey. “It allowed us to be thinking about what it is that was going to be important for our states.”

In Sacramento, Rob Bonta had been preparing to take on more national cases since 2022, when the U.S. Supreme Court overturned Roe v. Wade. A draft challenge to a potential federal abortion ban was filed in a “brief bank” that Bonta maintained in anticipation of hypothetical scenarios his office could one day face.

The brief bank grew after the Seattle meeting. Thinking in outlines, Bonta and his growing litigation staff worked out the subheads, the ways Trump could attack under each one: military interventions, budget maneuvers, revoking federal waivers and pulling payments.

Unlike Ferguson, who had had to speculate about what Trump’s campaign rhetoric might look like when translated into policy, Bonta and his colleagues had a roadmap. They studied Project 2025, a sprawling set of policy proposals from the conservative Heritage Foundation that would dramatically re-envision the federal government.

The state attorneys general — including from the District of Columbia — began speaking weekly throughout the summer and fall to update one another of their progress, using the time to order their priorities and determine the limitations of their powers.

“I think there was a collective recognition that we wanted to approach things differently,” said Rhode Island’s Peter Neronha, who caught the last two years of Trump’s term and has served as attorney general since. “We knew we would have to come up with a process by which everyone could and would participate.”

Democratic attorneys general didn’t invent multistate suits. Bipartisan collaborations have been a staple of attorneys general’s work going after tobacco companies, opioid manufacturers and social media companies.

Recently they have become a favored tool for state officials banding together on partisan lines to take on a president of the other party. Democratic attorneys general from 11 states, Washington DC and two cities signed onto a Massachusetts-initiated suit against George W. Bush’s administration over its approach to carbon emissions. Republican attorneys general from 25 states joined a Florida-led challenge to Barack Obama’s Affordable Care Act. (Both cases ultimately reached the U.S. Supreme Court.)

Having all the states hop on the same case makes it easier to show a national impact, and make the case for a national solution, said David Levine, a professor at UC Law San Francisco. “You don’t run the risk that you get different outcomes in different courts that need to be litigated even more,” Levine said.

Even though Democrats recognized the wisdom of joining forces to oppose Trump in 2017, the 23 members of the party who occupied attorneys general offices were not well-organized to do so. Sometimes they banded together by the dozen, sometimes going out alone or in groups of two or three.

“It was more ad hoc than I think it is today,” said George Jepsen, Connecticut’s attorney general during the first Trump presidency.

When Trump issued his ban on travel from seven majority-Muslim countries, three different lawsuits emerged from attorneys general. Washington and Minnesota filed a case challenging the first order, Hawaii followed with a second lawsuit once Trump amended his first travel ban, while Virginia and New York intervened on behalf of individuals who had been blocked at airports.

“It was very reactionary and stressful, we were seeing these orders coming out and trying to get on the phone and figure out what the heck everybody was going to do, “ said Hawaii’s former Attorney General Doug Chin.

“The fear was that — and I remember it being expressed back then — was that we had to think very hard about each one, because we didn’t want a ruling that would somehow box in everyone else.”

By summer, they had established a framework for developing multistate suits they could all get behind. They had figured out who had the most experience in which courts, and which venues could be the best to file in.

“I guess one of the good things about the summer slumps,” Maine’s Frey said. “We had time to get ready and figure out how we’re going to work together, figure out how we can maximize resources.”

Where Project 2025 was specific, they prepped tailor-made cases that all the states could sign onto. Where it was vague, they read up on the arguments that had been successful in impeding Trump’s first-term agenda.

Early work was divided by who could afford to work on it. In many cases, that meant the heavy lifting fell upon California’s 5,600-person staff and New York’s 2,400, including 700 just as assistant attorneys general.

Lawyers were polishing a brief on birthright citizenship even before Trump was sworn in. The states decided to invite San Francisco to join as a litigant to harken back to Wong Kim Ark, a native of the city’s Chinatown whose 1898 Supreme Court appeal affirmed that 14th Amendment applied to anyone born in the United States.

By November, the brief bank was bulging, occupying ever more time for government lawyers from Augusta to Honolulu. New Jersey Attorney General Matthew Platkin asked his department’s lawyers if they wanted to help with pre-election preparation, knowing that their work could be rendered irrelevant if Kamala Harris ended up victorious.

“I said, ‘This is purely volunteer, nobody has to do this, we can’t pay you any more,’” he recalled recently. “Over fifty lawyers signed up not knowing who was going to win that election, because they were so concerned.”

On Election Night, Bonta emerged from a half-empty ballroom in a downtown Los Angeles hotel where California Democrats had hoped to fête their native daughter winning the White House.

Instead, as dejected lawmakers and labor leaders streamed into the hallway, Bonta’s mind turned to the year’s worth of planning he had hoped would “gather dust” after a Harris win. He and his colleagues, he said, had strategized down to the detail of which courts to file in, the virtues of facing state versus federal judges, and how to ensure their cases would have standing to take on Trump.

“If he violates the law — as he has said he would, as Project 2025 says he will,” Bonta said, “then we are ready.”

Time to file

On Inauguration Day, executive orders came flying off White House shelves by the dozen. They directed the federal government to make it easier to drill on federal lands, withdraw from international agreements, end diversity programs, change the legal definition of sex and alter the names of geographical features.

Among the attorneys general, there was a sense of shock at the speed with which he moved and how reckless some of the orders seemed. But they also knew they had spent the past year “trying to map out a list of areas where we might see massive policy changes and things that are illegal,” said Nick Brown, who in November was elected to succeed Ferguson as head of Washington’s attorney general’s office.

They spoke every few hours that day, divvying up lawsuits by who had standing, who had expertise, who had staff. If a brief had already been started, what’s the latest? Where would they file? Who is writing the press release template?

“As you can imagine, everybody is the chief legal officer of their respective state, so everybody is used to being in charge,” said Illinois Attorney General Kwame Raoul. “When you’re working collectively on something there’s a desire for everyone to have a leadership role, but you have to put that aside sometimes in the interest of working together.”

One day later, they filed their first two cases. In Massachusetts, 19 states delivered their well-planned response to a Trump order denying citizenship to the children of illegal immigrants.

It springboarded off cases from the last Trump administration, where attorneys general successfully stopped Trump’s attempts to change census and asylum policies by arguing it was a breach of the Administrative Procedure Act.

“They had a way to articulate what the state’s interest was, because that’s the main hurdle you have to get over,” said Levine, who now teaches the case in his law-school classes. “You can’t just sue because you don’t like what he’s doing.”

Hours after that, Oregon, Arizona and Illinois filed their own suit in Washington, which would later include three pregnant mothers who feared their children would be born stateless, another way to show the harm of the order.

“It wasn’t any strategic thing,” said Illinois’ Attorney General Kwame Raoul, who filed in the West Coast group. “It happens sometimes, where one AG may want to file in their state for a particular reason and another group may do it elsewhere. We’re trying as much as possible to minimize that and work together.”

On January 27, Trump’s Office of Management and Budget issued a temporary government-wide funding freeze across the board, sending state and local programs into chaos. The attorneys general had not predicted the memo’s specifics, but had spent the prior year getting language ready for when Trump’s actions inevitably bumped up against Congress’s power of the purse.

“We had to get that filed quickly, so we leveraged the West Coast offices,” said Rhode Island’s Neronha. “It’s only a 24-hour day, but when you’re working overnight, you get three extra hours when you can get the West Coast teams online and our folks can get a little sleep.”

A day later, all 23 states filed a suit in Rhode Island to block the memo’s implementation, using the same separation-of-powers argument successful in 2020 when the Ninth Circuit Court of Appeals prevented Trump from redirecting Pentagon funds for border-wall construction. Only Congress, the attorney generals’ brief argued, had the power to appropriate money.

Democratic state officials were not the only plaintiffs emerging to sue the new president. The AFL-CIO challenged Trump’s changes to the civil service, the ACLU to protect access to gender-affirming care, and the City of Baltimore over the shuttering of the Consumer Financial Protection Bureau. The attorneys general followed days after each suit with supportive amicus briefs signed by 23 states.

But states are in a unique position unavailable to labor unions and outside groups. Their suits are essentially class-actions on behalf of all their constituents, informed by the full range of concrete harms only a state government is positioned to document. On February 10, 22 of the states sued over cuts to the National Institutes of Health. It was filed in Massachusetts, but is filled with details on which programs at the University of Wisconsin are being the most impacted.

“Making sure that information is being included and considered as part of these cases is what I see as sort of a key role for us and for other states,“ said Wisconsin’s Attorney General Josh Kaul.

Ferguson and other veterans of the Trump 1.0 suits had warned their successors to gird for chaos. Few of them, however, expected that chaos would come at the hands of a techo-mogul with a hyperactive social media feed and seemingly unfettered access to the inner workings of the federal government.

“Who could predict that this billionaire, the richest man in the world, comes in out of nowhere and gets the blessing of the president to go into our institutions and invade people’s privacy?” Jennings told reporters in February.

Pushing back on the Department of Government Efficiency’s actions required the attorneys-general to agree on a shared view of Elon Musk. Should they treat him as a mouthpiece for the president, giving them another way to go after Trump? Or was Musk acting in a way that violated the law himself?

By mid-February, the states had decided to work both angles at once. One coalition led by New York sued Trump, accusing the Department of Government Efficiency of violating citizens’ privacy. Days later, a second group led by New Mexico went after Musk himself, for wielding too much power for someone who was never confirmed by the Senate.

“It’s important that individuals understand that there are co-equal branches of law that need to be respected, and that states, again, have a unique responsibility to ensure that the Constitution is followed,” New York attorney general Letitia James said ahead of a hearing in the privacy case.

The attorneys general were encouraged to see Musk’s influence animating the general public in a way few other issues had in the flood-the-zone early days of Trump 2.0. Jennings said her office received more constituent phone calls voicing concern about DOGE than anything else in her six-year tenure.

“You ask the AGs and they’re going to tell you the same thing,” she said. “Our phones were flooded. This hit home to people.”

John Suthers, who as Colorado’s Republican attorney general joined in on a challenge to Obamacare while saying no to other multistate suits, said in their rush to file anti-Trump lawsuits Democrats could be falling victim to legal groupthink.

“A lot of these folks aren’t being good lawyers as opposed to good politicians,” Suthers said. “It’s probably great politics to be suing the president for waking up in the morning but it’s certainly not good law.”

The zoom where it happens

High above the schlocky tourist traps of Hollywood Boulevard, the Democratic Attorneys General Association convened this month for its first in-person confab since Trump’s inauguration. Attendees reveled in their early legal victories while navigating a marathon multi-day schedule of sessions on weighty topics like how to respond if Trump defied a court order.

Amid bleak talk of constitutional crises, the attendees’ mood was lightened by the easy familiarity of comrades that have bonded in trench warfare. They greeted each other with inscrutable inside jokes — which they declined to explain to an inquiring reporter — and praised their lesser-known talents, like the joke-telling skills of Michigan’s Dana Nessel, a former stand-up comedian, or the singing voice of Nevada’s Aaron Ford.

The good vibes came, in part, from seeing their colleagues out of the confines of a Zoom screen where they began meeting daily after Trump’s inauguration. Their staffs talk every day, as well, clearing up disagreements and fine-tuning strategy, to keep the calls from running over their scheduled thirty minutes. (The participants have a “common interest agreement,” where everything that is said is privileged and confidential. Outside groups, including those whose cases are backed by the states, are not invited to join.)

But there are fears nationwide about burning staff out, and sharing time and resources to avoid it. Behind every 50-page brief that makes it to federal court are hours and hours of time with lawyers and legal professionals to draft and research. Outside firms that were eager to volunteer pro-bono hours during Trump’s first term have largely kept their distance from the states’ efforts this time around.

Smaller states are expanding their operations to play a larger role in the litigation. In Olympia, the 850-lawyer staff is 50 percent bigger than it was when Ferguson started; he had added a civil rights division, environmental protection division and a complex litigation division to his office. In Annapolis, a new six-person “federal accountability unit” has been launched.

“The cavalry is on the way,” said Maryland Attorney General Anthony Brown. “I anticipate that Maryland will be taking a leadership role on more cases as soon as we have the bandwidth.”

To mount his suits, California sent Bonta an extra $25 million. Rhode Island’s Legislature gave Neronha more money to staff up. Attorneys general in Hawaii, Connecticut and elsewhere are hoping their lawmakers will tap state budgets, too.

“There’s no question our resources are being taxed, I’ve asked our Legislature for more,” said Colorado Attorney General Phil Weiser.

But it’s only the beginning. For now the attorneys general will keep trying to hire more lawyers, and go about the business of their states while they try to match each executive action they can with a suit of their own. They’re tending to the drafts in their brief banks but trying to play it close to the chest.

“So I think that preparation paid off,” said Ferguson, now Washington’s governor. “I think that that proved to be time well spent, because they’ve been able to, at this point, match the pace of the administration.”

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Law and Crime News: ‘Slipping into the clutches of an authoritarian’: Trump’s potential defiance of Supreme Court could lead to a full-blown constitutional crisis

Matthew T. Mangino
LAW AND CRIME NEWS
February 23, 2025

In this winter of political uneasiness, it is important to look back on Articles I, II and III of the United States Constitution.

High school civics class taught us that the first three articles of the Constitution established the structure of America’s government. Congress, the legislative branch, makes the laws of the United States; the Supreme Court — the judicial — interprets the laws; and the president — the executive — enforces the laws.

Each of the branches are coequal and provide a system of checks and balances. The Framers created this system to ensure that no branch becomes dominant. Each branch of government is vested with the ability to respond to the actions of the others.

The president can veto legislation created by Congress, as well as nominate heads of federal agencies and Supreme Court appointees. Congress confirms or rejects the president’s nominees. It can also remove the president from office in exceptional circumstances.

The justices of the Supreme Court, nominated by the president and confirmed by the Senate, can overturn unconstitutional laws.

For nearly 238 years this structure of checks and balances have held the “Great American Experiment” together, but the experiment has faced challenges in the past. Founding Father Thomas Jefferson, as president of the United States, was part of the first potential constitutional crisis when the Supreme Court in February 1803 decided the case of Marbury v. Madison, which established the principle of judicial review. Years later, in 1834, President Andrew Jackson, unhappy with a Supreme Court decision that favored Cherokee Indians in the region that would eventually become northern Georgia, is believed to have said of Chief Justice John Marshall: “[He] has made his decision; now let him enforce it.”

The Civil War saw the nation split in two. President Franklin D. Roosevelt decided to run for an unprecedented third and fourth term as president. In the 1950s, southern states defied the Supreme Court’s ruling against segregation in public schools. In more recent times, the country endured three presidential impeachments in 16 years.

Is America in a constitutional crisis today? Adam Liptak of The New York Times recently defined a constitutional crisis as “the product of presidential defiance of laws and judicial rulings.” Trump has signed more than 60 executive orders so far, the most in a president’s first 100 days in more than 40 years. As of this writing, Trump has been in office a little more than 30 days.

The orders, which Trump critics say greatly exceed his constitutional authority, range from tariffs on Mexico and Canada, to pauses on foreign aid and crackdowns on illegal immigration. Not to mention, bans on transgender people serving in the military or participating in athletics, revoking birthright citizenship, freezing federal spending, firing government employees who are subject to civil service protections and firing inspectors general — the government’s own watchdogs.

Saikrishna Prakash, a former clerk to conservative Supreme Court Justice Clarence Thomas who now teaches law at the University of Virginia told NPR, “The courts, you know, can issue orders and judgments, and, per the Constitution, I think the president is obligated to follow those orders and judgments. But, of course, there’s a practical question, which is how do you get someone to comply with the law?”

More than 10 federal courts have temporarily halted or rejected actions resulting from the new Trump administration’s actions. Last week, U.S. District Judge John McConnell found that the Trump administration has not fully followed his order to unfreeze federal spending and release billions of dollars.

However, statements by top Trump adviser Elon Musk and Vice President JD Vance appear to openly challenge judicial authority. The statements have raised concerns that the administration may ignore court rulings it opposes, reported the Brennan Center.

“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” Kate Shaw, a law professor at the University of Pennsylvania, told The New York Times.

In the first case to reach the Supreme Court in the wake of the onslaught of executive orders and actions taken within the first weeks of the new administration, lawyers for Trump have asked the justices to let him fire a government lawyer after a federal district judge ordered that the lawyer must be reinstated.

The Trump administration’s emergency application asked the high court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, the head of the Office of Special Counsel. Dellinger leads an independent agency charged with safeguarding government whistleblowers and enforcing certain ethics laws. The position is unrelated to special counsels, such as Jack Smith, appointed by the Justice Department.

The Supreme Court has a 6-3 conservative bent. If the court constrains the president’s authority to fire government employees, Trump’s potential defiance of the court’s ruling could lead to a full-blown constitutional crisis unlike anything the country has ever experienced.

But if the Supreme Court capitulates to the president, the crisis may be even more grave. With the GOP kowtowing to Trump and in the majority in both houses of Congress and the Supreme Court not imposing any restraints, this country may well be slipping into the clutches of an authoritarian.

(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)

This is an opinion piece. The views expressed in this article are those of just the author.

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A MUST READ: Maine Governor Mill's statement after challenging President Trump

 “I have spent my career — as a District Attorney, as Attorney General, and now as Governor — standing up for the rule of law in Maine and America. To me, that is fundamentally what is at stake here: the rule of law in our country.

“No President — Republican or Democrat — can withhold Federal funding authorized and appropriated by Congress and paid for by Maine taxpayers in an attempt to coerce someone into compliance with his will. It is a violation of our Constitution and of our laws, which I took an oath to uphold.

“Maine may one of the first states to undergo an investigation by his Administration, but we won’t be the last. Today, the President of the United States has targeted one particular group on one particular issue which Maine law has addressed. But you must ask yourself: who and what will he target next, and what will he do? Will it be you? Will it be because of your race or your religion? Will it be because you look different or think differently? Where does it end? In America, the President is neither a King nor a dictator, as much as this one tries to act like it – and it is the rule of law that prevents him from being so.

“I imagine that the outcome of this politically directed investigation is all but predetermined. My Administration will begin work with the Attorney General to defend the interests of Maine people in the court of law. But do not be misled: this is not just about who can compete on the athletic field, this is about whether a President can force compliance with his will, without regard for the rule of law that governs our nation. I believe he cannot.”

According to NPR, during remarks at a recent governors' event, Trump asked Maine Gov. Janet Mills if the state was going to comply with the order. Mills replied that she would comply with "state and federal law."

"Well, we are the federal law," Trump said. "You better do it, because you're not going to get any federal funding at all if you don't."

Mills then replied, "See you in court."

"Good, I'll see you in court," Trump said. "I look forward to that. That should be a real easy one. And enjoy your life after governor, because I don't think you'll be in elected politics."

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Trump seeks to rewrite the U.S. Constitution through executive order

 President Donald Trump signed an executive order on stating that only the “President and the Attorney General shall provide authoritative interpretations of the law for the executive branch,” reported Jurist. The order covers all federal employees and agencies, including independent agencies operating under the executive branch of the US government. Historically, independent agencies exist outside the executive branch and are largely free of presidential control.

The Trump administration stated the purpose of the order was to “ensur[e] that all federal agencies are accountable to the American people, as required by the Constitution.” According to the administration, Article II of the US Constitution vests this power in the president. They pointed to Article II, Clause 1, which states, “executive power shall be vested in a President of the United States of America,” to support this interpretation.

However, Article II does not expressly state that the president or any other person in the executive branch has the power to interpret laws. The article states that the president is required to “take care that the laws be faithfully executed.”

Jurisdiction to interpret laws and determine constitutionality belongs to the judicial branch under Article III. The framers of the Constitution designed the separation of duties to prevent any single branch of government from becoming too powerful.

Under the order, all agencies will be required  to submit to “performance standards and management objectives” established by the Office of Management and Budget and “report periodically to the President.” Only the Federal Reserve System and the Federal Open Market Committee are exempted.

Challenges to the order are expected.

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It’s a constitutional crisis when the president doesn’t care what the Constitution says

 Adam Liptak writes in The New York Times:

There is no universally accepted definition of a constitutional crisis, but legal scholars agree about some of its characteristics. It is generally the product of presidential defiance of laws and judicial rulings. It is not binary: It is a slope, not a switch. It can be cumulative, and once one starts, it can get much worse.

It can also be obvious, said Erwin Chemerinsky, dean of the law school at the University of California, Berkeley.

“We are in the midst of a constitutional crisis right now,” he said on Friday. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this.”

He ticked off examples of what he called President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections and threatening to deport people based on their political views.

That is a partial list, Professor Chemerinsky said, and it grows by the day. “Systematic unconstitutional and illegal acts create a constitutional crisis,” he said.

The distinctive feature of the current situation, several legal scholars said, is its chaotic flood of activity that collectively amounts to a radically new conception of presidential power. But the volume and speed of those actions may overwhelm and thus thwart sober and measured judicial consideration.

It will take some time, though perhaps only weeks, for a challenge to one of Mr. Trump’s actions to reach the Supreme Court. On Monday, a federal judge said the White House had defied his order to release billions of dollars in federal grants, marking the first time a judge has expressly declared that the Trump administration is disobeying a judicial mandate.

It remains to be seen whether Mr. Trump would defy a ruling against him by the justices.

“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” said Kate Shaw, a law professor at the University of Pennsylvania. “At least so far, it hasn’t been.”

 

That could change. On Sunday, Vice President JD Vance struck a confrontational tone on social media. “Judges aren’t allowed to control the executive’s legitimate power,” he wrote.

Professor Shaw said a clash with the courts would only add to a crisis that is already underway. “A number of the new administration’s executive orders and other executive actions are in clear violation of laws enacted by Congress,” she said.

“The administration’s early moves,” she added, “also seem designed to demonstrate maximum contempt for core constitutional values — the separation of powers, the freedom of speech, equal justice under law.”

Pamela Karlan, a law professor at Stanford, added that a crisis need not arise from clashes between the branches of the federal government.

“It’s a constitutional crisis when the president of the United States doesn’t care what the Constitution says regardless whether Congress or the courts resist a particular unconstitutional action,” she said. “Up until now, while presidents might engage in particular acts that were unconstitutional, I never had the sense that there was a president for whom the Constitution was essentially meaningless.”

The courts, in any event, may not be inclined or equipped to push back. So much is happening, and so fast, that even eventual final rulings from the Supreme Court rejecting Mr. Trump’s arguments could come too late. After the U.S. Agency for International Development or the Consumer Financial Protection Bureau are disassembled, say, no court decision can recreate them.

In many cases, of course, the Supreme Court’s six-member conservative majority may be receptive to Mr. Trump’s arguments. Its decision in July granting him substantial immunity from prosecution embraced an expansive vision of the presidency that can only have emboldened him.

Members of that majority are, for instance, likely to embrace the president’s position that he is free to fire leaders of independent agencies.

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Is it time to worry? 'A shadow government is conducting a hostile takeover'

A pitiless crackdown on illegal immigration. A hardline approach to law and order. A purge of “gender ideology” and “wokeness” from the nation’s schools. Erosions of academic freedom, judicial independence and the free press. An alliance with Christian nationalism. An assault on democratic institutions, writes David Smith of The Guardian.

The “electoral autocracy” that is Viktor Orbán’s Hungary has been long revered by Donald Trump and his “Make America Great Again” (Maga) movement. Now admiration is turning into emulation. In the early weeks of Trump’s second term as US president, analysts say, there are alarming signs that the Orbánisation of America has begun.

With the tech billionaire Elon Musk at his side, Trump has moved with astonishing velocity to fire critics, punish media, reward allies, gut the federal government, exploit presidential immunity and test the limits of his authority. Many of their actions have been unconstitutional and illegal. With Congress impotent, only the federal courts have slowed them down.

“They are copying the path taken by other would-be dictators like Viktor Orbán,” said Chris Murphy, a Democratic senator for Connecticut. “You have a move towards state-controlled media. You have a judiciary and law enforcement that seems poised to prioritise the prosecution of political opponents. You have the executive seizure of spending power so the leader and only the leader gets to dictate who gets money.”

Orbán, who came to power in 2010, was once described as “Trump before Trump” by the US president’s former adviser Steve Bannon. His long-term dismantling of institutions and control of media in Hungary serves as a cautionary tale about how seemingly incremental changes can pave the way for authoritarianism.

Orbán has described his country as “a petri dish for illiberalism”. His party used its two-thirds majority to rewrite the constitution, capture institutions and change electoral law. He reconfigured the judiciary and public universities to ensure long-term party loyalty.

The prime minister created a system of rewards and punishments, giving control of money and media to allies. An estimated 85% of media outlets are controlled by the Hungarian government, allowing Orbán to shape public opinion and marginalise dissent. Orbán has been also masterful at weaponising “family values” and anti-immigration rhetoric to mobilise his base.

Orbán’s fans in the US include Vice-President JD Vance, the media personality Tucker Carlson and Kevin Roberts, the head of the Heritage Foundation thinktank, who once said: “Modern Hungary is not just a model for conservative statecraft but the model.” The Heritage Foundation produced Project 2025, a far-right blueprint for Trump’s second term.

Orbán has addressed the Conservative Political Action Conference and two months ago travelled to the Mar-a-Lago estate in Florida for talks with both Trump and Musk. He has claimed that “we have entered the policy writing system of President Donald Trump’s team” and “have deep involvement there”.

But even Orbán might be taken aback – and somewhat envious – of the alacrity that Trump has shown since returning to power, attacking the foundations of democracy not with a chisel but a sledgehammer.

On day one he pardoned about 1,500 people who took part in the 6 January 2021 insurrection, including those who violently attacked US Capitol police in an effort to overturn his election defeat. Driven by vengeance, he dismissed federal prosecutors involved in Trump-related investigations and hinted at a further targeting of thousands of FBI agents who worked on January 6-related cases.

Bill Kristol, director of the advocacy group Defending Democracy Together and a former official in the Ronald Reagan White House, said: “Flipping the narrative on January 6, becoming a pro-January 6 administration, then weaponising the justice department and talking at least of mass firings at the FBI – that’s further than the norm and very dangerous for obvious reasons.

“If he could do that, he could do anything. Why can’t he order the justice department to investigate you and me and 50 other people? One assumes the lawyers at justice or the FBI agents wouldn’t do it, but if a couple of thousand have been cleared out and the rest are intimidated. I’m not hysterical but I do think the threat is much more real now than people anticipated it being a month ago.”

Borrowing from Orbán’s playbook, Trump has mobilised the culture wars, issuing a series of executive orders and policy changes that target diversity, equity and inclusion programmes and education curricula. This week he signed an executive order aimed at banning transgender athletes from competing in women’s sports and directed the attorney general, Pam Bondi, to lead a taskforce on eradicating what he called anti-Christian bias within the federal government.

He is also seeking to marginalise the mainstream media and supplant it with a rightwing ecosystem that includes armies of influencers and podcasters. A “new media” seat has been added to the White House press briefing room while Silicon Valley billionaires were prominent at his inauguration. Musk’s X is a powerful mouthpiece, Mark Zuckerberg’s Facebook has abandoned factchecking and the Chinese-owned TikTok could become part-owned by the US.

Trump has sued news organisations over stories or even interview edits; some have settled the cases. The Pentagon said it would “rotate” four major news outlets from their workspace and replace them with more Trump-friendly media. Jim Acosta, a former White House correspondent who often sparred with Trump, quit CNN while Lara Trump, the president’s daughter-in-law, was hired to host a new weekend show on Rupert Murdoch’s Fox News.

But the most dramatic change has been the way in which Trump has brought disruption to the federal government on an unprecedented scale, firing at least 17 inspectors general, dismantling longstanding programmes, sparking widespread public outcry and challenging the very role of Congress to create the nation’s laws and pay its bills.

Government workers are being pushed to resign, entire agencies are being shuttered and federal funding to states and non-profits was temporarily frozen. The most sensitive treasury department information of countless Americans was opened to Musk’s “department of government efficiency” (Doge) team in a breach of privacy and protocol, raising concerns about potential misuse of federal funds.

Musk’s allies orchestrated a physical takeover of the United States Agency for International Development (USAid), locking out employees and vowing to shut it down, with the secretary of state, Marco Rubio, stepping in as acting administrator. “We spent the weekend feeding USAID into the wood chipper,” Musk posted on X.

Musk’s team has also heavily influenced the office of personnel management (OPM), offering federal workers a “buyout” and installing loyalists into key positions. It is also pushing for a 50% budget cut and implementing “zero-based budgeting” at the General Services Administration (GSA), which controls federal properties and massive contracts.

Musk, a private citizen who has tens of billions of dollars in government contracts, is slashing and burning his way through Washington with little accountability and has significant potential conflicts of interest. An array of lawsuits is demanding interventions to stop him unilaterally gutting government. Protests are erupting outside government agencies and jamming congressional phone lines.

But critics aiming to sound the alarm that a shadow government is conducting a hostile takeover face intimidation or punishment. Edward Martin, the interim US attorney for the District of Columbia, threatened legal action against anyone who “impedes” Doge’s work or “threatens” its people. Martin posted on X: “We are in contact with FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing.”

Murphy, the Democratic senator, said: “What’s most worrying to me right now is there’s a whole campaign under way to try to punish and suppress Trump and Musk’s political enemies. It started with the pardoning of the January 6 rioters; now everybody knows that they are at risk of having the shit beat out of them if they oppose Donald Trump.

“It extended to the seizure of government funding. It’s clear now that Musk and Trump are going to fund entities and states and congressional districts that support them and will withhold funds from entities and states and congressional districts that don’t support them.”

He added: “Now you have this lawyer who represented January 6 defendants, the new acting DC US attorney, trolling activists online, threatening them with federal prosecution. It’s dizzying campaign of political repression that looks more like Russia than the United States.”

Democrats such as Murphy are determined to fight back but, being in the minority, have few tools at their disposal. Republicans have mostly appeared content to cede their own power. The party’s fealty to Trump was demonstrated again this week when senators in committee voted to move forward with the nominations of Tulsi Gabbard and Robert F Kennedy Jr as director of national intelligence and health secretary respectively – two mavericks whose selection would have been unthinkable just a year ago.

Charlie Sykes, a conservative author and broadcaster, said: “There had been some lingering optimism that at least some Republican senators would draw the line at some of the more absurd Maga appointees but that hasn’t happened. That also demoralises any potential opposition.”

He added: “What Elon Musk represents is basically a hostile takeover of the government and the complete indifference of the Republican Congress to the ways that it is being stripped of its core constitutional functions is demoralising. It is this mood that nothing can be done or will be done to stop them. You’re seeing that in the business community, in the political community, and it’s a fundamental loss of faith in the rule of law and in our system of checks and balances.”

One guardrail is holding for now. Courts have temporarily blocked Trump’s efforts to end birthright citizenship, cull the government workforce and freeze federal funding. Even so, commentators warn that the blatant disregard for congressional authority, erosion of civil service protections and concentration of power in the executive branch pose a grave threat.

Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota, said: “You’d have to have your eyes fully closed not to be deeply concerned and outraged about the vacuum that Donald Trump is operating in now. In a real sense, US democracy has died this month. It doesn’t mean it’s dead for the long term but at this moment the idea of an accountable representative system, as the framers of the constitution wrote it, is no longer present.”

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U.S. Senator Tillis conceded Trump's actions “runs afoul of the Constitution in the strictest sense.” But, "nobody should bellyache about that.”

This morning The New York Times asks, is there a constitutional crisis?

 In the United States, Congress, the president and the courts are supposed to keep an eye on one another — to stop any one branch of government from becoming too powerful. President Trump is showing us what happens when those checks and balances break down.

The president can’t shut down agencies that Congress has funded, yet that’s what Trump did, with Elon Musk’s help, to the U.S. Agency for International Development. The president can’t fire inspectors general without giving lawmakers 30 days’ notice, but Trump dismissed 17 of them anyway. Congress passed a law forcing TikTok to sell or close, and the courts upheld it, but Trump declined to enforce it. “The president is openly violating the law and Constitution on a daily basis,” said Brendan Nyhan, a political scientist at Dartmouth College.

In doing so, Trump has called the bluff of our constitutional system: It works best when each branch does its job with alacrity. Trump’s opponents are filing lawsuits, but courts are slow and deliberative. They can’t keep up with the changes the White House has already implemented. Congress could fight back, but the Republican lawmakers in charge have shrugged, as my colleague Carl Hulse reported. Senator Thom Tillis of North Carolina conceded that what the administration is doing “runs afoul of the Constitution in the strictest sense.” But, he said, “nobody should bellyache about that.”

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Is the U.S. in the midst of a bloodless coup?

 From Heather Cox Richardson:

The replacement of our constitutional system of government with the whims of an unelected private citizen is a coup. The U.S. president has no authority to cut programs created and funded by Congress, and a private citizen tapped by a president has even less standing to try anything so radical.