'Your Honor. Pat Fitzgerald, and it's the honor of my life to represent Mr. Comey in this matter'

Observations of Lawfare's Benjamin Wittes after the arraignment of James Comey:

The first is that there is a notable gap between prosecution and defense lawyers who showed up to yesterday’s hearing in what we might call pride of service. On the prosecution side, the U.S. Attorney’s Office for the Eastern District of Virginia could not find a single lawyer who had worked for the office prior to late September to stand up in court and say, “My name is X and I represent the United States.” 

Not one.

The acting U.S. attorney, of course, had been fired because he wouldn’t bring this case. And no career official from the office was at the prosecution table either. Instead, there were two assistant United States attorneys from North Carolina, whose familiarity with the case was so limited that they stressed they were only just starting to get their hands around it and its discovery. 

On the other side, by contrast, Comey’s lead defense counsel introduced himself as follows: “Your Honor. Pat Fitzgerald, and it's the honor of my life to represent Mr. Comey in this matter.”

This is a bit of an inversion of the normal understanding of the roles of criminal lawyers. Federal prosecutors typically feel a certain honor and pride in representing the United States in court—believing that their cases represent attempts to do justice. Defense counsel, by contrast, generally think of themselves as representing a check on the justice system’s coercive power in general. But they often don’t take particular pride in their specific individual representations as embodying justice—much less that representing a particular accused miscreant is the honor of their lives. There are exceptions, of course, but I’m not sure I’ve ever seen a case in which the prosecution was so evidently ashamed of its case and the defense so visibly proud to represent someone accused of a crime.

Fitzgerald is, of course, a smart lawyer, and he was—I assume—making this point intentionally. But the point is also undoubtedly sincere. And it works rhetorically because it is so intuitively right. Fitzgerald is a famed federal prosecutor—one who has prosecuted mobsters, politicians, and White House officials on behalf of the United States—saying that the singular honor of his entire career is representing a defendant against prosecution by the United States, even as the government is having trouble finding lawyers to show up in court on its behalf.

The second point is a related one, and it concerns preparation. There is something embarrassing about the government indicting a case and then showing up in court completely unprepared to litigate it. Yet in a brief hearing, the government did not merely put forward new lawyers from a different state who had clearly been assigned to the matter only a day or two earlier, these lawyers declared they had not yet discerned the scope of their discovery obligations, anticipated that there might be issues with respect to classified material but did not yet know the full scope of those issues, and asked for time to sort things out that are normally sorted out before a case is ever brought. 

“We’re just getting our hands around the discovery as well,” prosecutor Tyler Lemons said, as though the prosecution hadn’t had five years to figure out what documents it might need to produce if it brought this case.

The defense too, acknowledged that it was also unprepared—but for a very different reason.

Fitzgerald stated he still lacked the most basic information about what the indictment alleges Comey is supposed to have done. The people about whom Comey is alleged to have lied to Congress are still unnamed, he noted. “We haven't received a single piece of paper of discovery to date. We still haven’t been told who PERSON 3 and PERSON 1 are. We don’t know the nature of the charges . . . “ 

Despite his professed unpreparedness, Fitzgerald was able to sketch out a speedy briefing schedule, in which the defense will file its motions to dismiss for selective and vindictive prosecution and challenging the legality of the appointment of Lindsey Halligan in less than two weeks and then, while the government is responding to those, prepare a second tranche of motions to file in November: “We're a little less certain of precisely what motions [these] would be, but there might be a Bronston literal truth defense motion. There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment,” he said. 

It is fairly normal to see cases in which at arraignment the defense has not gotten its act together yet while the prosecution has its ducks neatly lined up. Indictments, after all, sometimes take defendants by surprise. Defendants don’t always have their legal teams set up yet. 

The opposite situation—one in which the prosecution can’t even give a coherent account of its discovery process or a sense of the role classified material might play in the case, while the defense can lay out a roadmap to trial—I have never seen before. 

My third observation is that the reason for both of the first two points is the same and unsubtle: Because the government is behaving shamefully and proceeding with a rushed criminal case based on compound untruths, it neither has put itself in a position to behave responsibly—by having discovery ready and the like—nor does it have access to attorneys of the sort who know the case they have brought when it comes time to move it forward in court.

But expecting that sort of thing is apparently passé. Today the Eastern District of Virginia is already on to Letitia James for a crime she also didn’t commit.

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Law & Crime: Why James Comey's lawyers should be very happy right now — even after former FBI director's indictment

Matthew T. Mangino
Law & Crime News
September 29, 2925

I would be the happiest attorney in Virginia if I was representing James Comey.

Imagine having the opportunity to represent a former FBI director who has been charged, as The New York Times put it, "[by] an inexperienced prosecutor loyal to President Trump, in the job for less than a week, fil[ing] criminal charges against one of her boss's most-reviled opponents. She did so not only at Mr. Trump's direct command, but also against the urging of both her own subordinates and her predecessor, who had just been fired for raising concerns that there was insufficient evidence to indict."

What you've read is just the tip of the iceberg. This is going to be like stealing candy from a baby. Here are the top ten reasons, based on the findings of NBC News, why it's good to be Comey's attorneys.

1. The former FBI director was indicted five days before the statute of limitations was set to expire. That means if he wasn't charged by Sept. 30, 2025, he could never be charged. Seasoned career prosecutors, including Trump's own appointees, had five years to bring charges. They refused.

2. President Donald Trump publicly said that U.S. Attorney General Pam Bondi should prosecute Comey and Sen. Adam Schiff, D-Calif., and New York Attorney General Letitia James. All three political adversaries.

3. The president posted on Truth Social, his social media platform, his frustration that his political foes have not been arrested: "We can't delay any longer, it's killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!"

4. Lindsey Halligan, the new acting U.S. attorney for the Eastern District of Virginia, brought the charges against Comey despite concerns from prosecutors within her department. Prior to the charges, a senior Justice Department official told NBC News that career prosecutors in Halligan's office sent her a memo documenting why they believed that probable cause did not exist to secure an indictment against Comey.

5. The president's appointment of Halligan came after he expressed frustration that her predecessor, acting U.S. Attorney Erik S. Siebert, was refusing to bring charges against Comey. Trump fired Siebert.

6. The indictment was handed down by a grand jury in Alexandria, in the Eastern District of Virginia. The grand jury did not return an indictment on an additional count of making a false statement, according to court filings – some of the Justice Department's claims were rejected.

7. The government's case against Comey is based on the testimony of Andrew McCabe, a Comey deputy. McCabe said that Comey authorized him to leak information to the press, according to a 2018 Justice Department inspector general's report. But the report also found that McCabe made multiple false or misleading statements.

8. The indictment includes two counts: making a false statement and obstruction of a congressional proceeding. The charges stem from testimony Comey made during a Senate Judiciary Committee hearing. He denied that he authorized leaking information regarding the FBI's investigations into then-President Donald Trump or former Secretary of State Hillary Clinton. He told Congress, "I stand by the testimony."

9. The Inspector General's report found that Comey flatly denied, under oath to investigators, authorizing McCabe's leak to The Wall Street Journal. Investigators concluded that "the overwhelming weight of evidence supported Comey's version of the conversation and not McCabe's."

10. During Trump's first term, the president directed then-special counsel John Durham to investigate the origins of the Russia investigation. Durham's team did not charge Comey with a crime, nor did Durham criticize Comey by name in his final report.

This stuff is better for the defense than DNA is for prosecutors in a murder trial.

And it would be funny if it wasn't such a blatant challenge to the rule of law, shaking the very fiber of our democracy.

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. He is a regular contributor to Law & Crime. 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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American Bar Association condemns the use of government power to threaten political opponents

The American Bar Association (ABA) has waded into a politically charged dispute over Justice Department independence, releasing a statement condemning the use of government power to threaten political opponents and officials “who were doing their job.” The move underscored the organization’s increasingly visible advocacy role, reported JURISTnews.

In the statement, the national professional organization for lawyers in the US wrote:

Using government power to threaten people and groups on political grounds is antithetical to our system of justice and the rule of law. Intimidating a political opponent, a lawyer or law enforcement official who was doing their job, an organization that pursued missions not favored by the president, state attorneys general and even members of Congress is unacceptable. Evidence, not ideology, should always be the north star.

Additionally, ABA noted that decisions of prosecutors must be free from political influence to avoid the erosion of public trust in the judicial and political system. The association reiterated that 15 years ago, a policy was passed concerning the political interests of prosecutors and other government lawyers.

Article II, Section 2, Clause 2 of the US Constitution, commonly known as the Appointments Clause, grants the President the authority to “nominate” with the advice of the Senate, “Officers of the United States,” including federal prosecutors. This provision limits undue political influence over the justice system by requiring the Senate’s confirmation role in preventing partisan appointments to the judicial system.

In addition to appointments, however, the threat of utilizing the already-appointed officials is imminent as indicated by the ABA statement. In Berger v. United States, 295 U.S. 78 (1935), the Supreme Court argued that the Attorney General is not a representative of an “ordinary party to a controversy,” but of a “sovereign whose obligation to govern impartially,” and whose prosecution may have earnestness and vigor, but no liberty to strike unfairly.

Earlier this month, former FBI director James Comey was indicted on making false statements to Congress and obstruction of justice. According to Comey, the DOJ is politically attacking him for his stances against President Donald Trump.

The politically charged statement highlighted the ABA’s increasingly visible advocacy role at a time when several Republican-led states are questioning whether the organization should continue overseeing law school accreditation. Texas on Friday became the first state to announce it would end that arrangement, while Florida has cited concerns about the “ABA’s active political engagement” in launching its own review.

The ABA is the nation’s largest voluntary legal network, representing more than 400,000 lawyers. It has served as the sole federally recognized accreditor of American law schools since 1952. Many states have traditionally required graduation from an ABA-accredited law school as a prerequisite for bar admission, making the organization’s approval essential for most law schools. But the ABA serves functions beyond academia as well, including in vocally advocating for the legal profession and advancing the rule of law.

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The Trump vengeance tour coming to a politician near you

 According to The New York Times, Donald Trump has never been coy about his intentions. He ran in 2024 on a promise of payback, and declared in a speech at the Justice Department this year his intention to pursue vengeance against the “scum” he says weaponized the criminal justice system against him.

While Mr. Trump and his team acted quickly to purge the Justice Department and the F.B.I. of officials who had roles in prosecuting him and his allies, it has taken a while for the president to exert maximum pressure to bring charges against his highest-profile foes.

In July, William J. Pulte, an obscure but ambitious housing finance official, padded into the Oval Office and pressed doubts in Mr. Trump’s mind about Mr. Siebert’s role in the James investigation. It fueled his growing frustration over the pace of Justice Department inquiries into all of his enemies, including Mr. Comey.

Mr. Pulte argued that Mr. Siebert was slow-walking the James case in order to get confirmed by the Senate for a job in a state with two Democratic senators, according to people briefed on the conversation.

The president’s drive for vengeance was stoked by allies in and outside his government, most notably Mr. Pulte, whose accusations of wrongdoing against a Federal Reserve governor, Lisa Cook, helped instigate Mr. Trump’s move to oust her. Mr. Pulte has often teamed up with Ed Martin, who runs the Justice Department’s “weaponization” task force.

Mr. Pulte, who referred the James mortgage case to the department earlier this year, was not just veering out of his lane. He had jumped the median. Todd Blanche, the former Trump defense lawyer who now runs the day-to-day operations of the Justice Department as the deputy attorney general, made it clear he did not appreciate Mr. Pulte telling the boss what the department should do, according to officials briefed on their interactions and familiar with Mr. Blanche’s thinking.

Mr. Blanche told people in his orbit that Mr. Pulte was hyping up the president’s expectations, even though the legal threshold for bringing charges against Ms. James, proving criminal intent, had not been met.

Mr. Pulte declined to comment. Mr. Blanche did not respond to a request for comment.

Mr. Blanche is a Trump loyalist. He left a partnership at a top New York law firm when colleagues refused to let him take on Mr. Trump as a private client, and he has promoted the view that Mr. Trump has nearly unlimited authority under Article II of the Constitution. He strongly believes law enforcement was weaponized against the president.

Yet unlike Mr. Martin and Mr. Pulte, Mr. Blanche is also a seasoned former federal prosecutor with a firm grasp of evidentiary rules and an appreciation of work done by career department investigators that is not shared by the president, or many others in the West Wing.

He passed along their unwelcome findings in the James investigation to the White House, knowing it would not be happily received, according to officials.

He knew that Mr. Trump viewed him as his personal lawyer. He also knew his client wanted revenge, not a legal lecture, and understood that it was futile to protest too much.

By late summer, bigger political forces were at work, namely the backlash over his department’s failure to release the full tranche of investigative files into the disgraced financier Jeffrey Epstein. In what was seen as an effort to divert public attention, many pro-Trump influencers — egged on by government officials like Kash Patel, the F.B.I. director — turned up the volume on their demands about prosecuting the president’s enemies.

The calls for vengeance reached such a frenzy that Mr. Trump himself eventually issued a chilling yet all but undeliverable threat: He claimed that former President Barack Obama had committed treason and should face “consequences.”

Enter Mr. Martin, a far-right activist from Missouri, who had been given an ill-defined but potentially powerful role at the department to pursue Trump enemies after Senate Republicans quashed his nomination to serve as U.S. attorney for the District of Columbia.

He had a direct line to the White House, at times bypassing Mr. Blanche, and had a mandate to work directly with U.S. attorneys to bring cases.

By mid-August, he was focused on indicting Ms. James over questions Mr. Pulte had raised about a mortgage application for a house she had purchased in Virginia. One of the spurs driving him: His special agreement to work with Mr. Siebert’s office on the James case expires at the end of this month.

Prosecutors working under Mr. Siebert, however, determined that there was insufficient evidence to bring charges.

But Mr. Trump was growing increasingly fixated on the fact that the Justice Department had not yet indicted a single person he had targeted, according to multiple people in his orbit, and was receptive to the agitation of advisers. Mr. Pulte soon had frequent access to Mr. Trump by phone, and efforts by some Trump advisers to stall Mr. Siebert’s dismissal were failing.

Sergio Gor, the director of the presidential personnel office, moved to dismiss Mr. Siebert after Mr. Trump said multiple times that he wanted him fired, according to two people with knowledge of the events. And Boris Epshteyn, a longtime Trump legal adviser, spoke with Ms. Halligan, who was serving as a lawyer in the White House, about stepping in to lead the U.S. attorney’s office. The president quickly settled on her for the role, according to a person familiar with the situation.

Senior Justice Department officials, meanwhile, suggested that the Comey investigation was moving forward, and did not rule out the possibility of a prosecution.

Another deadline accelerated the pace of that investigation: the five-year statute of limitations on potential crimes emanating from Mr. Comey’s Senate testimony, which would have expired on Tuesday.

In early September, prosecutors from Mr. Siebert’s office subpoenaed Daniel C. Richman, a Columbia law professor and close adviser to Mr. Comey, in connection with an investigation into whether the former F.B.I. director lied about authorizing Mr. Richman to leak information.

Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case, according to people familiar with the matter. And Mr. Siebert began expressing serious doubts about the case, which quickly made their way up the chain of command.

By mid-September, Mr. Trump was determined to rid himself of Mr. Siebert, a 15-year veteran of the office. Ms. Bondi and Mr. Blanche, who had worked closely with Mr. Siebert on immigration, drug and gang cases, pushed back.

The president was unswayed. On Friday, Sept. 19, he told reporters he wanted Mr. Siebert to leave. The prosecutor, who had hoped to find another job in the department, knew that time was up and resigned, according to officials in his office who requested anonymity to avoid retribution.

The next morning, shellshocked staff members in the U.S. attorney’s office awakened to find an email in their inboxes from Maggie Cleary, a veteran state prosecutor, saying she was their new boss.

At 6:44 p.m. on Saturday, Mr. Trump dashed off a rambling but pointed social media message to Ms. Bondi demanding action. It landed with a boom.

It read: “Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action.’ Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.’”

His coda erased any questions about his intentions.

“JUSTICE MUST BE SERVED, NOW!!!” he wrote. Soon after, Comey was indicted by a grand jury.

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Trump gets his revenge and the rule of law takes a big hit

The clearest way to understand the extraordinary nature of the indictment of James B. Comey, the former F.B.I. director, is to offer this simple recitation of the facts by The New York Times:

An inexperienced prosecutor loyal to President Trump, in the job for less than a week, filed criminal charges against one of her boss’s most-reviled opponents. She did so not only at Mr. Trump’s direct command, but also against the urging of both her own subordinates and her predecessor, who had just been fired for raising concerns that there was insufficient evidence to indict.

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CREATORS: Where Have All the Heroes Gone

Matthew T. Mangino
CREATORS
September 23, 2025

The Presidential Medal of Freedom is the highest civilian honor that can be bestowed on an individual by the President of the United States. The honor was established by former President John F. Kennedy in 1963.

The award has been given to 673 people, and collectively to the crew of Apollo 13.

As the president demands his Attorney General Pam Bondi prosecute his political foes, we would do well to remember a past recipient of the Presidential Medal of Freedom — William D. Ruckelshaus.

Ruckelshaus was known for his work protecting the environment, fighting pollution and serving as the first leader of the Environmental Protection Agency, but tucked away in the White House statement announcing his award, he was recognized for his courage to stand up to former President Richard Nixon, who sought to circumvent the rule of law.

In 1972, five men hired by the committee to re-elect Nixon broke into the Democratic National Committee headquarters in the Watergate Building in Washington, D.C.

About a year later, Archibald Cox was appointed to investigate the matter.

Cox demanded that the White House turn over 10 hours of secret Oval Office recordings, some of which could implicate the president in covering up the break-in.

Later that year, Nixon, feeling the investigation closing in on him, demanded the Department of Justice fire Cox for refusing to obey the president's order to abandon his demand for the "White House tapes."

Attorney General Elliot Richardson resigned rather than dismiss Cox. Nixon then turned to Ruckelshaus, his Deputy Attorney General, to fire Cox. Ruckelshaus also chose to resign. The incident became known as the "Saturday Night Massacre."

Robert Bork, the solicitor general, became acting attorney general and fired Cox. Within minutes, the White House sent the FBI to seal the offices of the Special Prosecutor, Attorney General and Deputy Attorney General.

Under enormous public pressure, Nixon appointed a new special prosecutor, Leon Jaworski. He eventually obtained the missing tapes and Nixon resigned the following year.

Ruckelshaus is certainly not a household name, but he was a true American hero. He told The New York Times years later, "I thought what the president was doing was fundamentally wrong — I was convinced that Cox had only been doing what he had the authority to do; what was really of concern to the president and the White House was that he was too close. He hadn't engaged in any extraordinary improprieties, quite the contrary."

Ruckelshaus took a principled stand and was willing to put it all on the line for what he believed in — the rule of law. The conduct of our current president reveals just how few American heroes we have today.

In his letter of resignation, reprinted at the time by The New York Times, Ruckelshaus politely thanked Nixon for the opportunity to serve and wished him well, but admonished that "my conscience will not permit me to carry out your instructions to discharge Archibald Cox. My disagreement with that action at this time is too fundamental to permit me to act otherwise."

According to Reuters, the Department of Justice under Bondi has launched criminal probes into Trump's perceived enemies, searching the home of former national security adviser John Bolton, and using grand juries to probe mortgage-fraud allegations against New York Attorney General Letitia James, Democratic Senator Adam Schiff and Federal Reserve Board Governor Lisa Cook. What will Pam Bondi do?

In 2018, Ruckelshaus wrote in the Washington Post, the "Saturday Night Massacre" was not only the beginning of the end for Nixon, "but it also accelerated the growing wave of political cynicism and distrust in our government we are still living with today. One manifestation of that legacy: a president who will never admit he uttered a falsehood and a Congress too often pursuing only a partisan version of the truth."

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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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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New York Times: ‘Egregious.’ ‘Brazen.’ ‘Lawless.’ How 48 Judges Describe Trump’s Actions, In Their Own Words

There have been more than 400 lawsuits brought against the Trump administration this year. Dozens of judges, appointed by both Democratic and Republican presidents ...(including four by President Trump)... have ruled against the administration. And they have often used tough, blunt language.

Many Americans in positions of power, including corporate executives and members of Congress, seem too afraid of President Trump to stand up to his anti-democratic behavior. Federal judges have shown themselves to be exceptions. “Judges from across the ideological spectrum are ruling against administration policies at remarkable rates,” said Adam Bonica, a political scientist at Stanford University.

These rulings have halted Mr. Trump’s vengeful attempts to destroy law firms, forestalled some of his budget cuts and kept him from deporting additional immigrants. Yes, the Supreme Court has often been more deferential to the president. Still, it has let stand many lower-court rulings and has itself constrained Mr. Trump in some cases.

The bipartisan alarm from federal judges offers a roadmap for others to respond to Mr. Trump’s often illegal behavior. His actions deserve to be called out in plain language for what they really are. And people in positions of influence should do what they can to stand up for American values, as many judges have done.

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SCOTUS complicit in executive branches assault on democracy

On Thursday afternoon, the Supreme Court issued a brief order condemning eight migrants to banishment in South Sudan, where they face the very real possibility of torture and death. None of the eight men had ever set foot in the war-torn African nation, and they had all been expelled from the United States without due process in direct violation of a lower court order, reported Slate. But SCOTUS didn’t care. What mattered to the majority was that Donald Trump’s administration wanted to dump them in South Sudan immediately. And nothing—no federal law or treaty or constitutional guarantee—was going to stop it. Not under the watch of this Supreme Court.

Thursday’s brutal order neatly encapsulates the SCOTUS term that drew to a close less than one week earlier. Aside from a few sporadic attempts to rein in Trump’s most lawless excesses, the court has largely given up policing the president’s power grabs. More frequently, in fact, the conservative supermajority facilitates his abuses of power by expanding executive authority to new heights, sapping strength from Congress and the lower courts in the process. And on the rare occasions when SCOTUS does draw a line, it seems more concerned with preserving its own supremacy than placing meaningful limits on Trump’s authoritarian impulses.

Less than six months into the second Trump administration, the Supreme Court has settled on a posture of complicity toward the executive branch’s assault on civil liberties and democracy itself. The 47th president seeks to restructure the government around his own whims, blasting through any barrier that restrains him as he embarks on a project to illegally freeze spending, end birthright citizenship, and disappear noncitizens to black sites, among other autocratic ambitions. And six Republican-appointed justices are falling over themselves to help him do it.

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Further proof of this administration's conception of the 'imperial presidency'

Thanks to a Freedom of Information Act (FOIA) release, we now have the letters that Attorney General Pam Bondi sent to major tech companies like Apple, Google, and Oracle regarding their continued business with TikTok, reported Lawfare. These letters provide a legal rationale (if it can be called that) for the Trump administration’s commitment not to enforce the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), the divestment-or-ban law that the Supreme Court upheld in January. The letters make two central claims, both of which are astonishing in their breadth and implications for executive power.

First, in some of the letters, the Justice Department purports to be “irrevocably relinquishing any claims” against the companies for violating PAFACAA during the non-enforcement periods declared by President Trump. As I’ve written before, such promises of non-enforcement are on shaky legal ground and represent a risky bet for the companies relying on them. A future administration would likely not be bound by these pronouncements, regardless of the Justice Department's assertion of its "plenary authority" over PAFACAA to enter into such settlements.

But the primary, and more constitutionally audacious, argument advanced in the letters is a claim of sweeping Article II power. According to Bondi, the president determined that an “abrupt shutdown” of TikTok would “interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States.” On this basis, the attorney general “concluded that [PAFACAA] is properly read not to infringe upon such core Presidential national security and foreign affairs powers.”

Let’s be clear: The executive branch is asserting that if a president determines that a duly enacted statute is inconvenient for the conduct of foreign affairs—and that’s assuming this is about a good-faith view of foreign policy, and not, say, the financial interests of a major campaign donor with a massive stake in TikTok’s parent company—he can simply set it aside. This interpretation effectively creates a foreign-affairs exception to the President’s duty to “take Care that the Laws be faithfully executed.”

This argument conveniently ignores that Congress has its own significant, constitutionally enumerated powers in the realm of foreign affairs. The authority to enact PAFACAA falls squarely within Congress’s power to “regulate Commerce with foreign Nations,” a core legislative function under Article I. The logic of Bondi’s letters suggests that this power exists only at the sufferance of the president. Whenever a president finds a congressional commercial regulation to be an obstacle to his foreign policy goals, he can, by this reasoning, simply ignore it. Today it’s a social media app; tomorrow it could be any number of sanctions, trade, or immigration provisions that a president unilaterally decides to ignore based on some generic assertion of foreign affairs authority.

To be sure, there are rare circumstances where the president’s exclusive Article II foreign affairs powers can overcome a contrary congressional statute. The key modern precedent is Zivotofsky v. Kerry, where the Supreme Court held that the president has the exclusive power to recognize international borders and that Congress could not, via a passport statute, force him to contradict his recognition policy regarding the disputed status of Jerusalem.

But Zivotofsky’s holding was a narrow one. The Court took pains to emphasize that the case was “confined solely to the exclusive power of the President to control recognition determinations” and did not “question the substantial powers of Congress over foreign affairs.” It certainly did not anoint the president as the “sole organ” of American foreign policy, free to disregard any law he deems inconvenient.

The letters also deploy a disingenuous constitutional avoidance argument. They claim PAFACAA is “properly read” to include an exception for the president’s core foreign affairs powers. But the canon of constitutional avoidance only applies when a statute is ambiguous, allowing a court to choose a plausible interpretation that avoids a constitutional problem. That is not the case here. PAFACAA is crystal clear. It provides a specific, narrow 90-day extension mechanism contingent on a divestment process; it cannot plausibly be read to authorize a free-floating presidential power to suspend the law for foreign policy reasons. The Justice Department isn’t interpreting PAFACAA; it’s vetoing it after the fact.

The battle over TikTok is a major rule-of-law crisis in its own right. But its greatest significance may be how starkly it illustrates this administration's imperial conception of itself.

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'Lawless': Will SCOTUS chief draw a constitutional red line?

As President Donald Trump sweeps the law aside, indiscriminately firing government employees, closing agencies and departments, pressuring law firms and universities, and seizing people residing lawfully in the country without due process, the nation’s eyes have turned to John Roberts. Surely, the chief justice of the Supreme Court, guardian of institutional legitimacy, will draw a constitutional red line, writes George Thomas in a book review for the Washington Monthly. 

Yet Trump has thus far governed on the opposite assumption—that the Roberts Court won’t stop him—and he has good reason to believe as much. Nowhere is this clearer than in Trump v. United States, the presidential immunity case decided last year. Roberts overlooked what was in front of his nose, the January 6 assault on the Capitol, and instead penned an opinion that on its face immunized presidents against legal responsibility if they were engaged in “official acts.” Roberts insisted that this was necessary, lest presidents be afraid to make the tough decisions that often fall to them. For a Court that so frequently turns to history, one had to wonder just what history the Court was looking at. Presidents in the second half of the 20th century, even after Watergate, have not exactly been shy about claiming sweeping official power. 

Trump seems to have taken the ruling’s central lessons to heart: By way of executive order, clothing his action with the veneer of an “official act,” he has asked the Justice Department to open an investigation into Christopher Krebs, his former director of cybersecurity, for telling the truth to the American people. As Trump was lying about the 2020 election results, and falsely claiming election fraud and interference, Krebs, doing his job, insisted that, according to the evidence, the 2020 election was free and fair. For this, Trump is attempting to use the power of his presidency to punish Krebs. 

Should the chief justice be surprised? Is he surprised that Trump might ignore the Supreme Court and disregard the niceties of the Constitution? What will the Court decide with regard to the president’s blunderbuss tariffs, his shipping of people out of the country without due process, and his firing the heads of independent regulatory agencies without cause? 

Leah Litman gives us good reason to doubt that the Roberts Court will hem Trump in. Indeed, her new book, Lawless, seeks to demonstrate that this Court was constructed to advance a Republican agenda. When Justice Antonin Scalia passed away at the beginning of an election year, then Senate Majority Leader Mitch McConnell refused to hold a confirmation vote for Barack Obama’s Supreme Court appointee. Yet when Justice Ruth Bader Ginsburg died with early voting already underway in the 2020 election, McConnell muscled Justice Amy Coney Barrett’s confirmation through the Senate. Politics over rules. If Litman is right, there is little hope that the Court will tame a lawless administration; because it is driven by “conservative grievance,” not law. 

A professor of law at the University of Michigan, former clerk to Justice Anthony Kennedy, and cohost of the hit podcast Strict Scrutiny, Litman is writing for fans, not to persuade perplexed Court observers. Each chapter is contrived around pop culture references, like “The Ken-Surrection of the Courts” and “The American Psychos on the Supreme Court”—the former referring to the Barbie movie and the Court’s rollback of women’s reproductive rights, and the latter referring to Christian Bale’s character in American Psycho and the Court’s “murder” of the administrative state. Lawless is filled with casual snark: “Okay, but that’s just like your opinion, bro(s)”; “Come on!”; “Maybe that is true … On Mars”; “Duh!”; and “O RLY?” Litman fans—and there are many—will love it. As an occasional listener to Strict Scrutiny, which is both insightful and entertaining, I found the snark somewhat distracting and juvenile. 

It’s too bad. Litman has a serious argument here: We should understand the Supreme Court as part of the Republican coalition, undoing wide swaths of law to advance the party’s political agenda. She is at her most compelling when illuminating how the Court’s opinions are part of this larger political and constitutional project, not isolated instances of constitutional interpretation. Consider the Court’s Dobbs decision, which overturned Roe v. Wade. There are long-standing jurisprudential criticisms of Roe, some of which can even trace their lineage back to Justice Ginsburg. Yet what Litman illustrates is that overturning Roe was part of a conservative vision that goes beyond reproductive rights. Abortion rights, as Litman argues, symbolized “feminism and feminists,” and Republicans sought to roll back advances in gender equality, which many saw as an attack on the family. William Rehnquist, as a young lawyer in the Nixon administration, insisted that outlawing sex discrimination would lead to the “dissolution of the family.” Samuel Alito similarly opposed changes that would bring women to Princeton, criticized the availability of birth control, and, as a young lawyer in the Reagan administration, argued for overturning Roe. Alito got his wish three decades later when he authored Dobbs. 

Dobbs is not disembodied jurisprudence that exists outside of politics. For Litman, it is part of a larger political effort to reject gender equality. This attitude—grievance, as Litman has it—is manifest in J. D. Vance’s quip about “childless cat women” or that women who do not have children are “sociopathic” and “shouldn’t get nearly the same voice” in politics as people with children. Dobbs is the opening salvo: Birth control, giving women the ability to make fundamental choices about family and careers, has come under attack in Republican-controlled states. Litman observes similar moves regarding LGBTQ rights, and highlights the Republican Party’s 2016 platform, which called for justices who would overrule not just Roe but Obergefell—the 2015 decision finding state laws that prohibited same-sex marriage unconstitutional—as well. 

Even the Supreme Court’s jurisprudential approach, relying on history and tradition, neglects gender. As Litman writes, 

Originalism supports a political project of taking away rights from groups that were not always included in American politics and society. It effectively maintains that a group possesses rights today only if the group possessed those rights in laws that were enacted in the 1700s or 1800s.

When the Fourteenth Amendment was ratified in 1868, women had few legal rights even within marriage, did not have the vote, and were prohibited from professions like law simply because they were women. As the Court put it in 1873, 

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.

Conservatives, some of whom have called for a “manly originalism,” as Litman helpfully reminds us, would undo gender equality as we know it. We are already witnessing tragic instances of women dying because abortion restrictions prohibit them from getting the medical care they need. 

Litman has a similarly powerful argument when it comes to the Court’s voting rights decisions. As a young lawyer in the Reagan administration, Roberts “produced memo after memo outlining objections to expanding the VRA,” drawing on opinions written by Rehnquist, for whom he had clerked, to narrow the reach of the act. When Roberts was situated in the center chair himself, his Shelby County opinion began a rollback of federal voting rights enforcement. Under Section 4 of the Voting Rights Amendment, states that had engaged in racially discriminatory practices in the past had to get federal approval before changing their voting rights laws. Roberts found this unconstitutional because it rested on outdated information. But the result was telling: States that were once part of the confederacy began altering their election laws in ways that disproportionately made it more difficult for racial minorities, particularly Black people, to vote. We do not have to think that this is Jim Crow II to find the pattern deeply disturbing. 

Yet past Supreme Courts—the New Deal and Warren Courts—also have roots as part of political coalitions. And these courts also instituted profound changes to constitutional law, setting aside precedents and offering novel constitutional understandings. Is the Roberts Court different on this front? 

At times, yes. Most notably, given Litman’s argument, the New Deal Court was in line with a large governing majority, and even the Warren Court, which is viewed too often as an anomaly, was embedded within the coalition of Kennedy-Johnson liberalism as it brought the white South into line with the rest of the country. Partly in contrast, the Roberts Court is supported at best by a slim plurality in a deeply divided country, and its decisions—overturning Roe, for instance—are often out of line with democratic sentiment. Plus, the current Court relies heavily on text and history but does so in a highly selective manner. On gun control and abortion rights, for instance, the Court has embraced a view of history that confines our understanding of the Fourteenth Amendment to the middle years of the 19th century. Yet confronted with whether Donald Trump had disqualified himself for office under Section 3 of the Fourteenth Amendment by instigating January 6 and the events around it that tried to keep him in power, the Court had little interest in history or original meaning. It would have been momentous to remove a presidential candidate from the ballot, and there was at least some reason to doubt that Trump had engaged in an insurrection under Section 3’s terms, but the Court simply neglected these foundational questions.

The Roberts Court is sweeping away well-established law based on a theory of the separation of powers that finds little grounding in constitutional text, history, or precedent.

Supreme Court opinions always raise contingencies and qualifications, but Litman demonstrates how the current Court too often leans into Republican causes. And they do so even if it requires dismantling the jurisprudential legacy of their judicial icon—Justice Scalia—on issues like the free exercise of religion. Here the Court has begun to insist not only that the establishment clause allows the states to directly fund religious institutions, but also that the free exercise clause commands it. Such an understanding finds little grounding in history or original meaning, and would have baffled James Madison, but it has become part of a conservative insistence that Christianity is prone to persecution in contemporary politics. 

Litman also chronicles how the Court has acted on long-standing Republican goals to limit the power of administrative agencies: overturning precedent which held that courts should defer to an agency’s reasonable interpretation of a statute when it was ambiguous; demanding that agencies show clear intent on the part of Congress if their regulations engage “major questions”; and questioning whether Congress is even allowed to delegate its power to agencies in the first place. These developments have limited the reach and power of executive branch agencies, placing that power instead in the hands of courts. Litman goes so far as to say the Supreme Court has “murdered” the administrative state. More compellingly, she insists that the Court is sweeping away well-established law based on a theory of the separation of powers that finds little grounding in constitutional text, history, or precedent. This is particularly true of the idea of non-delegation—that Congress cannot delegate its power to administrative agencies housed in the executive branch. The Court seems determined to revisit this issue, which could dismantle the administrative state and, notably, lead to widespread deregulation, which accords with the desires of leading Republican donors. 

If the Court has hemmed in administrative power, it is set to unleash the power of the president by way of “unitary” executive theory. The idea of the unitary executive is that the president gets complete control over the executive branch, including the power to remove government officers for any reason he sees fit. Does this mean that the president has control over all administrative agencies, including independent regulatory agencies like the Federal Reserve? Founding-era history does not even begin to support such claims. The first great discussion about removal, the Removal Debate of 1789, found arguments on all sides. Indeed, Alexander Hamilton, deemed the father of the unitary executive, insisted in Federalist 77 that the president needed Senate approval to remove officers as well as to appoint them. If we have settled on the precedent that presidents can remove political officers, we have also settled on the fact that Congress can insulate some officers that head independent agencies from presidential control. 

Trump wants to overturn this settlement. The White House has fired an extraordinary number of government employees, including lawyers who resisted Trump’s edicts in the name of the law. In Trump v. Wilcox, the president has asked the Court to endorse his constitutional authority to remove the heads of independent agencies at will. If the Roberts Court agrees, it would sweep away nearly a century of constitutional law and vest the president with kingly power to go along with the kingly immunity it has already bequeathed him. It remains to be seen whether the putative institutionalist John Roberts can assemble his Court to preserve institutions against this constitutional assault. Litman gives us reasons to be skeptical, and she is right to remind us that preserving constitutional institutions depends on political movements that work over the course of years. That is the struggle we find ourselves in today.

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Justice Jackson says attacks on judiciary are designed to undermine the rule of law

 Supreme Court Justice Ketanji Brown Jackson warned that the Trump administration’s attacks on the judiciary are “not isolated incidents,” but are designed to intimate the judiciary and “impact more than just the individual judges who are being targeted,” reported Jurist. Justice Jackson further warned that the threats and harassment of the judiciary are an attack on US democracy and “ultimately risk undermining our Constitution and the rule of law.”

Jackson added:

I am taking this point of personal privilege to reaffirm the significance of judicial independence and to denounce attacks on judges based on their rulings. A society in which judges are routinely made to fear for their own safety or their own livelihood due to their decisions is one that has substantially departed from the norms of behavior that govern in a democratic system. Attacks on judicial independence are how countries that are not free, not fair, and not rule-of-law-oriented operate.

Quoting former Justice Stephen Breyer, Jackson stated that judicial independence “is a matter of custom, habit, and institutional expectation,” which requires support not just from the judiciary itself, but from the community in which judges serve. Jackson also recalled that it is “easier to dismantle judicial independence than to attain it.”

Jackson then offered two ideas to ensure that judicial independence is preserved to protect the Constitution and the US public. First, Jackson recommended that judges take a more active role in educating citizens about what the judiciary does, and the importance of the role of judges in defending the Constitution and the rule of law. Toward this end, Jackson reminded that judges throughout the First Circuit are already engaged in civic education and community outreach work. Jackson credited Breyer again for his remarks on civic education and noted the useful insights given by Breyer on what can be said to help the citizenry “understand the connection between judicial independence and their own wellbeing.”

Jackson’s second suggestion is simply that judges “look inward and focus on supporting one another during these challenging times…and continually reminding ourselves of the core values that guide us in our daily work.” Acknowledging the stress that comes along with deciding a difficult case “in the spotlight and under pressure,” Jackson asked judges to look for strength in their historical role models who have faced similar challenges and navigated them with “duty, honor, and a clarity of conscience.” Jackson reminded everyone of the civil rights and Brown v Board of Education era, when lower federal court judges Frank Johnson and Skelly Wright—facing threats, public insults, and private violence in their communities—joined others in striking down bus-segregation and school-segregation and continued to issue integration orders. Jackson also spoke of lower federal court Judge John Sirica, who presided over cases related to the Watergate scandal during the Nixon Administration and who disregarded the political ramifications of his ruling, followed the facts and the law, and ruled against the very party who appointed him to the bench.

Jackson asked judges to think of these and other courageous role models in their own lives to draw inspiration and encouragement to stay on course and do the right thing for the good of the country.

The Trump administration has been noted from the very inception of his second term of consistently defying court orders and proceeding to carry on business as usual. Last month, federal judge John McConnell Jr. accused the Trump administration of defying his order requiring the federal government to release billions of dollars in federal grants after Trump’s attempt to freeze federal aid funding. Earlier this month, federal judge James Boasberg ordered the Trump administration to explain the deportation of more than 200 alleged Venezuelan gang members under the Alien Enemies Act of 1798 despite his previous order not to do so.

The US Court of Appeals for the Fourth Circuit had already made note of these actions of defiance and reminded the Trump administration to reciprocate judicial respect for the executive with its own respect for the courts. The Trump administration’s attacks on judges have also prompted Supreme Court Chief Justice John Roberts to speak out against the president in March.

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Trump is challenging 'fundamental structures of American democracy in a way that has never been seen before'

 Charlie Savage for The New York Times:

Nearly every president has pushed the bounds of executive power to try to achieve something specific. And a handful of presidents who took office during a true national crisis, like the Civil War or the depths of the Great Depression, swiftly made a series of legally aggressive moves to grapple with the challenges facing the country.

But the sheer volume and intensity of the power grab President Trump has undertaken in the first 100 days of his second term — an assault on legal constraints untethered to any equivalent catastrophe — is unlike anything the United States has experienced.

“They are trying to do a moonshot on executive power,” said Jack Goldsmith, a Harvard Law School professor and senior Justice Department official in the George W. Bush administration.

The rule of law in the United States has been traditionally understood to use checks and balances to prevent too much concentration of arbitrary executive power. But the maximalist cascade in the early days of Mr. Trump’s second term is testing the fundamental structures of American democracy in a way that has never been seen before.

Mr. Trump, pursuing a confrontational style of presidential politics, has unleashed an assault on counterweights to his authority: attacking judges, sidelining Congress’s role in making decisions about taxes and spending, steamrolling internal limits on the executive branch and using the levers of government to try to force outside centers of power like law firms and universities to submit to his will.

Akhil Reed Amar, a Yale Law School professor, said the broader picture was of an administration that was “proudly lawless and anti-law.” The danger, he added, “is that Trump is the most powerful person in the world, and he does not seem to be very good at restraining himself and he’s not getting any younger.”

In a recent interview with Time magazine, Mr. Trump was repeatedly pressed on his attempts to increase presidential power. While his answers largely meandered off topic, he denied that he was expanding executive authority, said he was deploying power as it was meant to be used and claimed an electoral mandate for his actions.

“I think I’m using it properly, and I’m also using it as per my election,” he said.

Yet Mr. Trump has flaunted his disrespect for the other branches of government. When it comes to the courts, he has denounced judges who rule against him and called for their impeachment while his administration has exploited loopholes and sidestepped complying with some of their injunctions.

He and the president of El Salvador all but openly mocked a Supreme Court order to facilitate the return of a man who was deported to a Salvadoran prison despite an immigration judge’s order not to send him there, acting as though bringing him back was impossible. Mr. Trump’s appointees fired a prosecutor because he spoke candidly to a judge about that mistake.

When critics accuse Mr. Trump of being too aggressive in his use of executive power, his team dodges the question of whether he is abusing his authority by stating that the power legally exists. But the administration is also pushing to change mainstream understandings to expand the authorities available to him.

For example, Mr. Trump has repeatedly challenged the power of the legislative branch. He unilaterally dismantled agencies Congress has said shall exist as a matter of law. And he fired civil servants, inspectors general and independent agency heads in defiance of job protections lawmakers wrote into statutes.

His goal appears to be to get the Supreme Court’s conservative majority to strike down those statutes and enshrine into law the so-called unitary executive theory. Developed by the Reagan administration’s legal team, the theory is a revisionist interpretation of the Constitution. It would undercut the power of Congress to structure the government and expand presidential power, rendering the executive branch more comprehensively subject to Mr. Trump’s whims.

Mr. Trump has also assumed some of the traditional constitutional control delegated to lawmakers over decisions about government spending and taxation. He froze the expenditure of funds that Congress appropriated, and he unilaterally imposed taxes on almost all imported goods from around the world.

Mr. Trump claimed the power to institute those sweeping tariffs by invoking a 1977 emergency powers law that allows him to impose economic sanctions to address an “unusual and extraordinary threat” from abroad. That law does not mention tariffs and has never been used in that way before.

Scholars of presidential power can identify seeds for some of Mr. Trump’s moves in precedents set by past presidents, but they expressed shock at the number of contestable actions he has initiated and the aggressive use to which he has put them. Many of his executive orders, they say, are difficult to connect to mainstream understandings of the law.

“We’ve been for a long time marching toward greater executive power and more feckless Congresses — Republicans and Democrats both, but a couple things seem to be different here,” said Michael W. McConnell, a Stanford law professor and a former federal appeals court judge appointed by Mr. Bush.

“One is just the volume — it’s an incredible spate of activity on all kinds of different fronts, and at some point volume begins to have a qualitative feel to it,” he said. “The second is that it seems to me that a lot of it is being done with much less legal care. Every president makes mistakes, but there has been a lot more sloppiness and I just can’t believe they could possibly have been approved by the Office of Legal Counsel.”

That office, an arm of the Justice Department, has traditionally been the center of executive branch lawyering and acted as an internal check on the presidency. It decides which proposed actions would be lawful or go too far, including vetting the legal and factual claims in draft executive orders before approving them. But Mr. Trump has largely sidelined it.

Control over legal vetting of Mr. Trump’s actions has shifted to inside the White House and the orbit of his most influential policy aide, Stephen Miller. While not a lawyer, Mr. Miller has played a key role in legal staffing decisions and has advanced a view that because presidential elections are conducted nationally, Mr. Trump embodies democratic legitimacy far more than lawmakers or judges.

“The whole will of democracy is imbued into the elected president,” Mr. Miller told reporters in February.

That perspective has bled into legal filings. One spurned a judge’s demand for information about the administration’s decision to finish transferring a group of Venezuelan migrants to a Salvadoran prison under a wartime law, the Alien Enemies Act, despite his order to turn the planes around. The judge should back off, the administration insisted, claiming that Mr. Trump wields “plenary authority” over the matter derived from the Constitution and the “mandate of the electorate.”

The administration made that claim as part of an unusually aggressive invocation of the state secrets privilege, a power the executive branch can use to prevent the exposure of sensitive national security information in court. Typically, presidents used it only for classified information, which they showed to judges in private. Neither is the case in the current clash.

Mr. Trump appears to see even less reason for self-constraint than in his first term. His hammerlock has only tightened over the Republican Party, which in turn controls the legislative branch, meaning he has no fear of impeachment. One Republican senator, Lisa Murkowski of Alaska, recently admitted that “we are all afraid” of Mr. Trump.

He has also been unleashed in part thanks to the Supreme Court, whose six Republican appointees last year granted presidents broad immunity from prosecution for crimes committed using their official powers, especially in their interactions with the Justice Department.

The president, far more than in his first term, has cast aside a post-Watergate norm that the White House should stay out of law enforcement decisions. After years of baselessly accusing Barack Obama and Joseph R. Biden Jr. of directing investigations into him, he has made a reality the very weaponization of the Justice Department he once railed against.

Already, Mr. Trump has ordered prosecutors to scrutinize a top cybersecurity aide during his first term, Christopher Krebs, who fell from his favor by contradicting conspiracy theories that voting machines had been hacked to rig the 2020 election in favor of Mr. Biden.

Mr. Trump directed a similar review by the Department of Homeland Security into Miles Taylor, another first-term official who criticized him. And last week, Mr. Trump ordered the Justice Department to scrutinize ActBlue, the Democratic Party’s top fund-raising platform.

Mr. Trump is turning the department into his personal instrument in other ways, installing his own defense lawyers as its leaders. Among other actions, they dropped a corruption case against Mayor Eric Adams of New York in what a U.S. attorney denounced as an unethical abuse of law enforcement power to coerce his help in enacting the president’s deportation agenda. The move prompted a wave of resignations by prosecutors.

It is too early to know how the system will stand up to this broad and multifaceted effort to concentrate greater power over the government and American society in Mr. Trump’s hands.

At the moment, Congress is providing no check on him. If Democrats retake the House in the 2026 midterm elections, they could start trying to perform oversight or conduct impeachment hearings. Still, after the 2018 midterms, Mr. Trump vowed to stonewall their subpoenas. And while the House twice impeached him, Senate Republicans protected him from conviction.

Several judges have started to raise the possibility of holding Trump administration officials in contempt for defying their orders. But courts generally must rely on the Justice Department to prosecute criminal contempt. Even if a judge appointed a special prosecutor, the department controls federal marshals and prisons, and Mr. Trump could pardon a defendant.

The Supreme Court has yet to rule on the merits of any of Mr. Trump’s moves. But in recent weeks, the justices issued an extraordinary order to block, for now, further deportations under the Alien Enemies Act even though the department said there were no plans for any. Some observers have interpreted the apparently 7-to-2 vote as a sign that a majority of the justices are skeptical that the administration can be trusted.

Professor Amar pointed to another guardrail that appears to be somewhat effective: the financial markets, whose negative reaction to Mr. Trump’s tariff policies and the prospect that the president would fire the Federal Reserve chair seem to have prompted him to pull back.

But most of what the president is doing is not subject to market feedback.

When Mr. Trump was blowing through norms in his first term, Professor Goldsmith argued against alarmism, saying that institutional constraints would hold. But, he says, matters are “much more precarious this time” because Congress has been doing nothing to curb the White House and Mr. Trump has neutralized internal checks on the executive branch.

“That is massively different, and it just leaves the courts out there by themselves with civil society,” he said. “The administration hasn’t crushed them yet, but they are trying to. I definitely think this situation is a much more dangerous threat to the rule of law than the last time.”

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Bunch: 'Kilmar Abrego Garcia is the critical pawn in a game to end American democracy for good'

 Will Bunch writing for the Philadelphia Inquirer:

Kilmar Abrego Garcia is the critical pawn in a game to end American democracy for good.

And the regime knows its window for pulling this off is closing. The polls are showing Trump’s popularity with the American people is plummeting, and support for his immigration policies is also shrinking, after people see their rank cruelty. The conventional wisdom is that the president should pull back, but the conventional wisdom has been wrong ever since Trump descended a golden escalator on June 16, 2015. The White House is instead racing to impose dictatorship before opponents can get organized to stop it.

In this life-and-death moment for our liberty, there are still a lot of key people who aren’t getting it, and not just television bloviators. One centrist Democratic member of Congress insisted anonymously to Axios that Trump’s immoral deportation machine is a political trap, and that Dems “shouldn’t take the bait for one hairdresser,” tacking a homophobic dog whistle onto a lack of concern over human rights.

Fortunately for democracy, the mass of decent everyday American people do get it. It’s why a throng of people gathered outside a federal courthouse in Greenbelt, Md., demanding our government obey the law. It’s why Philadelphia suburbanites driving on U.S. Route 202 in Chester County this week saw their neighbors at an overpass with a giant sign, “Free Abrego Garcia.” It’s why voters at a town hall in deeply conservative rural Iowa confronted GOP Sen. Chuck Grassley and cheered raucously when one asked, “Are you going to bring that guy back from El Salvador?”

They understand the most important fact in America right now: that if Abrego Garcia is not free, then none of us are free. The Trump regime understands this, too, but in a very different way. It sees this everyman Salvadoran laborer as the speed bump on its autobahn toward a strongman regime of unchecked corruption and naked retribution against anyone from powerful universities and law firms to college newspaper op-ed writers who dare oppose them. And they are spinning yet another Big Lie to make sure Abrego Garcia is crushed.

But we have seen, time and time again, that injustice to one simple man can change the arc of history. It was one oppressed Tunisian fruit vendor named Mohamed Bouazizi who launched the massive Arab Spring protests, and it was the captured-on-video 2020 police murder of George Floyd that triggered the largest protest in American history. This time, we need to bend the arc a lot further toward justice, and we need to do so in the name of Abrego Garcia.

There will be yet another opportunity this Saturday, with a new round of Easter weekend protests in all 50 states and beyond — and it’s clear now that everything is on the line. Let the chants of liberation ring loudly from Maine to Hawaii: Free Kilmar Abrego Garcia!

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