Today, oops, they did it again. Five justices told Donald Trump all was forgiven for tearing down the historic East Wing of the White House, and he could carry on with his ballroom project while litigation about its legality proceeded. Justices Kagan, Sotomayor, and Jackson joined a dissent written by the Chief Justice.

Tonight, I planned to play legal catch-up. Since early last week, I’ve been running a list of cases and developments we must cover, but that I haven’t been able to get to with everything else going on. I had planned to write about all of them tonight and get us up to speed. Most importantly, I planned to write about Liam Ramos, the five-year-old seized by ICE as he left school with his Spider-Man backpack and blue bunny-ears hat. Liam and his dad have now been deported to Mexico. He should be at home with his mom, in Columbia Heights, Minnesota, getting ready for the start of school. He should not have spent months in the horrible conditions at a detention facility in Dilley, Texas. But Donald Trump’s government saw fit to use the resources of the United States to cut off his future here. Don’t you feel safer knowing that? They told us they would be deporting the “worst of the worst.”

There will be a time, this week, I hope, for all of these topics. But tonight, we’re going to turn our attention to the Supreme Court’s decision this afternoon about Trump’s ballroom. Before we review the opinions, let’s remember how we got here:

• On March 31, 2026, Judge Richard Leon granted the plaintiffs’ motion for a preliminary injunction, which enjoined any further construction of the ballroom above ground, but permitted work to continue on what the court was told was a “new below-ground military installation.” Any work “strictly necessary” to protect the White House or the President and his staff could take place as well. Judge Leon held that the president is the “steward” of the White House and not the “owner,” and that Trump had no statutory authority to proceed, absent authorization from Congress.

• On April 17, 2026, the Court of Appeals for the District of Columbia stayed the district court’s injunction, permitting work to resume, while it considered the matter.

• On August 7, 2026, the Court of Appeals ruled that the district court’s injunction would remain in place. Construction was stopped again on the above-ground part of the project.

• The government ran lickety-split to the Supreme Court for a stay of the district court’s injunction, so it could get back to work on the ballroom. It’s important to understand the posture here: This is not a case that has been briefed and orally argued on the merits. It’s a shadow docket ruling on whether an injunction should be in place to keep the government from building Trump’s ballroom while the litigation moves forward.

• The opinion we read tonight is not a decision on the substance of the matter; the Court isn’t considering whether what Trump did violates the law. This is just about whether he can keep doing it while the Court considers the matter. As the majority wrote in their opinion tonight, they are still waiting on “a forthcoming petition for a writ of certiorari [from the government] and any further proceedings in this Court.”

The majority opinion is per curiam—Latin for by the court—which means it’s unsigned by any one justice. They “grant the requested stay” of the district court’s injunction, which means work can proceed on the ballroom while the case moves forward. The Court uses the now-familiar formula for deciding whether to grant an injunction, finding that “The government has established that it is likely to succeed on the merits of a significant legal question, that it would likely suffer irreparable harm without a stay, and that the balance of equities tips in its favor.”

Why is the Court talking about the government succeeding, when I’ve just told you this isn’t a decision about the legality of what Trump is doing? It’s because the Court is considering the government’s chance of success on a threshold argument—whether the plaintiffs have standing to bring the case. We had an extensive conversation about standing when Trump brought Fight Club to the White House, so we understand that it’s an important legal doctrine. If you don’t have it, you can’t sue.

Here, one would expect the Court to preserve the status quo while litigation proceeds to determine whether it existed, but that is not the case, and permitting construction to continue essentially prejudges the outcome of the case because what is the Court going to do? Order it all torn down in three years when the case is over if Trump loses?

The Court concludes with this rationalization: “Today, we do not pass upon the legality of the government’s East Wing project. We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court and that the remaining stay factors favor relief.” The stay will remain in place until the Court either denies certiorari or, if it grants it and hears the case, until it hands down judgment. Sounds like we’re going to have a ballroom.

But it’s the Court’s analysis of irreparable injury that feels most disingenuous. The Court accepts at face value most of the government’s arguments that it will be irreparably injured if it can’t build Trump’s gilt ballroom. They do that even though Judge Leon didn’t stop work on the supposed national security facilities beneath the ballroom. The list of claims the per curiam accepts includes: “every day during which construction is delayed impairs the Secret Service’s ‘protective operations,’ … the contemplated ballroom would enhance security for Presidents and their visitors who in the past have had to meet in soft tents or offsite when gathering in large numbers, … a prolonged construction period increases the risk of foreign actors ‘gathering intelligence on’ the project.” [Ed note: I thought they could just go to Mar-a-Lago dinners to do that?] The Court makes light of the plaintiffs’ concerns about the damage to a historic site and the ecological impact. When it balances the equities, it finds they are with Donald Trump based on these rather transparent grounds.

The dissent starts with the proposition that what Trump is doing is “likely unlawful.”

They explain that conclusion like this: “Congress has explicitly prohibited the construction of any ‘building or structure … on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” They continue, “Congress has not passed any law resembling ‘express authority’ for the Executive’s construction.”

The dissent also addresses the standing issue, explaining that “To have standing to sue as the representative of its members, an organization such as the Trust must show, among other things, that one of its members would have standing to sue in her own right. The [National] Trust argued one of its members suffered ‘aesthetic injury’ from the ballroom’s construction. The dissent correctly states that ‘To serve as the basis for her standing … aesthetic injury must be ‘concrete’ and ‘particularized’ … ‘real, and not abstract.’” The dissenting Justices conclude that “Given the distinctive nature of the White House and Hoagland’s [the individual member’s] focused and substantiated interest in viewing it in its traditional form, her aesthetic injury from the construction of the ballroom is concrete and particularized.” They find that there is standing.

The majority seems to act like this is just an ordinary case, not one about a president tearing down the East Wing of the White House. The majority seems to have forgotten that it’s the people’s house and that standing needs to match that moment. The notion that American citizens don’t have standing to challenge what Trump is doing to a property that is ours, not his, is ludicrous. No matter how much precedent the majority cites, they can’t erase the fundamental nature of why the Trump administration is being sued here. But the dissent gets it and they say what the majority should have said and what all Americans, regardless of party, should be saying about this:

“The White House is an iconic American building whose symbolism and history are wrapped up in its architecture. As President Theodore Roosevelt once remarked while thanking Congress for expressly appropriating funds for the construction of the East and West Wings: ‘The stately simplicity of [the White House’s] architecture is an expression of the character of the period in which it was built, and is in accord with the purposes it was designed to serve. It is a good thing to preserve such buildings as historic monuments which keep alive our sense of continuity with the Nation’s past.’”

If these plaintiffs don’t have standing to protect our country, who does? But while we may be getting a ballroom, there is also an election coming. It’s time for us to be the cavalry.

The Chief Justice concludes with this. For once, he’s writing for all of us:

“The White House is not just any building, and—when it comes to historic preservation…In failing to appreciate as much, the Court misconceives the plaintiff’s injury, allowing the Executive’s likely infringement of the Legislature’s power of the purse and authority to regulate federal property in the District of Columbia to continue. Today’s decision is no victory for the separation of powers. Winston Churchill once remarked that “[w]e shape our buildings, and afterwards our buildings shape us.” … All the more reason to ensure that those responsible follow the rules in deciding what to tear down and what to build up at the People’s House.”

Thanks for being here with me at Civil Discourse and sticking with me through another complex legal issue. We cannot look away. Our job is to understand what is happening, to make sure the people around us understand it too, and to remember where the ultimate authority in our democracy lies. Donald Trump may have gotten away with this today, but he does not get the last word. We do. We will exercise that authority when we vote.

It’s not his house.

We’re in this together,

Joyce

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The Court could issue a decision in the White House ballroom case any time now, after Chief Justice Roberts issued an administrative stay last Friday that let Trump keep working. This is one of those confusing situations where the plaintiffs obtained an injunction that prevented further construction of the ballroom (but not of the bunker), and what the administration asked the Supreme Court to do was enter an injunction against the district court’s injunction so they could go back to work. The case is National Park Service v. National Trust for Historic Preservation, and we discussed the district court’s order in It’s Our House, back at the end of March when it issued.

Also, we can expect to see the Court issue what’s known as a “summer order list” on Friday. Even though the Court is out of session, the Justices are still at work, and the order list makes some of their decision-making public, including decisions to add cases to its docket, as well as decisions it has issued, including those off of the shadow docket. You can click the links here to see the oral argument schedule for the new term of Court, which starts on Monday, October 5.

What to expect in the lower courts:

Donald Trump is trying to erase his pal Steve Bannon’s criminal conviction. This is just another verse in the same song: Use the Justice Department to reward your friends and punish your enemies. It’s sickening to watch, as Attorney General Todd Blanche swears to uphold the rule of law while serving Trump instead of the oath he took.

The federal judiciary continues to push back where it can. In July of 2022, Bannon was convicted of two misdemeanor counts of contempt of Congress for defying a House subcommittee subpoena to testify about January 6. After losing on appeal, he served four months in prison. Then Donald Trump returned to the White House and DOJ asked the Supreme Court to toss the conviction, which they did. But that wasn’t enough. Trump’s Justice Department also asked the trial judge, Carl Nichols, to dismiss Bannon’s conviction and indictment “in the interests of justice.” They wanted to make it as though the indictment had never happened.

Last Wednesday, the Judge told DOJ no, at least for now. In his order, he explained the technical legal issue:

“Rule 48(a) provides that the ‘government may, with leave of court, dismiss an indictment, information, or complaint.’ … The Supreme Court long ago stated that this ‘leave of court’ requirement ‘obviously vest[s] some discretion in the court.’ … As the Court of Appeals has put it, the ‘requirement of judicial leave … gives the court a role in dismissals following indictment.’ … The ‘primary concern’ is ‘protecting a defendant from harassment, through a prosecutor’s charging, dismissing without having placed a defendant in jeopardy, and commencing another prosecution at a different time or place deemed more favorable to the prosecution.’ … Where, as here, the defendant consents to the dismissal, that concern is obviously alleviated.”

But that didn’t end the inquiry in Judge Nichols’ mind. He continued, “But even in the ‘distinctly different situation’ where a ‘defendant concurs in the dismissal,’ … the ‘leave of court’ proviso still may require ‘an independent judicial assessment of the public interest in dismissing the indictment.’” So he gave his. He pointed out that precedent requires that prosecutors do more than just make a conclusory statement that a dismissal is in the public interest, that they must provide “a statement of reasons and underlying factual basis.” Then, it’s up to the court to guard “against abuse of prosecutorial discretion.” He concedes that the court’s role at this stage is “exceedingly narrow” because prosecutors enjoy broad discretion to dismiss cases. But he is clear that the government must comply with the procedural requirement that it state its reasons for requesting the dismissal.

That makes sense. If there wasn’t some role for the court to play here, then why require prosecutors to seek leave of court at all? The rules would permit them to notice the dismissal and end the case. But the Federal Rules of Criminal Procedure vest final approval in the court; it’s not just a rubber stamp. And so, Judge Nichols will require the government to follow the rules if it wants the special benefit for Steve Bannon that it seeks. I look forward to the explanation of how erasing the indictment and conviction of a man who refused to comply with a Congressional subpoena serves the interests of justice.

Judge Nichols denied the government’s motion without prejudice, noting that “The Government is free to submit a renewed motion that complies with Rule 48(a)’s requirements.” It’s an embarrassing schooling of the government, which should not have to be told how to comply with a basic, clear rule. Were they just sloppy, or were they unable to figure out how to justify what their audience of one wants them to do here? Although Judge Nichols also directed the government to address a technical legal issue about the timing for such a request if they do file a new motion, it’s very likely that, if they comply with the rule, he will dismiss the indictment, unless the government’s statement of reason is completely outrageous—that’s a possibility we can’t dismiss until we see it, which could happen as soon as this week.

Trump’s ongoing quest to expand the scope of presidential power:

Lisa Cook, the first Black woman to become a Federal Reserve Governor, took her case to the Supreme Court last term and won. The Court held she couldn’t be fired without at least some notice and an opportunity to respond, after Trump tried to fire her based on mortgage fraud allegations that were never proven.

On August 5, Trump’s White House notified Cook that the president was “considering” whether to remove her, again. She was given 21 days to respond to the mortgage fraud allegations. So last week, her lawyer, Abbe Lowell, responded forcefully in a letter to the White House counsel. He wrote that the mortgage fraud claim relied “on untried and unproven allegations of criminal wrongdoing set forth in a referral to the Department of Justice … submitted by William J. Pulte, Director of the Federal Housing Finance Agency, on August 15, 2025. Governor Cook has never committed mortgage fraud or any intentional wrongdoing, and there is no legally cognizable cause for removing her from the Federal Reserve Board.”

In essence, Lowell’s argument is that even if everything the administration has alleged about Cook is true, it doesn’t amount to a federal crime: “Attempting to terminate Governor Cook on the basis of Director Pulte’s Referral would ignore the facts and the law. The Letter describes acts by Governor Cook that, ‘taken together,’ supposedly constitute grounds for her removal. But neither of those acts shows intentional wrongdoing or amounts to a crime, and neither constitutes ‘cause’ under the Federal Reserve Act.” Cook had a residence in Michigan, and then asked the same lender to help with a loan for a vacation property. They provided her with a form, which she signed, for a primary residence. At worst, it’s “an inadvertent oversight,” and that conduct “is not fraudulent or criminal.” The bank knew it was a second home, and no one was defrauded. No prosecutor would ever indict this case, quite simply, because there’s no crime.

Nor does this render Cook unfit to serve. Lowell explains, and this is the best part of his letter, that:

“The President should know firsthand that listing two properties as a ‘primary’ residence does not show intentional wrongdoing or demonstrate ‘unfit[ness] for office.’ In 1993, President Trump reportedly acquired ‘primary’ residence mortgages for two different Florida homes just seven weeks apart. For each home, President Trump apparently signed a form attesting that he would occupy the property as his principal residence within 60 days and live there for at least a year. In reality, however, neither property was President Trump’s primary residence. He lived in New York and reportedly listed both Florida properties for rent. Surely the President does not believe himself ‘unfit for office’ because he signed these contradictory ‘primary’ mortgage documents.

But there’s more. Both Treasury Secretary Scott Bessent and Attorney General Todd Blanche have entered into “primary” mortgages for multiple homes and “at least three other current and former members of the President’s cabinet—Sean Duffy, Lee Zeldin, and Lori Chavez-DeRemer—have similarly held two primary mortgages at the same time,” according to Pro Publica, Lowell writes.

This might be referred to as a checkmate.

Lowell concludes that “In evaluating each of these cases, the details of which have been public for nearly a year, the President has not fired any of these officials nor asked them to resign. He seemingly understands that signing two ‘primary’ mortgage forms does not constitute an intentional act of wrongdoing or ‘call[] into question [one’s] competence and trustworthiness.’”

The ball is in the White House’s court. We’ll see if they try to bluster through. Given the Supreme Court’s willingness to use pretzel logic to protect the independence of the Fed, as opposed to other agencies where they’ve let Trump fire at will, the White House counsel may not be eager to fire Cook and end up back in front of them.

A wild card of a civil case:

In something of a Hail Mary of a case brought by more than 30 Epstein survivors against the FBI for failing to investigate, Magistrate Judge Ryon M. McCabe declined to dismiss without at least some discovery. It’s a Hail Mary only because the law, the Federal Tort Claims Act (FTCA), is so protective of the Bureau’s investigative discretion, not because the FBI handled the case properly.

A decision like this by a magistrate judge is reviewable by a district judge, which will happen here before any discovery takes place. The plaintiffs, who have repeatedly amended their complaint as new information comes to light, allege that the FBI’s handling of their reports was negligent as early as 1996, and that they could have prevented additional girls and women from falling victim to Epstein’s ring had they taken adequate steps. One of the strongest allegations involves Maria Farmer, who reported Epstein to an FBI agent in New York in 1996 and says she was told the bureau would handle the matter. She says she relied on that assurance and didn’t contact any other law enforcement agencies.

The FTCA allows people to sue the federal government for certain types of wrongful acts committed by its employees. The United States generally has sovereign immunity from suit, absent permission from Congress to sue, and the scope of legitimate claims is very limited. Here, the plaintiffs will likely have to establish conduct that would have amounted to negligence under state law to move forward. The FBI argues it can’t be sued under the FTCA for the type of discretionary decision-making involved in an investigation like this and also argues that the survivors waited too long to sue.

Judge McCabe recommended allowing 90 days of discovery into FBI policies, to determine whether the survivors can meet the FTCA’s requirements. If that happens, the FBI can renew its motion to dismiss, but something very important will have happened. As we’ve often discussed, civil discovery can be an important vehicle for doing justice. This case, although still a long shot, could get interesting.

More on mail-in voting:

On September 3, Judge Talwani holds another hearing on the two cases before her challenging Trump’s executive order on voting. As we discussed, she entered a temporary injunction, which prevents the government from acting on its “final rule” to put the Post Office in charge of who can vote by mail for 14 days. This next hearing is to determine whether she should extend that into a preliminary injunction that will prevent any action while the case moves through the courts. If she does, expect a fast-paced appeal as the government races the clock to try and suppress votes before the midterm election.

As I noted when I wrote to you about this last week, “the government defendants, who just days ago were arguing that the plaintiffs’ case wasn’t ripe for the court to decide, are now arguing that it’s too late for the court to intervene. Yes, you read that right. Too early has now become too late, with no Goldilocks spot in the middle.” We’ll see how the courts of appeal and the Court deal with Judge Talwani’s stone-cold logic.

Finally:

Where’s Mitch? I’ve had this conversation repeatedly with friends over the last few days. If Chuck Schumer, or any Democrat, had disappeared under circumstances like this, with so much at stake, the uproar would be constant.

What a week we’re heading into. Thanks for being here with me at Civil Discourse and putting in the work it takes to understand the times we’re living through and their importance. None of this is business like usual and getting through it demands that we refuse to become numb, that we be willing to expose ourselves to the fresh outrage and anger this administration’s conduct merits. It’s not easy. I feel fortunate to be part of a community of people who care about our country's future and I appreciate the support you offer for the work I’m trying to do here.

We’re in this together,

Joyce

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• The Week Ahead: We began the week with the news that the U.S. Postal Service, having scheduled publication of a “final rule” pursuant to the executive order we’ve been discussing ever since Trump promulgated it earlier this year, is on board to try to keep ballots out of the hands of people whose votes this administration fears. This despite the fact an injunction against putting the EO in place for the 2026 elections was already in effect. This set up the theme of the week’s coverage, where rulings on mail-ballots would take center stage.

• Coffee with the Contrarians: I joined Norman Eisen Monday morning for an overview of the news. We discussed palpable momentum on the pro-democracy side of the aisle, even with the Supreme Court still a wild card. Our discussion can help you get a sense of how many wins there are in the courts and how important they are right now.

• Substack Live with Steve Vladeck: Steve joined us to discuss Monday’s breaking news from the Supreme Court on the mail-in voting cases.

• The Supreme Court Weighs In: On Monday, the Supreme Court ruled in the case brought by state attorneys general challenging Trump’s executive order on elections. In an unsigned per curiam order, with dissents from Justice Sotomayor (joined by Justice Kagan) and Justice Jackson, the Court told the government it could go ahead and execute the EO. The ruling was on procedural grounds, not on the legality of the EO itself. Read here for the full explainer.

• It’s Really About 2028: Tuesday morning, the government filed its response to a motion from the League of Women Voters plaintiffs in their case before Judge Indira Talwani. After the Postal Service noticed its intent to publish a “final rule” on how it would implement the parts of the EO that ask it to take authority for ensuring only federal government-approved voters can get mail ballots, the plaintiffs went back to court because that action was a clear violation of the injunction in the LWV case. The issue here is different from the one the Supreme Court weighed in on Monday, and it’s important to understand that this is all really about is 2028 and whether the administration can make the case that it should be permitted to implement new procedures restricting mail-in voting then.

• Daydreams: On Wednesday, I called a much-deserved night off for all of us and shared a picture of one of my happy places.

• Revisiting: Can Federal Troops Be Stationed At The Polls In 2026?: When Trump first sent Marines and National Guardsmen into California, we caught the subtext. He was testing the waters. In light of recent developments in Maine and Wyoming, and as we look towards the midterms and beyond, we revisit the issue of the legality of deploying law enforcement or troops to the polls, and what our response would be if Trump tries it.

• Judge Talwani’s Most Recent Order On Voting By Mail: If you missed this one, the link will take you to my full analysis of the Judge’s order. This piece ran long, and the issues are complicated, but if you have time for just one piece today, reading or rereading this one will get you up to speed and ready to go as this issue continues to hold center stage in coming weeks. This administration is trying so hard to take away our right to vote, and our best response is to double down—stay informed and do whatever it takes to vote and make sure your vote gets counted.

• Five Questions with Meteorologist John Morales: Meteorologist John Morales began warning his viewers in 2025 that he was concerned he could no longer accurately predict weather events for them, especially when it came to the hurricanes Floridians fear, because “recent cuts to the National Weather Service could leave television forecasters like him ‘flying blind’ this hurricane season. ‘We may not exactly know how strong a hurricane is before it reaches the coastline,’” he told his viewers. He joined us Friday to discuss where things stand now.

• Live with California AG Rob Bonta: This has been one of those weeks when it's been difficult to cover all the important developments at the intersection of law and politics. I invited California Attorney General Rob Bonta to join us Saturday so we could catch up on the landmark settlement state attorneys general reached with Meta to take steps to protect minors across its platforms; why Bonta abruptly canceled settlement talks with Paramount over its proposed merger with Warner Brothers, and where he sees those negotiations heading now; and Bonta’s take on the next steps in the state AGs’ lawsuit challenging Trump’s executive order on voting by mail.

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These are complicated legal times, and it’s easy for the truth to get lost in the chaos. Civil Discourse doesn’t just track today’s headlines—it connects them to the legal and political history that explains why they matter. We don’t forget what’s at stake. We don’t let Trump and his allies rewrite the past.

Subscribe for free and get clear analysis that helps you see the whole picture, delivered straight to your inbox. Paid subscriptions help keep the newsletter free and let me devote the time and resources needed to write it.

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Joyce

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• The landmark settlement state attorneys general reached with Meta to take steps to protect minors across its platforms. AG Bonta explains what prompted Meta to settle the case mid-trial.

• Why Bonta abruptly canceled settlement talks with Paramount over its proposed merger with Warner Brothers, and where he sees those negotiations heading now. Also, why I’m going to need a coffee cup that says “No Lying, No Leaking.”

• Bonta’s take on the next steps in the state AGs’ lawsuit challenging Trump’s executive order on voting by mail. Judge Talwani is holding a hearing on September 3 on the AGs’ request for a preliminary injunction alongside a similar request from The League of Women Voters. Currently, there’s a 14-day temporary restraining order in place that keeps the executive order from going into effect; we discuss why AG Bonta is confident Judge Talwani will extend the injunction to cover the 2026 election, and what we can expect after that.

If you missed us live earlier today, you can watch the video above or read the transcript to get caught up on these cases—a bit of a break from the heavy dose of reading we’ve been doing all week.

And for those of you who’ve been disappointed by the absence of chicken pictures lately, here’s a little tease. It has been hot and muggy down here, the girls’ least favorite kind of weather, and we’re still molting, but they perked up this morning for treats.

We’re in this together,

Joyce

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Our focus will be on the Paramount/Warner Bros merger, the Meta lawsuit, and the AGs’ case challenging Trump’s executive order on mail voting—the one we’ve been discussing all week—that is now headed toward an early September hearing on a preliminary injunction on September 3.

If you’ve got questions for us, leave them in the chat, and we’ll see you later this morning.

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We’re in this together,

Joyce

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In June of 2025, Morales began warning his viewers that he was concerned he could no longer accurately predict for them, especially when it came to the hurricanes Floridians fear, because “recent cuts to the National Weather Service could leave television forecasters like him ‘flying blind’ this hurricane season. ‘We may not exactly know how strong a hurricane is before it reaches the coastline,’” he told his viewers.

John’s plea at the time caught my attention. He was one of the people who influenced my decision to write this column back then: Don’t Lose Sight Of What Matters. DOGE may now be a thing of the past, but we continue to deal with its legacy. The problems John identified are among them. He joins us tonight to help us understand where things stand today.

John’s commitment to preaching science in the era of disinformation about climate change makes him a treasure. The Friday night Five Questions format gives us the opportunity to dig into an issue like this that isn’t getting the coverage it deserves because it’s a sustained slow burn rather than a flashy headline. That is, until a catastrophic weather event hits and exposes the consequences of climate change and cuts to the government programs that keep us informed about the weather.

“Five Questions” is a Friday feature for paid subscribers, built around the conversations that don’t fit into a news cycle driven by headlines and hot takes. It’s a chance to spend time with the people shaping the law, politics, and democracy—and to ask the questions that matter most, not just the ones everyone else is asking. Keeping the daily legal analysis free has always been important to me, and it will stay that way. These Friday conversations give me a chance to thank paid subscribers for their help ensuring that Civil Discourse remains available to everyone who wants to follow the law beyond the day’s headlines. Whether you’re a paid subscriber or a free subscriber, I’m grateful you’re here.

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This is a rare Friday morning post. It’s long—I’d encourage you to read it in bits and be kind to yourself; take a break. But Judge Talwani’s decision on the most recent developments in this matter is so important that we need to get to it straight away. And I want to give you the context and basis for understanding the language she uses in this opinion, which is going to be in front of the Supreme Court, one way or another, before long. So thank you for making the effort and going the extra mile here.

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After the Supreme Court made a (purely procedural) decision about Trump’s executive order on mail-in voting, rejecting judicial action in the case brought by blue state AGs because it wasn’t “ripe” for a decision yet, Judge Indira Talwani did the logical thing. She gave the plaintiffs in that case and in the case brought by the League of Women Voters a push toward updating their lawsuits. The government showed off the final rule it wants to use to implement the executive order. The ripeness argument is now moot. The administration zeroed it out when the Postal Service announced its final rule was ready to publish. The rule was published on Wednesday.

Both groups of plaintiffs with cases before Judge Talwani refiled and asked for preliminary injunctive relief, also requesting that the court issue a temporary restraining order (TRO) to stay the government defendants’ implementation of the Final Rule. Quick reminder: a TRO is the shorter, emergency type of injunction. A preliminary injunction stays in place for a longer period of time, while litigation is happening. (Plaintiffs in related cases in the District of Columbia took steps to update their cases too.)

Thursday night, Judge Talwani granted a 14-day temporary restraining order in both of the cases before her, “staying the United States Postal Service (‘USPS’) from implementing certain sections of its final rule, Ballot Mail for Federal Elections.” She explained that “On emergency review, on August 24, 2026, the United States Supreme Court concluded that this court lacked jurisdiction to review challenges to the EO’s constitutionality where it was speculative as to whether the USPS would (1) propose a rule; (2) weigh the comments; and (3) issue a final rule consistent with the EO’s directives”—that’s the “ripeness” argument we’ve been discussing for weeks now. In essence, the Supreme Court directed her that the government hadn’t taken enough steps toward implementing Trump’s EO for the court to know what that implementation would look like and whether it was lawful. Too soon, the Supreme Court told Judge Talwani. You need to wait for the government to do more.

Now, the government has done more.

As we all know by now, the footnotes are frequently where the action is. This decision was no exception. In Footnote 4, Judge Talwani takes on a perplexing omission from the Supreme Court’s opinion: Their failure to discuss or even acknowledge that the Postal Service had announced its final rule. Judge Talwani explained it for them like this, which has the not-so-coincidental benefit of further strengthening her decision to reimpose an injunction against the executive order, because she’s set up a situation where they didn’t have all of the facts she had when they ruled:

The Supreme Court gave no indication that it was aware of the Final Rule when the Order was issued. Defendants nonetheless insist, without citation, that “publication of a Final Rule” was “already known to the Supreme Court” at the time of the Court’s Order … Although the government’s Supplemental Brief regarding the Final Rule was docketed at the Supreme Court a few hours before the Court’s per curiam Order was entered on August 24, 2026 … this court cannot assume that the Justices received the brief prior to the issuance of the per curiam Order a few hours later. In any event, that Order found a lack of standing based on the events at the time the complaint was filed and did not purport to take into account events that occurred during the months that the litigation was pending.

Judge Talwani also strengthens her order for when it heads back to the Supreme Court by pointing to the purely procedural nature of the Court’s decision last week. Their decision was limited to timing; it was not about whether the executive order itself is lawful. By setting it up this way, the Judge clarifies that she is free, now, to take up the substantive issue. She wrote, “The Supreme Court explicitly noted, however, that the disposition of the government’s emergency application ‘does not mean that any measure taken by the Government to implement the Order will necessarily be lawful.’” By pointing out that the Supreme Court itself left that issue open, she positions the new TRO as the next step in the case, not a decision contrary to the Court’s dictates (although we should expect the government to try to play it that way).

Judge Talwani also took a gentle, but satisfying slap at the Court, pointing out that the Trump administration isn’t exactly playing by the rules when it comes to court orders: “Although the Supreme Court expressed concern that this court’s injunction ‘prevent[ed] the Postal Service from so much as initiating a rulemaking that could yield a rule applicable to these States[,]’ … no such delay occurred, as the USPS had gone ahead and noticed a proposed rule, solicited and reviewed comments, and issued a Final Rule.” The Roberts Court has largely ignored the Trump administration’s efforts to challenge the authority of the courts, but occasionally, it bristles and summons some backbone when the administration goes too far—think last term’s decision on birthright citizenship or firing a Fed Governor. This opinion is a signal to the Court that this case too is one where the government must be reined in, lest the Court lose all authority to act as a check and balance on an out of control executive.

With the background laid out, we hit a critical juncture in the Judge’s decision. Here’s the most important thing to understand: the government defendants, who just days ago were arguing that the plaintiffs’ case wasn’t ripe for the court to decide, are now arguing that it’s too late for the court to intervene. Yes, you read that right. Too early has now become too late, with no Goldilocks spot in the middle. So much for the “justice” in Justice Department.

Here’s how Judge Talwani explains it. It’s worth reading her full layout:

• “Two weeks before the Final Rule issued, Defendants’ counsel represented to the court that: when the final rule is implemented, if it affects an individual voter’s ability to vote, then they certainly have standing to challenge that final rule. And courts are able to work in an expedited basis. It would only take a very short amount of time for a temporary restraining order or a preliminary injunction to issue.”

• “And two days ago, when Defendants asked the court to vacate the preliminary injunction entered in LWVM prior to the Supreme Court’s Order, Defendants represented that Plaintiffs were not without a remedy, for where the Rule had now issued, they could ‘simply amend their complaint’ and challenge the Final Rule directly.”

• “Defendants [the Trump administration] now claim that Plaintiffs are too late ‘because appellate review in the ordinary course would come too late for the 2026 midterms.’”

The Judge goes on to explain the technical reason the government is wrong on that last point. It’s because “the question is not when appellate review will be completed. The issue before the court is whether Plaintiffs have met the traditional standards for emergency relief.” But the thing that really matters here is that the courts should not permit the Trump law firm formerly known as the Justice Department to play gotcha when it comes to something as important as Americans’ right to vote. DOJ’s position is nothing short of appalling. And predictable, unfortunately, for this administration.

Temporary restraining orders preserve the status quo until courts reach a decision on the substance of cases before them. Judge Talwani’s order preserves the pre-executive order status quo, for now. To issue a TRO, she has to find in the movants’ favor on the elements courts have established for entering an injunction: a strong chance of success on the merits, irreparable injury in the absence of the remedy, and public interest/a balance of the equities favoring the injunctive relief. So for starters, she has to be persuaded that the plaintiffs have a good chance of succeeding with their claims. They now argue that the newly issued final rule “is unconstitutional, contrary to statute, and ultra vires,” and that it “violates both the separation of powers doctrine and the USPS’s governing statutes.” The government responds that it’s just doing what is necessary to implement the executive order and the final rule “merely imposes modest conditions on the sending of mail.” Seriously. That’s what they say. They add in an argument that none of the plaintiffs have standing.

The Judge pushes the weak standing argument aside. As to the government’s claim it’s taking innocuous action to support the president’s order, she reminds them that “As to the substantive merits, the Constitution charges the States with election administration … the court is unaware of, and no party has proffered, any delegation Congress has made that would permit the USPS to regulate election mail.”

Judge Talwani concludes, “Through the Final Rule, the USPS is refusing to send mail ballots to eligible voters unless States or local election officials submit their mail ballot envelopes and return envelopes and receive advance approval from the USPS without regard to impending deadlines for the November 3, 2026 election … Additionally, the Final Rule requires elections officials to create accounts for a new electronic portal, certify that they have received approval regarding the mail ballot design, and thereafter upload to the USPS portal each voter’s information, including name, address, and a unique intelligent mail barcode.” She rules that the plaintiffs are “likely to succeed on the merits of their claims that (1) the USPS lacked authority to issue the Final Rule; (2) the Final Rule is unconstitutional in imposing these requirements on the States; and (3) the Final Rule is unconstitutional in prohibiting non-compliant State and local officials from using the United States Postal Service to mail ballots.”

The likelihood of success argument is the heavy lifting here. The irreparable injury is practically self-proving when it comes to the risk that people will be disenfranchised, denied the right to vote. But Judge Talwani makes it plain, ruling that “Plaintiff States face irreparable harm where they are required to comply with a likely unconstitutional regulation for which compliance is practically impossible as to the 2026 midterm elections, now little more than two months away.” She offers specific examples:

• Most Plaintiff States have already ordered their mail ballots.

• Some are required by state law to send them to eligible voters as early as next week.

• Plaintiff States have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of mail ballots, update their own election management systems, train election officials to use the USPS portal, and upload citizen data to the portal, all before the midterms.

• The Final Rule includes no deadline or contemplated turn-around time for USPS approval of submitted mail ballot envelopes.

• If Plaintiff States are unable to comply with the Final Rule, an outcome that seems unavoidable given the timeframe, they will violate their obligations under the Constitution and State laws to administer elections.

The bottom line here is so grotesque that it’s impossible to imagine any other Justice Department advocating for such a plan, and any court taking longer than a few moments to reject it, as Judge Talwani did today. She notes that the government defendants “offer no reply to Plaintiff States’ assertion that compliance for the 2026 midterm elections will be impossible for many of them.” And what’s at stake is the right of Americans to vote. She notes the “significant risk of disenfranchisement” and finds that “In light of the State election officials’ unrebutted declarations that compliance with the Final Rule at this late date is impossible, the risk of irreparable harm to voters in those jurisdictions is grave.^” As for the League of Women Voters, their members face irreparable harm for the same reasons—because they live in states that will be unable to comply with these new measures, and so, their ballots will not count.

This is another key point we should all note. Why won’t the ballots count? It’s not because the voters involved aren’t eligible to vote. They are. It’s not because they’ve done anything wrong—failed to register or vote in a timely fashion. They haven’t. Americans will be disenfranchised because Donald Trump does not want them to vote. No legal sleight of hand can legitimize that.

It’s an appalling abuse for an American president, especially one who spends so much time ranting about virtually non-existent voter fraud, when his intent is to keep eligible voters from exercising their rights.

The only thing that remains for the Judge to assess after this is the balance of harms and the public interest. “The record continues to lack any evidence regarding fraudulent absentee or mail-in voting,” she begins. Then she drives an industrial stregnth nail into the administration’s coffin, and lays down something of a gauntlet to the Supreme Court, just in case it wants to contemplate reversing her again: “In any event, the USPS’s interest in correcting an unsubstantiated problem through likely unconstitutional means is dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens who need access to mail ballots in order to vote. The balance of harms and public interest warrant a TRO.”

And so, Judge Talwani grants a temporary restraining order, explicitly forbidding the government from taking additional steps towards implementing specified parts of its final rule for the next 14 days (she is still considering the request for a longer preliminary injunction). The final rule can’t be implemented. It can’t be enforced. The Trump administration can’t take “further preparatory steps” toward putting it into operation. And she gives it some teeth, requiring that the government “must” within a day of receiving the order, “provide written notice of this Order to the USPS Defendants and their employees” and “notify all such recipients that they are required to comply with this Order, under penalty of contempt.” District Judges have become wise to this administration’s tricks. Judge Talwani is playing for keeps here. There will be no excuses, only contempt if the government violates her order.

Will the Supreme Court permit the administration to throw the upcoming elections into confusion and disenfranchise broad swaths of voters? John Roberts probably doesn’t want that to be his legacy; it’s already tarnished enough. The easy out for the Court will be blocking the measure for the 2026 elections, but allowing it to move forward for 2028. This will not be over any time soon.

We’ve now reached the point in this case where the lawfulness—or not—of what Trump wants to do to our elections takes center stage. The case will go back to the Supreme Court and the Court will have to decide whether the Constitution, which clearly leaves this bit of election administration up to the states, still matters. Will the Roberts Court decide to undo 250 years of American democracy? Are there five votes left for the rule of law? One hopes that even on this court, a majority, however slender, that will do the right thing exists.

This is the hard work we do here at Civil Discourse. I hope you’ll share this piece widely, because it matters, and this sort of insight into a judicial decision isn’t something you’ll get from the headlines. Thanks to those of you whose support means I have the time and resources to write a piece like this. For those of you who aren’t already paid subscribers, it’s a good day to join us.

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Joyce

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Even though the law prohibits sending troops and armed agents to the polls, concerns linger. As we get closer to the midterm elections, I want to revisit that earlier post with you tonight, especially in light of some recent developments in Maine.

The Bangor, Maine, Daily News reported earlier this week that the Republican nominee for Governor, Bobby Charles, told a group of young Republicans, “I’m going to ask Tom — three or four weeks before the election, maybe three — I’m going to make an appeal for ICE and marshals to be at our voting booths.” He continued, “Do you think the illegals who are being paid money are going to like that?”

Charles was taped. You can listen to the audio—exclusively obtained by the Daily News—here.

“Tom” is a reference to Tom Homan, Trump’s “Border Czar.” Apparently Homan and Charles are pals; Charles says they were on Fox together in the audio. (Homan, you may recall, was reportedly investigated for taking what he thought was a $50,000 cash bribe from a man who was actually an undercover FBI agent. Pam Bondi summarily dropped the investigation early in her tenure as AG.) Homan is decidedly in support of Trump’s anti-immigrant policy. He blamed state and local law enforcement for the federal presence in Minneapolis when he took over from Gregory Bovino after the deaths of Renee Good and Alex Pretti. And Trump, of course, has been working the whole “illegal immigrants voting” narrative, despite the absence of evidence to support it, as a convenient excuse for interfering with the upcoming elections. It’s the basis for his contested executive order to use the Postal Service to control who can get a mail ballot.

So when Homan visited Maine earlier this month, after telling a Maine House representative that he was taking the trip “to meet with the border patrol and the ICE folks … to find out what they need, to get more specifics on what the issues are so we can address them,” it was worth paying attention. Homan said immigration officials want to remove “hundreds of thousands” of people now that the Supreme Court has ruled the administration can do away with temporary protected status. According to Federal data, only 715 of the 1.3 million people currently under TPS reside in Maine, but Homan said, “You're gonna see a lot more enforcement action in Maine, just because of the TPS settlement.” The excuse is thin. As we get closer to the election, it bears watching.

Maybe Charles is just an empty political braggart. But we’ve all watched ICE operate on American streets with disregard for the lives of immigrants and Americans alike.

In similar news, NBC News reported tonight that Wyoming’s Republican Governor Mark Gordon expressed concern over the behavior of DOJ election observers during his state’s primary election, calling it “aggressive” and “irregular.” A Republican county clerk in the state told NBC that after learning of the observers’ presence, she “spoke with a DOJ official in Washington who informed me that the decision to deploy monitors to Wyoming was made on short notice, and an email had been sent to me, but it may have gone to the wrong address.” Surely the administration had no concerns about the outcome of deep red Wyoming primaries. It sounds like a training run, perhaps.

As recently as this May, Trump declined to rule out sending troops or federal agents to the polls, even though that would be a clear violation of federal law. He told a reporter, who asked if he would rule out those steps, that he’d “do anything necessary to make sure we have honest elections.”

This administration acts first, with no respect for the rule of law, waiting for a court to tell it no before it backs off. We are right to be alarmed about the prospect of incompetent people with bad motives trying to interfere with elections. The good news is that they have been, as Charles was and as DOJ was in Wyoming, so careless about exposing their intent that pro-democracy groups and lawyers are tuned up and ready to protect the vote.

In June 2025, Trump had this to say about his planned military parade and citizens who might protest, using their First Amendment rights: “They will be met with very big force. People that want to protest will be met with big force. I have not heard about a protest but this is people that hate our country. They will be met with heavy force.” At that same time, Trump sent 700 Marines to join National Guard troops in Los Angeles—not because there was insurrection or emergency, but in response to constitutionally protected protests over ICE raids at local workplaces.

As we discussed at the time, police powers are reserved to the states. The Posse Comitatus Act prohibits the federal government from using the military inside of the domestic United States for law enforcement, absent truly compelling circumstances. Even the Supreme Court agreed, blocking deployments in cases like the one in Illinois. Only in D.C., where local rules give the president greater power, has Trump been able to keep the National Guard on the streets.

One way around the Posse Comitatus Act is the Insurrection Act. When it is invoked by a president, it allows the military to be used for domestic law enforcement, but—and it’s an important caveat—only to restore order. It’s not a permanent or a nationwide takeover. A manufactured excuse by Trump for invoking the Act, short of an actual insurrection, is unlikely to be met with favor by the courts, and lawyers are ready to swing into action at the first sign of a problem. Could it get messy and problematic? This is the Trump administration, so the answer has to be yes, but with the time and resources to plan for it on their side, lawyers are prepared.

If you’re concerned, the best thing you can do is take action. Volunteer to work the election or watch the polls, or support one of the civil rights or legal groups preparing to protect free and fair elections. But don’t give in to the myths that MAGA spreads. Above all else, don’t be convinced, or let those around you be convinced, that you shouldn’t bother to vote because your vote won’t count. Remind your loved ones that no one would try so hard to take their vote away if it wasn’t incredibly important.

Here is some of what I wrote to you last September, as Trump deployed National Guard troops to California using a transparently fake rationale to see if he could make headway in getting Americans to accept the militarization of our streets:

Trump has given every reason to believe he is serious about trying to interfere [with our elections] and that there will be a concerted effort to do so. There are a lot of complicated legal questions involved. Today, we begin the important work of being the sort of citizens the moment demands and educating ourselves about those questions. We will be doing this consistently for the next year, plus.

We start tonight with a look at an important law that prohibits the placement of federal troops at the polls in all but the most extreme emergencies. The bottom line: Trump will not be able to deploy federal or federalized troops at polling places, whether in an effort to intimidate voters or to use them to seize voting machines or for other purposes. This law is not a total inoculation from interference by a president who wants to violate citizens’ voting rights, but it’s one important part of a package of legal protections and strategies we’ll be exploring between now and the election, so we can develop a well-rounded awareness of our rights as Americans and voters.

Before we discuss the law, we should recognize that protecting elections when voting starts will likely have at least three key components:

• Election officials who are prepared to be steadfast in their commitment to letting the people vote and have their votes determine the outcome of the election,

• Lawyers who are prepared to launch suits and go to court in real time, both before and after the election, and

• A well-educated and highly engaged public that is committed to voting and makes it clear they are watching the courts and, specifically, the Supreme Court.

Now, the law. 18 U.S.C. § 592 explicitly prohibits any U.S. civil, military, or naval officer from bringing, keeping, or having control of troops or armed men at any polling place during an election. The statute reads as follows:

Troops at polls

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.

Note that this is a criminal provision, but this is also the type of conduct that—if it occurred and couldn’t be resolved— would lead lawyers to immediately seek injunctions in court, allowing elections to continue unimpeded. The law is meant to prevent any domestic political use of the military to influence or intimidate voters.

Since we know Trump likes to poke holes in the rule of law by creating exceptions or making decisions and then claiming no court has the power to “second guess” him, it’s important to note that the “armed enemies” exception is not a loophole for domestic issues or unrest, along the lines Trump has raised in California with ICE raids or with more generalized (but false) complaints about skyrocketing crime. It is meant for armed foreign invasions and is a specific allowance for a national security emergency involving an armed invasion. The phrase "necessary to repel armed enemies" is an extremely narrow and rarely—if ever—applicable exception that allows federal troops at polling places only in the event of an armed invasion by a foreign power.

…

The Constitution creates a system where states, not the federal government, and assuredly not the president, run federal elections along with state and local ones. The Elections Clause, in Article 1, Section 4 of the U.S. Constitution, provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.”

Nor does the law permit Mr. Charles, in Maine, to ask his old friend Tom Homan to send federal law enforcement to the polls to intimidate voters. The provision quoted above, 18 U.S.C. 592 applies to federal law enforcement, just like it does to military troops. Yes, Trump plays fast and loose with the law. He acts first, dares the courts to stop him, and appeals to the conservative majority at the Supreme Court to let him get away with it. But even that Court held firm in 2020. An effort to use troops or law enforcement officers to keep Americans from voting for their elected officials would be met with prompt legal action. For example, the polls can be held open for longer than usual. And although the backlash didn’t last long enough to create permanent accountability, there was immediate backlash against Trump following the events of January 6, 2021. There is every reason to believe that if he tries to send troops to the polls, Americans will respond by taking the most powerful act any of us can on behalf of democracy: voting.

Thanks for being here with me at Civil Discourse. If you think civics education is important, I hope you’ll share this information about the law with your friends and become a subscriber if you aren’t already part of this community. The worst form of voter suppression is the kind that tries to convince you your vote doesn’t count and won’t be counted, so you shouldn’t bother. That’s what this is about, whether it’s aggressive poll watchers or threats of troops or law enforcement at the polls, it’s all about intimidating voters. Don’t be intimidated.

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Joyce

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See you tomorrow!

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Also, as we noted, the Supreme Court did not weigh in on the legality of Trump’s executive order, which purports to shift control over who can vote in elections from states, as provided for in the Constitution, to the president, as Trump tries to assert in this order. When we got together last night for a Substack Live, Steve Vladeck said he doubted that even the Roberts Court would go along with that.

Now, on to today’s development. This morning, as we discussed in Sunday’s “The Week Ahead” column, the government filed its response to a motion from the LWV plaintiffs in their case. After the Postal Service noticed its intent to publish a “final rule” on how it would implement the parts of the EO that ask it to take authority for ensuring only federal government-approved voters can get mail ballots, the plaintiffs went back to court because that action was a clear violation of the injunction in the LWV case.

So, we’re clear on which case we’re talking about tonight. It’s this one:

Judge Talwani held that USPS violated her injunction by finalizing rules for mail-in ballots, which her order expressly prohibited them from doing. She characterized the government’s behavior as “feigned complete compliance.”

The issue here is different from the one the Supreme Court weighed in on. That Court was looking at whether the government had met its burden of proof for obtaining an injunction to set aside Judge Talwani’s injunction (that stopped the EO from going into effect; yes, I know that’s confusing, so I keep laying it out) in the AG’s case. A big part of the decision was the Court’s assessment that the government was likely to be able to establish that the AGs case wasn’t ripe for a decision when Judge Talwani considered it. They also found the government was likely to show other factors necessary to obtain an injunction, like irreparable injury and a balance of equities in its favor.

Judge Talwani was looking at an injunction in a different case, and she ended up ruling that the government had violated it because her order explicitly forbade them from engaging in steps like rulemaking. And, of course (and for whatever reason, the Court didn’t address this), the government has now torpedoed its own best argument, that the case wasn’t ripe for a court to decide yet because it hadn’t taken steps to implement the EO, by issuing the final USPS rule it intends to publish in the Federal Register on Wednesday.

Judge Talwani’s decision took an interesting tack. She found that the government violated the injunction. But she didn’t issue penalties or contemplate contempt proceedings. Instead, she took a much simpler path, one with fewer appellate complications, suggesting that the plaintiffs could file an amended complaint challenging the new USPS rule now that it has been issued. That tees up more squarely the issue of whether the EO is lawful, an issue the Supreme Court declined to consider at this stage, and an issue that, at least in a normal legal environment, should be a loser for Trump, because the Constitution is clear about who runs elections, and it’s not him.

Expect a flurry of amended complaints in the cases in both Massachusetts and the District of Columbia

The Supreme Court isn’t serious about the Purcell principle, at least not when it’s intended to protect the right to vote instead of being used to suppress it. But we are within months of voting starting in the next election. Some states, like Colorado, vote almost exclusively by mail. The idea that the administration could come up with accurate lists for all 50 states that don’t disenfranchise significant numbers of eligible voters and put in place new procedures in the short period of time left is nonsensical. In fact, preventing something like this from happening is exactly why the Purcell principle exists. It’s hard to imagine changes happening in the upcoming election, at least not based on these lawsuits.

What this is all really about is 2028 and whether the administration can make the case that it should be permitted to do this then. That makes who we send to Congress this year critical. Restoring the Voting Rights Act has never been more important. Protecting our elections has never been more important. Congress has an enormous role to play. Whatever Trump expects to happen, the lawyers in the Solicitor General’s office aren’t expecting to seize control of voting in 2026. There’s always a chance with this court, but it’s too close. They’re not ready. They’re really playing for 2028.

This is a complicated, messy issue, with lots of moving parts. An executive order, multiple lawsuits, a president who is so afraid of the voters that he wants to control the outcome of an election, a Supreme Court that, for whatever reason, refuses to rein him in as early as it could. If reading Civil Discourse helps you make sense of it all, I hope you’ll share it with friends. If you’re already a paid subscriber, thank you, and if you aren’t, I hope you’ll consider becoming one.

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Joyce

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Tomorrow morning, the government’s response in the League of Women Voters case is due at 8 a.m., and we can expect Judge Talwani’s decision sometime after that tomorrow.

It’s all happening at lightning speed, but if you read Civil Discourse, you’re prepared. We tracked the Executive Order from the time Trump issued it, followed the legal challenges, parsed the injunctions Judge Talwani issued in two separate cases, and now we’re staying on top of developments as the Trump administration tries to circumvent the Constitution and decide who gets to vote.

It’s a lot, but if you appreciate the opportunity to stay up to speed on critically important issues like this, I hope you’ll subscribe to the newsletter if you don’t already. And my thanks to those of you who do subscribe for being here with me. The work we’re doing is crucial to keeping the Republic.

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The Court did what the Trump administration asked. In an unsigned per curiam order, with dissents from Justice Sotomayor (joined by Justice Kagan) and Justice Jackson, the Court told the government it could go ahead and execute the EO.

It’s important to issue two caveats before we go any further:

• This is not a decision that Trump’s EO is lawful. And as Steve Vladeck and I discussed tonight (link forthcoming), the Court would have to defy the Constitution, which gives control of elections to the states, to reach that result. That doesn’t mean we’re out of the woods here; this is a Court that, as Steve aptly puts it, is at its worst when it’s deciding voting cases, and its thumb will be on the scales for Trump. But today’s decision is limited to the injunction in the AG’s case.

• Judge Talwani also issued a separate, nationwide injunction in the League of Women Voters case. That injunction stays in place, at least for now. As we’ve been discussing, the government owes her a response to the plaintiffs’ motion asking her to enforce it, after the Postal Service indicated it was ready to issue a final rule putting procedures in place to execute its role in the EO. Judge Talwani has indicated she’s prepared to rule quickly, likely tomorrow, so this case will be before the Court before long.

In its decision today, the Court held that Judge Talwani incorrectly entered the injunction and that it believes the government will prevail on the factors necessary to get an injunction of its own to put an end to hers. The Court ruled the Judge was wrong on two doctrines we’ve been discussing a lot lately: ripeness and standing. The Court wrote that while “the District Court rejected the Government’s argument that it lacked jurisdiction over the States’ claims because the States lack standing to bring them,” the Supreme Court believed the government was likely to succeed on those jurisdictional arguments. That means the Court believes, not necessarily that the EO is lawful, but that these are the wrong plaintiffs to bring the case, that they lack standing and that they sued too early. The Court also wrote that it believed the government would prevail on two other factors necessary for its injunction to succeed: that the injunction is causing it irreparable harm and that the equities do not favor leaving the injunction in place while the Government’s appeal is pending.

That’s what tonight’s decision is about. It doesn’t say the EO and what Trump wants to do are lawful. It doesn’t even let the administration move forward because the second injunction is still in place. Is it disturbing? Yes. I dislike the Court’s framing, which characterizes the EO like this: “President Trump issued an Executive Order designed to maintain public confidence in federal elections.” But the political value signaling isn’t a substantive decision. This is about where we are procedurally.

That leaves us with some questions:

• Will the same analysis apply to the LWV case, or are the plaintiffs situated differently?

• Why is the court willing to change election rules so close to the start of elections? What about the Purcell principle?

• Does this decision mean the government will win on the merits, i.e., the legality of the EO?

Steve Vladeck joined me tonight to discuss those issues, and that video will be available shortly, in a separate post. I encourage you to watch it; in 20 minutes, we cover the key issues that will dominate the conversation about these cases for at least the next week, with a nuanced analysis of where the Supreme Court is and where it’s likely headed.

But for all of the legal substance, this was my favorite part of Steve’s and my conversation. If you missed us live, yes, you should watch for the analysis of this situation, and also, for his adorable daughter sneaking in to say goodnight to her Dad.

The video is coming later tonight, but for now, remember this. Even if Donald Trump makes it impossible to vote by mail (which I don’t think will happen), he can’t make it impossible for us to vote. We can still vote in person. It’s up to us.

Make a plan, and include your friends. Plan an election party now, and encourage people to vote and celebrate come November. Help people who aren’t registered to vote, and help people who are check their status and make sure they’re on the voter rolls in active status. What Trump is doing is outrageous. Let’s put that outrage to good use and turn out the vote.

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Joyce

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The Court’s order is an unsigned per curiam, with dissents from Justices Sotomayor and Jackson. Justice Jackson takes issue with the majority’s assessment that the administration is harmed if it can’t move forward with the EO. She writes, “This is not a close call. The Government suffers no harm from an injunction limiting unlawful actions, much less “hypothetical” and “speculative” acts that the Government says it was not even sure it would take. Denying this stay request preserves the status quo in the fraught period ahead of a national election. Granting it, on the other hand, risks significant harm, including continued affronts to the Plaintiff States’ sovereign interests, a strain on their pocketbooks, and the possibility that last-minute rule changes will cause confusion on the ground, jeopardizing the public’s interest in a fair and orderly election cycle.”

As I’ve observed before, and it’s obviously not an entirely cynical point, the Roberts Court invokes the Purcell principle to protect Republican voters, but seems far less inclined to do so when Democratic voters’ interests are at stake, as it did post-Callais.

Steve and I thought we’d get together tonight to tee up that issue and clarify what happened, what it means, and what comes next. So join us tonight at 8. It’s not often that we do the breaking news thing around here—we are, after all, about analysis, not news. But tonight, the two intersect, and we’re on.

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Joyce

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As you can tell, I was in the car for the livestream this morning, fitting it in between some early-morning exercise and a meeting, which left me no time to head back home. So, for the knitters in the room, I multitasked and worked on my huge and growing-by-the-day cashmere scarf while we prepped. I wanted to share that very simple pleasure with you. While we’re all getting keyed up for the coming elections—Norm and I end our conversation on the anniversary of the March on Washington, which is this Friday, and the importance of registering people to vote to celebrate the moment—it matters that we take time for the small, simple things, and enjoy ourselves with family, friends, hobbies, and the beauty that is all around us as summer comes to a close. It’s what we’re fighting for: the ability to live our lives as we see fit. It’s the same desire that animated the Founding Fathers, updated for our times.

We’re in this together,

Joyce

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If you haven’t read my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy, Amazon has it for a crazy low price right now. I’m proud of the book, which has held up well against the administration’s efforts to damage democracy these past two years. My advice in it still holds. Grab a couple of copies now for holiday gifts or to share with friends.

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The Postal Service, pursuant to the executive order we’ve been discussing ever since Trump promulgated it earlier this year, is on board to try to keep ballots out of the hands of people whose votes this administration fears. In a 95-page “final rule” it has scheduled for publication in the Federal Register on Wednesday, it “is amending the Mailing Standards of the United States Postal Service, Domestic Mail Manual, regarding the transmission of mail-in or absentee ballots for federal elections pursuant to its rulemaking authority.” This is how the executive order, which is largely an aspirational statement of what the president wants to see happen, would be put into effect. It would circumvent states’ control over their own elections by imposing a federal restraint in the form of which ballots the Post Office will accept and deliver.

We discussed the executive order on August 11th, when Judge Indira Talwani in Boston issued a nationwide injunction in the League of Women Voters lawsuit, which blocked the Postal Service from doing exactly what it’s now trying to do. The government’s major argument in that case had been that the dispute wasn’t “ripe” for a decision from the courts because the government hadn’t taken sufficient steps to put the EO into effect. That argument would seem to be off the table now.

And how does the government gild the lily, since there is an injunction against putting the EO in place for the 2026 elections? They try to do it like this: “To ensure the faithful execution of federal law in connection with federal elections, this rule has an immediate effective date.” They claim that “Delaying the effective date would jeopardize implementation of this rule in time for the 2026 general election,” before conceding that “Given injunctions currently in place … the Postal Service will not take actions to implement the rule specifically for the 2026 election unless and until the government obtains relief from those injunctions.” On the one hand, they write a rule meant to apply to 2026. On the other, they pay lip service to following court orders, which is mighty nice of them since they have no choice in that matter unless the Supreme Court intervenes for the administration.

But there’s another problem with what the government has done, since they specifically discuss application of the new measure to the 2026 elections. Judge Talwani ordered that the government was “preliminarily enjoined from implementing, giving effect to, or enforcing Section 3 of Executive Order No. 14399, with respect to the November 3, 2026 or any earlier federal election, including refusing to transmit mail-in or absentee ballots; or otherwise initiating or completing rulemaking to promulgate the specific regulations outlined in Section 3(b)(i)–(v) or (d) of the EO for the November 3, 2026 or any earlier election.” [emphasis added].

Section 3 of the executive order, which the Judge enjoined the government from implementing, is the part of Trump’s order that applies to the Postal Service’s role in interfering with Americans who are trying to cast ballots. In other words, the government is proceeding in precisely the manner the Judge told them they could not.

Judge Talwani has only enjoined the government with regard to the 2026 elections, leaving the questions of both ripeness for action and the legality of the substance of the EO for future proceedings. There are also cases in front of other judges. So this issue doesn’t go away after 2026, but the legal issues are particularly acute now, with the election less than three months away and Trump intent on preventing eligible Americans from voting.

We should never forget Trump’s August 18, 2025, Truth Social post that started like this:

Yes, it’s ironic. Trump votes by mail, as do a significant number of Republicans. But this is about something more for him; this is about building a narrative of fraud that he can try to use to overturn an election whose outcome he doesn’t like. That’s what it’s all about, Trump versus the voters of the United States. He has no respect for the Constitution, the democratic process, or the rule of law. We know that. He showed it for everyone to see on January 6. And having essentially gotten away with it and now being well on the way to erasing the insurrection from the history books, he is looking forward to the next election and figuring out how to erase losses there too. If only he would put as much energy into earning the voters’ trust and working for them as he does into circumventing their will.

In 2024, Trump told a gathering of conservative Christians ahead of the election that it would be the last election they’d ever have to vote in if he won.

Your right to vote shouldn’t turn on whether a hastily prepared federal list, almost certain to be full of errors, includes your name. The Constitution leaves decisions about elections, including who is qualified to vote in them, up to each state. Every day, the press, the Democratic Party, and the public should be bombarding everyone aligned with Trump with one simple question: “Why don’t you trust the voters?”

We’ll be watching the litigation over this as it takes shape this week. Saturday night, the League of Women Voters filed an emergency motion to enforce their injunction. Judge Talwani ordered the government to respond by 8 a.m. Tuesday morning, to permit her to rule before the Wednesday date the Postal Service indicated it would publish its new rule.

When I left the Justice Department the night before Trump’s first inauguration, I never imagined that my interest in voting law would become a mainstream topic of conversation in our country. But I’m deeply grateful to those of you who care and who trust me to help explain it when you read this newsletter. We’ve known since Trump first issued this Executive Order what everyone else is waking up to now: that it’s a deeply disturbing signal of Trump’s willingness to bypass the voters’ wishes and the fundamentals of democracy. Thank you for sticking with me and for relying on Civil Discourse for plain talk and an explanation of how the law works and intersects with our politics.

We’re in this together,

Joyce

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• The Week Ahead: The week started with flags for upcoming developments in Kash Patel’s defamation suit against The Atlantic; the D.C. Circuit’s 2-1 decision halting construction on Trump’s ballroom (Chief Justice Roberts entered an administrative stay of that decision late in the week, which lets construction continue until the Court rules); the Trump administration’s decision to shut down and authorize destruction of a FinCEN database used to track down who is behind illegal conduct committed by shell corporations, and Luigi Mangione’s guilty plea in federal court. We also looked at a new uptick in ICE arrests.

• E. Jean Carroll, Jeffrey Epstein, and the Power of Being Believed: Attorney Roy Cohn advised Donald Trump at a young age: “Just deny everything and fight.” He still does. But E. Jean Carroll showed the world that a loser is just a loser, and now the Supreme Court has refused his last effort to avoid paying the $5 million verdict a jury awarded her. We also explore the dark underside of cases like this and Trump’s treatment of his victim—how it affects other cases like that of the Epstein survivors and why E. Jean’s willingness to stand up for what was right despite the way Trump publicly ridiculed her makes a difference.

• The Washington Post Is Wrong About Todd Blanche And Presidential Power: On Tuesday, Jeff Bezos’ newspaper, The Washington Post, went all in on the unitary executive theory today, stating that “Todd Blanche is right about DOJ ‘independence,’ like it or not,” despite the fact that Trump’s directives, which Blanche should be ignoring, have led to a spate of vindictive, failed cases that tarnish the department’s reputation. Instead of advocating for the time-honored view of shared power among the three branches of government, The Post seems to be arguing that it’s up to the attorney general to exert beneficent control over the president he serves. Have they met Donald Trump? If you missed this one during the week, it’s an important read; click the link above.

• Kash Patel’s Response: Patel’s response to The Atlantic’s motion to dismiss his defamation case against them is less about the substance of the matter and more about where the case is procedurally. We go through it in detail, but it’s a lose-lose situation for Patel, who will have to go through discovery and a deposition if the judge lets his case move forward.

• The Legal Latest with Katie Phang: Katie Phang and I got together to discuss the latest legal developments while I was on a layover between flights at the Atlanta airport.

• They’re Building the Excuse Now: On Tuesday, Commerce Secretary Howard Lutnick announced a Department of Commerce “report” that claims more than 24,000 noncitizens illegally voted in the 2020 election. The report, described as “a bald-faced lie” and “dodgy” by Lauren Groh-Wargo and Marc Elias, respectively, is just another way for Lutnick to curry Trump’s favor, even if that means bringing in ringers from a pro-Trump think tank to author a report that supposedly came from the Census Bureau. What they’re doing here fits a pattern we’ve become used to, where the administration makes claims about elections that aren’t true, that don’t withstand scrutiny by the courts, and we need to be prepared to push back.

• Five Questions with Ambassador Nina Hachigian: Retired Ambassador Nina Hachigian, CEO and Founder of the Alliance for Local Leaders International, joined us to talk about the importance of local elections and officials, and where she sees opportunities for us to strengthen democracy in our towns and cities.

• Bad Food: You’ve almost certainly seen reports about Cyclospora and the wave of food recalls happening right now. But how we got here is a tale of grift, and DOJ’s absence from the scene—it has authority to both prosecute crimes and take civil action to keep tainted products off the market—is something I’m not seeing discussed anywhere. So we caught up on all of that Saturday night in a piece you’ll want to read now if you missed it last night!

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These are complicated legal times, and it’s easy for the truth to get lost in the chaos. Civil Discourse doesn’t just track today’s headlines—it connects them to the legal and political history that explains why they matter. We don’t forget what’s at stake. We don’t let Trump and his allies rewrite the past.

Subscribe for free and get clear analysis that helps you see the whole picture, delivered straight to your inbox. Paid subscriptions help keep the newsletter free and let me devote the time and resources needed to write it.

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Joyce

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At the time, the administration claimed that there were complex supply chain challenges. It used language in an appropriations rider to prevent the use of federal funds for enforcement before the July 2028 date. The primary goal of the Traceability Rule was to enable faster identification and rapid removal of potentially contaminated food from our supply, lessening foodborne illnesses and deaths.

Taylor Farms (the parent company of Taylor Fresh Foods) donated $1 million to MAGA Inc., a pro-Trump super PAC, on March 26, 2025, just days after the Traceability Rule extension. It’s not hard to follow the money.

Now, we’ve learned Taylor Farms' produce is behind a major outbreak of Cyclospora. Even though the company is a serial offender, it took the FDA a month after it developed the link to travel to inspect the farm in Mexico believed to be responsible.

In other words, corruption isn’t just a one-sided offense, where people in power make money through the grift. There’s another side to the equation: the people who are harmed by its consequences. We’re seeing that plainly now when it comes to foodborne illness. There is no telling where else it will crop up as this administration and its key players continue to benefit wherever they can from their time in office.

DOJ has statutory authority to act here. But they seem to be asleep at the wheel. Of course, DOJ’s investigations aren’t always public, but given this administration’s love of the tweet, it’s reasonable to expect they’d be taking credit if they were doing something about it. There have been at least two deaths and over 13,000 cases, just of Cyclospora. Many other food contamination issues are being reported now, as well. It’s difficult to assess whether the statistics are reliable or just the tip of the iceberg.

As DOJ’s website explains, “The Department of Justice (DOJ), working with the Food and Drug Administration (FDA) through its Health & Safety Unit and Consumer Protection Branch, prosecutes companies and executives under the Federal Food, Drug, and Cosmetic Act (FDCA) for introducing adulterated foods into interstate commerce. Charges range from strict-liability misdemeanors to felony indictments and permanent injunctions.”

What could DOJ be doing? This is an area I discuss with my first-year criminal law students because it involves unusual strict liability. Normally, to prove a crime, prosecutors must show both an actus reus, a criminal act, and mens rea, a guilty state of mind like intent or recklessness. But under the FDCA, distributing adulterated food is a strict-liability misdemeanor. Prosecutors do not need to prove that a company or executive intended to violate the law or knew the food was contaminated. And under the Park doctrine, corporate officers can be prosecuted personally for corporate safety failures.

There are also felony charges available in cases of intentional fraud, deliberate concealment of safety data, or repeat offenses. Companies can face millions of dollars in fines and asset forfeiture, while individual executives can face personal fines and imprisonment. Under 21 U.S.C. § 331, it is illegal to manufacture, sell, deliver, or receive an adulterated food product in interstate commerce. But we’ve seen nothing to suggest any criminal violations are being explored here. Perhaps that will happen as public outrage grows, but one way to bring problems under control is to create deterrence by prosecuting known offenders and being public about it so others will be more careful.

To protect public health, DOJ routinely files civil complaints to secure injunctions that force companies to stop distributing items that are making Americans sick until their facilities come into compliance with the law and pass a review by independent experts. But even after the outrage when people realized it took the FDA a month to act, nothing has been forthcoming from DOJ, which could be taking immediate steps to protect Americans’ health from additional problems.

In the middle of all of this, Trump’s pick to lead the FDA, Heidi Overton, says the FDA, CDC, and NIH need to be “reformed” to fund more “conservative-based” research instead of peer-reviewed and evidence-backed medical science. Overton is a surgeon, currently working as the deputy assistant to the president for domestic policy at the White House. She is an alum of the conservative America First Policy Institute, where she wrote in opposition to gender-affirming care for minors and questioned the safety of medication abortion despite overwhelming evidence to the contrary. It feels like the era of conservative religious beliefs instead of science is upon us.

This is what happens when institutions break down. This is how the rule of law and those “cumbersome requirements” big business complains the federal bureaucracy imposes on it work to protect us. There are reasons we want those agencies to do their jobs. But sometimes, it’s not apparent until it all breaks down, as it has in this critical area. Heather Cox Richardson characterized it like this earlier this week: “It’s the largest cyclospora outbreak in U.S. history, spurred by cuts of more than 40% to food safety detection systems.”

For the last couple of weeks, I’ve been posting each fresh report of a new issue in the food supply on our family chat:

• Eggs recalled because of “probability of death”

• Deli meals, possible metal contamination

• Bacon

• Whole Foods products

• Beef

• Cheese

• Blueberries

• Prepared pasta products

Finally, one of the kids posted back, “Mom, you need to stop getting your news from Instagram.” But isn’t that the problem here? We aren’t getting a comprehensive report from the government. There are no adults in the room. And so we’re left to fend for ourselves, discerning whether each new report is true or false and what it means we need to do about it. I haven’t eaten a salad in the last month that wasn’t made with lettuce I didn’t grow myself and I’ve abandoned my beloved blueberry muffins. But for many Americans, it’s about more than giving up favorite foods. It’s about being sick because Taylor Farms wanted to make more money, and the Trump administration was okay with that.

I write Civil Discourse because of stories like this. Contaminated lettuce turns out to be a story about so much more in the time of Trump, when the corruption gives us an abject lesson in why we need the rule of law and what happens to ordinary people when our institutions work for the rich and powerful instead of for us. More outbreaks and more illness lie ahead. Instead of covering them as individual breaking-news items, our lens is on the institutional failures, the grift that fueled them, and the laws that aren’t being enforced. Because we are entitled to a government that works for us, which means it’s essential to understand what’s happening when it isn’t.

Paid subscribers make my work on issues like this possible and help me keep Civil Discourse free for everyone, so this kind of information and analysis is available whether people can afford to pay for it or not. If you’re already a paid subscriber, thank you. And thanks to all of you for being here with me.

We’re in this together,

Joyce

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Nina’s focus on the importance and role played by local officials is why she joins us tonight. In an era of stressed, if not broken, federal checks and balances, she has expertise in using local lines of sight to replace them. I wanted to talk with her about where she saw opportunities for us to strengthen democracy in our towns and cities. Her insight is very valuable, and it includes her perspective on what we can do to encourage state and local institutions to check an out-of-control executive.

“Five Questions” is a Friday feature for paid subscribers, built around the conversations that don’t fit into a news cycle driven by headlines and hot takes. It’s a chance to spend time with the people shaping the law, politics, and democracy—and to ask the questions that matter most, not just the ones everyone else is asking. Keeping the daily legal analysis free has always been important to me, and it will stay that way. These Friday conversations give me a chance to thank paid subscribers for their help ensuring that Civil Discourse remains available to everyone who wants to follow the law beyond the day’s headlines. Whether you’re a paid subscriber or a free subscriber, I’m grateful you’re here.

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On Tuesday, Commerce Secretary Howard Lutnick announced a Department of Commerce “report” that claims more than 24,000 noncitizens illegally voted in the 2020 election. That sounds bad, right? At least, until you hear the response.

Lauren Groh-Wargo, the president and CEO of Fair Fight, put it like this: “This is a bald-faced lie.”

Marc Elias called the report “dodgy,” and his Democracy Docket explained that “the analysis the president cites relies on an incomplete commercial voter file and record-matching methods that raise serious concerns about the accuracy of its conclusions.”

NPR reported that the supposed “Census Bureau report” wasn’t actually produced by Census Bureau staff and “has ties to a Trump-aligned think tank.” The full report, which is seven pages long, is presented as an official document here. But NPR says “the team behind it included individuals affiliated with the America First Policy Institute, a think tank started by officials from Trump's first administration.” It’s not just the Justice Department that has been politicized to serve Trump’s political purposes.

Trump can’t stop claiming the 2020 election was rigged, no matter how many judges, including many he appointed, say it’s not so. Still more damaging is the way he may use this to justify imposing measures that make it more difficult for eligible Americans to vote in the name of preventing fraud.

To people like me who’ve spent decades working on voting rights in the Deep South, this is a familiar approach. In order to justify restrictive measures, state and local officials would claim there was voter fraud—dead people voting, people voting more than once. It wasn’t true, but that didn’t matter; it was used to justify all manner of restrictive measures that made it more difficult to vote, disallowing practices like early voting or mail-in voting.

Trump has a history of blowing up the narratives around voter fraud into previously unseen proportions, falsely claiming it’s responsible for his 2020 loss, and looking ahead to set it up as an excuse when his party does poorly in the midterms. When it comes to these new allegations, even the right-wing media ecosystem hasn’t been pushing them hard, because of the obvious flaws. But we know how Trump works. It’s a tailor-made excuse for his 2020 loss and a justification for urging states to adopt more restrictive measures now. Trump posted about the report on Tuesday, claiming: “The Census Bureau has begun checking the Voter Records from 2020 against their Citizenship Records. On the first 128,000,000 Voters, the Census Bureau proves that over 24,000 Noncitizens voted illegally! The Census Bureau is going to analyze the next 32,000,000 Voters, and this number will explode. I WON THE ELECTION!” Then, to keep it simple, he posted some little graphics, including this one, which make claims that aren’t backed by fact.

Secretary Lutnick has been in the press in connection with Jeffrey Epstein of late, including a trip up to Capitol Hill to testify and revelations that he visited Epstein Island with his wife, children, and nannies in tow despite claiming he had cut off all ties with Epstein years earlier out of disgust with him. Now he’s currying favor with Trump on one of the issues that is the most important to the president, backing his claim that he won in 2020. But this isn’t Lutnick’s first outing assisting the president with his efforts to federalize our elections.

When Trump issued his March 2026 executive order to restrict mail voting, Lutnick got a major role. The order directed the Secretary of Commerce to coordinate with DHS, the SSA Commissioner, and the Postmaster General to implement it—Lutnick was Trump’s point person. Lutnick was the one to brief Trump on the contents of the executive order before Trump signed it. (If you thought Trump devised it on his own, no dice.) That order is, of course, on hold, after a federal judge ruled it was illegal.

So it’s no surprise Lutnick has found a new way to push Trump’s goals, even if that meant bringing in ringers from a pro-Trump think tank to author a report that supposedly came from the Census Bureau. Experts note that the Census Bureau does not even collect the information necessary to be able to publish definitive findings about alleged noncitizen voting. The data used in its report are modeled population estimates.

But none of that will keep Trump from using it, so it’s important for us to be prepared. The claim itself sounds shocking. But it’s a fabrication, and we need to be prepared to say so. Protect Democracy identified some of the most egregious flaws in the report. Expect Trump to gloss over them entirely. But the report uses stale citizenship records that misidentify, for instance, people who have become naturalized citizens. And since the Census is prohibited by law from asking citizenship questions, it does not hold and cannot verify any citizenship records. The study Lutnick offers uses private commercial vendor files, not voter rolls maintained by Secretaries of State, and that data is demonstrably flawed for the purpose it’s being used for. There are other issues, including flawed matching algorithms and demographic bias. Suffice it to say, this is another instance where someone who needs to remain in Trump’s favor has manufactured something to support his claims, despite the absence of facts to back them up.

A former Census Bureau employee pointed to the report's irregularity: “My biggest concern would be there's no author attached to the report, which is not common practice within the Census Bureau,” says Misty Heggeness, a former bureau economist whose work is cited in the report. “Usually there are layers and layers of rigor and testing because the Census Bureau is a neutral statistical agency. They want to make sure that they're getting it right and understanding the data. The fact that there's no author on this report leads me to wonder whether or not that did happen.”

The report is just another indication we are living with a desperate administration trying to convince Americans not to trust their own elections. Their goal: create cover for rejecting 2026 election results if they don’t suit Trump. What they’re doing here fits a pattern we’ve become used to, where the administration makes claims about elections that aren’t true, that don’t withstand scrutiny by the courts. But they make them nonetheless and it’s done as though they are gospel. But they aren’t. With Trump, they never are. It’s our job to be prepared to push back against the excuses they’re preparing for the 2026 election, the challenges they’re trying to set up now, because they know they’re going to lose if it’s a fair fight.

We’re in this together,

Joyce

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