Open File with Ankush Khardori

The Grim Implications of the Supreme Court’s Ballroom Ruling

Ankush Khardori — Tue, 01 Sep 2026 17:23:09 GMT

Illustration by Open File (source images via White House construction blueprints and Daderot)

On Monday, five of the Supreme Court’s Republican appointees cleared the way for the construction of Donald Trump’s White House ballroom. The ruling came after nearly a year’s worth of litigation in the courts below, which issued carefully considered opinions and orders ruling against the administration. But the Trump administration rushed to the Supreme Court with an emergency application to stay those rulings, and after about two weeks of consideration by the Court, Trump once again got what he wanted.

The ruling comes despite the fact that Trump’s construction project is probably illegal under federal law, despite the fact that even Republicans in Congress wouldn’t authorize it when they had the chance, and despite the fact that the Trump administration’s key argument before the Court — that the ballroom was no longer merely a ballroom, but instead an “integrated military complex” that had to be built for security reasons and that just happened to have a ballroom on top of it — appeared to be a flimsy pretext cooked up at the last minute.

The majority included all of the conservative justices except Chief Justice John Roberts, and their reasoning boils down to just two points. Neither is persuasive.

The first argument is that the plaintiff, the National Trust for Historic Preservation, likely lacked standing to bring the lawsuit in the first place because the alleged harm to the organization was based merely on “offense, disagreement, or distaste” with the project. Never mind that Congress created the National Trust over 75 years ago “to facilitate public participation in the preservation of sites, buildings, and objects of national significance or interest,” or that there is a line of Supreme Court cases that allows environmental groups to sue on theories like this when “the interests at stake are germane to the organization’s purpose.”

The conservative majority’s principal response to this is that the Court “has not found standing in circumstances like these before.” That is true but trivial as a legal or logical matter, since no two cases are exactly alike.

The majority’s second key claim is that the Trump administration would have suffered irreparable harm in the absence of a stay of the lower court rulings, based on declarations from senior administration officials who “attest[ed] to national security and other harms that would likely arise from enjoining a ‘single, coherent’ project that cannot be readily cleaved into distinct below- and above-ground pieces.”

The argument is galling for several reasons.

To start, the administration did not take this position in the courts below. In fact, the DOJ said as recently as January that the construction below ground was “driven by national security concerns independent” of the ballroom. This should have been enough to dispense with the administration’s claim — offered for the first time just weeks ago — that the ballroom was part of a single, indivisible construction project that was critical for national security purposes to ensure the safety of the president, his staff, and visiting foreign dignitaries.

The declarations that the majority relied upon were also not credible, a point inadvertently underscored by the fact that the justices evidently could not bring themselves to name the relevant officials but instead described them by their titles — “the Director of National Intelligence, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Director of the United States Secret Service, and the Secretary of State, the Secretary of Homeland Security, and the Secretary of the Army.”

Who are these mysterious people?

The Director of National Intelligence is Jay Clayton, who started the job just weeks ago and has no national security experience or expertise.

The Director of the CIA is John Ratcliffe, a Republican politician who got the job after attracting Trump’s attention by attacking Robert Mueller during the Trump-Russia investigation.

The head of the FBI is Kash Patel, an incompetent and unqualified Trump lackey.

The Secretary of Homeland Security is Markwayne Mullin, who also got the job several months ago despite having no relevant experience or expertise.

As for the Secretary of the Army, shortly after the opinion came out, news broke that he is resigning due to reported conflicts with Defense Secretary Pete Hegseth.

And of course, the Secretary of State is Marco Rubio. This is the same person who told the courts during the litigation over Trump’s “emergency” tariffs last year that they had to rule in Trump’s favor because of the “significant and irreparable harm to the foreign policy and national security of the United States” and “the grave harm that would result,” including “severe consequences for ongoing peace negotiations and human rights abuses.” No one took this seriously at the time, and none of his predictions came true.

The majority’s willingness to indulge the national security claims — or pretexts — offered by the administration is unfortunate but not entirely surprising.

In June, the Republican appointees on the Court allowed the Trump administration to immediately terminate Temporary Protected Status for Haitians and Syrians, despite a long and ugly record of racist attacks on Haitians by Trump, Vice President JD Vance, and their allies. Supreme Court Justice Samuel Alito wrote that the claims were not “overtly racial” and “in substance all expressed policy views that could rest on race-neutral justifications” — an interesting way to describe a campaign of lies about Haitians eating pets or coming to the country with AIDS.

These decisions have consequences. On Monday, a 20-year-old Haitian immigrant in Springfield, Ohio, appears to have committed suicide after losing protected status and being forced to wear an ankle monitor.

The ballroom case does not pose these sorts of fatal risks, but there is a broader and more pernicious legal problem at play here, which is that conservative lawyers and conservative judges are now practically insisting that the courts must take the Trump administration’s claims in court at face value — whatever they are, and without even bothering to question them. This is true even if the available evidence contradicts the Trump administration’s claims; even if, as in the TPS case, the administration’s real motivations can be readily inferred from the public record; and even if, as in the ballroom case, there has been no opportunity for the other side to test the administration’s claims in discovery.

The majority concludes by stating that it is not ruling on “the legality of the government’s East Wing project,” but as a practical matter, it has rubber-stamped the project. The administration will now keep barreling forward on construction while doing everything that it can to slow down or halt the court proceedings entirely. Maybe someone can find a new plaintiff and file a new lawsuit, but if (or when) the National Trust’s case eventually comes back to the Court, the majority appears ready to issue a final ruling dismissing the challenge on the merits for lack of standing.

The Court’s ruling may also embolden the administration to move forward with renaming the Kennedy Center or tearing it down entirely, since the Supreme Court has now rewarded the administration for moving quickly without any authorization from Congress, the courts, or — as even the majority appears close to conceding in the ballroom case — the applicable federal law.

The long-term political implications, however, could prove different.

The Supreme Court is historically unpopular. The most recent dip in the Court’s approval rating appears to have come from Republicans who want the Court to do even more of what Trump wants, but setting that aside, that rating has hovered around 40% for five years now.

The momentum for Supreme Court reform within the Democratic Party has been growing for years, and the ballroom case provides a simple and politically potent line of attack against the Court’s conservative majority. Americans disapprove of the project by a 2-1 margin, but it’s coming now whether they like it or not, and it will, as a practical matter, become the most visible symbol of the extraordinary deference that the Court’s Republican appointees have shown to Trump.

None of it should be surprising at this point — the same conservative majority created a previously nonexistent doctrine of presidential criminal immunity that paved the way for Trump’s reelection in 2024 — but they continue to find new ways to provide ammunition for their harshest critics.

Early last year, as the administration was just ramping up on various fronts, there was a debate among some legal scholars and observers about whether the country had entered a “constitutional crisis.” There was a doctrinal problem with this argument — the phrase “constitutional crisis” typically refers to a conflict among the three branches of the federal government that cannot be resolved through normal political or legal channels — but it captured the feeling among many people that the administration was moving quickly, aggressively, and lawlessly.

In fact, we didn’t have a constitutional crisis then, and we don’t have one now.

What we have is unified Republican control of the federal government — a Republican president who does whatever he wants, no matter how ill-conceived or deadly the consequences; a Republican majority in Congress that has largely abdicated its constitutional role in deference to Trump and his agendas, both political and personal; and a Supreme Court controlled by Republican appointees who appear willing to take virtually anything that the administration says at face value.

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The Docket

What else to read in national legal affairs

Whistle-Blower Says Trump Officials Are Defying Court Orders on Voting by Mail (NYT): The anonymous official says that the “risky and haphazard” implementation of Trump’s mail-in ballot executive order could lead to a “catastrophic failure” that effectively disenfranchises millions of Americans.
White House Teleprompter Operator Settles Insider Trading Probe (WSJ): This probably should have been a criminal guilty plea, not a slap on the wrist.
Dozens of federal judges describe intensifying threats in new report (WP): One judge “built a safe room and drilled family members on what to do in case of an intruder after the floor plan of their home was posted on the internet.”
How Trump’s Policy Agenda Runs Through One Federal Court, in Texas (NYT): The Trump DOJ has engaged in flagrant judge-shopping.
Deportees Recount Harrowing Journeys to Africa: Shackles, a ‘Freezer’ and Blows (NYT): “Many of the deportees are now trying to figure out what to do — settle in an unfamiliar African nation or return to countries where they fear persecution?”

The Strange Legal Logic of the Meta Settlement

Ankush Khardori — Fri, 28 Aug 2026 15:45:02 GMT

The states are betting on a domino theory of settlements with social media companies. Will it work?

In this edition:

The Strange Legal Logic of the Meta Settlement

The states and Meta want to set an industry standard using an unusual settlement structure

This week, Meta entered into a settlement with state attorneys general valued at around $17 billion to resolve claims that the company endangered children through its social media platforms, Facebook and Instagram. Meta agreed to new limits for kids on the platforms, with a strange twist.

Under the terms of the deal, Meta has agreed to pay only $12 billion, which is much closer to an accurate representation of the topline figure than the larger figure touted by the states and echoed by major media outlets. Meta will pay the rest of the settlement if TikTok, YouTube, and Snap settle with the states and agree to a set of more stringent conditions that would also apply to Meta. For instance, Meta is instituting a two-hour daily time limit for children, but that would drop to one hour if other companies agreed.

Many folks in the media have said that this provision is designed to encourage the other companies to settle, but it’s not exactly clear how that is supposed to work.

Meta’s pre-commitment ensures that those companies would not be at a competitive disadvantage if they agree to the more onerous conditions, but that only gets you so far. For this to work, ideally the states’ legal claims against the other companies would be stronger than the claims against Meta — that way, the states have leverage to push them for more concessions and then bring Meta in line with the new standards — but it’s far from clear that that is true.

The idea that a series of government settlements can effectively create an industry standard is not crazy. That is what happened when the Obama administration went after large banks for manipulating the financial benchmark rate LIBOR. A bunch of banks agreed in settlements with the Justice Department and the Commodity Futures Trading Commission to make similar changes to how they participated in the rate-setting process. (I was on the defense side for one of those banks.) But the changes were not contingent on other banks agreeing, and the incentives to settle were the usual ones — fear of large financial losses if the government went after them.

We’ll see what happens, but this aspect of the Meta deal is curious. The states clearly want to use this settlement to kick off some sort of industry standard, particularly because Congress has been unable to do so and because earlier efforts by government bodies to rein the companies in through the courts have spectacularly flopped. Maybe it’ll work.

For now, there is a $12 billion settlement and a tech company that is desperate to bring its competitors in line as well.

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LaMonica McIver Is One Step Closer to Trial

The ruling was expected, but the congresswoman is not backing down

This week, the U.S. Court of Appeals for the Third Circuit denied a bid by Rep. LaMonica McIver to dismiss the criminal case against her on the theory that she is immune from criminal prosecution over events that occurred while she was engaged in congressional oversight at Delaney Hall in Newark. In a 2-1 ruling, the court held that the allegations against McIver — that she assaulted federal immigration agents — fall outside of the zone of immunity for members of Congress.

In a call with the media yesterday, McIver said that she was disappointed by the result but remained steadfast in her resolve to oppose the administration’s effort to prosecute her. Her lawyer, Paul Fishman, said that they are still considering their appellate options, including seeking a rehearing before the same panel of judges, petitioning for en banc review by the whole court, or going to the Supreme Court.

The ruling was not surprising. McIver faced an uphill battle on this argument given the state of the law in this area, and the odds of success through further review do not seem better.

If McIver forgoes additional pretrial review, the case will go back to the district court, and a trial could occur sometime next year.

I expect the Justice Department to lose the trial if it happens. The whole case is an elaborate effort to scapegoat McIver after federal agents at Delaney Hall created chaos on the scene through their own ineptitude. I would frankly be shocked if a jury in New Jersey convicted her of anything.

Still, the case is a disgrace — not only because McIver is being forced to spend time and money on it, but because of the broader message that it sends.

Three people have died at Delaney Hall, but there is no indication that the Trump administration is investigating those deaths — or even cares. There is also no indication that the administration is doing anything to investigate the deaths of the other people who have died at the hands of federal immigration agents since Trump returned to office.

The Justice Department is spending far more time, energy, and taxpayer money prosecuting McIver than it is investigating actual deaths at the hands of federal law enforcement.

The Trump DOJ Has a New Litigation Tactic

There was already political blackmail. Now there’s extortion?

The Trump administration this week agreed to hold off on adding Trump’s name to the Kennedy Center after a court hearing in a case challenging the plans.

The hearing did not go well for the government, which was not surprising if you happened to read the brief that the Justice Department filed earlier in the week.

In it, the Trump administration basically threatened to demolish the Kennedy Center if it doesn’t get what it wants. According to the DOJ, “the Center will deteriorate further into an unsafe, decrepit structure that will be required to be taken down, with a determination to follow on what to build on the site, such as a large outdoor amphitheater.” Give them what they want, or the result will be “the continued decline and eventual demise of the Kennedy Center, probably leading to the construction of a new, but very different kind, of venue.”

The Trump DOJ is very comfortable using political blackmail with the courts — recall the tariff litigation last year and, more recently, the ballroom case — but this appears to be a new gambit even for them. This time around, they are holding the Kennedy Center hostage and threatening to shoot it.

This is another instance of incredibly bad lawyering. Not surprisingly, the only person who signed the brief for the DOJ was a Republican lawyer and political appointee who appears to have virtually no experience in court. It shows.

Exhibit A: The Bar Complaint Against Jeanine Pirro

A document of significant interest

This week, the Legal Accountability Center filed a bar complaint against Jeanine Pirro, the U.S. Attorney in Washington, D.C., and two of her deputies.

There are many things to criticize about Pirro’s tenure, but the complaint cleverly zeroes in on just one: the failed effort to indict six Democratic members of Congress over a video that encouraged members of the military to ignore illegal orders.

Under ethical rules, prosecutors are not supposed to pursue a case that lacks probable cause. In this case, the evidence on that score is about as good as it gets, both because the case was meritless from the start and, perhaps more importantly, because literally zero grand jurors agreed to return the proposed indictment — something that I have never heard happen before.

The usual caveats apply — bar investigations are long and uncertain, and in this case, the Justice Department is likely to try to stonewall any investigation — but the theory is a good one.

Objection: A Lazy Critique of Legal Journalists

Another perspective

It’s the end of August, and columnists like to enjoy the summer too. This means that, right around this time of year, they publish pieces that they have been sitting on and waiting to dump or that they have tossed off quickly enough to enjoy their vacations.

That is the best way to make sense of a column today by a Wall Street Journal columnist who issued a broad-brush attack against legal journalists reporting on the Trump administration.

“The media’s contribution to lawfare began in the earliest days of the first Trump term and has become only more brazen,” the columnist writes. “The swings and misses are there for all to see, every day. Yet the formula is now so routine that nobody pushes back.”

I am all for criticizing legal analysts when it is appropriate, so I read the piece with interest. There are broadsides against “the press,” the “state of legal reporting,” and “the country’s ace legal reporters.” There are sweeping complaints about coverage of the legal cases involving the Trump administration — that legal journalists routinely “omit any critical analysis of standing, jurisdiction, merits or precedent”; that it’s part of a “cynical game — jerryrigged reporting to give life to lawfare and to set false expectations, the better to smear legal grown-ups”; and that “we know this misreporting is intentional.”

These are strong and provocative claims, but the writer does not cite a single example. She complains about coverage of the ballroom case, but there is no mention of a particular story, reporter, or even outlet. The “swings and misses are there for all to see, every day,” and apparently it’s so obvious that you don’t even have to offer evidence to prove it.

“Where are the professional media critics when you need them?” the writer asks at the end.

Good question.

The Docket

What else to read in national legal affairs

Judge again blocks Trump mail ballot executive order in ruling that’s likely to be swiftly appealed (AP): This should end up back at the Supreme Court relatively soon.
Postal Officials Say Trump’s Mail-Ballot Push Will Create Widespread Errors (NOTUS): There is no way that this administration could competently pull this off.
Corporate America Cut Big Checks to Trump. Now CEOs Fear Subpoenas Are Coming. (WSJ): They are, in fact, coming.
Arbitrator orders Washington Post to reinstate fired columnist (The Hill): Good news for Karen Attiah. Bad news for Adam O’Neal, who made the decision to fire Attiah during his very brief tenure as head of the Post’s Opinion section.
Exclusive: RFK Jr. said a Samoa trip had nothing to do with vaccines. New documents refute that (AP): It appears that he lied to Congress.

Off the Record

Some non-legal items that caught my eye

Michael Cohen Walked Right into Trump’s Trap

Ankush Khardori — Mon, 24 Aug 2026 12:36:15 GMT

Photo illustration: Michael Cohen, Donald Trump (via Gage Skidmore), and the verdict sheet in People v. Trump

In this edition:

Michael Cohen Walked Right into Trump’s Trap

Cohen was the key witness in the Manhattan criminal case against Trump. Now he’s sucking up to the president again and undermining the conviction.

Michael Cohen’s reunion with Donald Trump in an interview last week has been treated as an object of political amusement, and with good reason. The former lawyer/fixer for the president was obsequious and desperate for his old boss’s approval, but Trump barely played along. It was also the latest in a decade’s worth of striking reversals for Cohen — a diehard Trump loyalist who later turned on the president, railed against him for years, and then served as the key witness in the Manhattan District Attorney’s Office prosecution against Trump.

The interview, however, was also a major development in the criminal case itself, and it significantly undermines the conviction both legally and politically. Cohen’s about-face creates a new opportunity for Trump, new legal risks for Cohen, and a fresh headache for the DA’s office.

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Cohen had been building up to his reconciliation with Trump for months. In January, he wrote an essay in which he claimed that he “felt pressured and coerced” by Manhattan prosecutors and lawyers from the New York Attorney General’s Office “to only provide information and testimony that would satisfy the government’s desire to build the cases against and secure a judgment and convictions against President Trump.”

According to Cohen, prosecutors “were interested only in testimony from me that would enable them to convict President Trump.” “When my testimony was insufficient for a point the prosecution sought to make,” he continued, “prosecutors frequently asked inappropriate leading questions to elicit answers that supported their narrative.” That last bit lined up with accounts I heard from within the office in 2023.

It’s one thing for a prosecutor to pose leading questions, but it’s another entirely for a witness to claim that he was “pressured and coerced” to support the government’s theory of the case. That is about as close as you can get to claiming that you lied on the stand without saying explicitly that you are recanting your testimony — a development that, in extreme cases, can force prosecutors to move to vacate the underlying conviction and dismiss the case altogether.

Trump, of course, understands this, which is why he appears to have laid a trap for Cohen in the middle of their interview.

“I respect the fact that you recanted everything you said,” Trump told Cohen at one point, “and that’s a big thing that you did.” Midway through Trump’s statement, Cohen said “yeah.” He accepted Trump’s characterization and moved on.

To understand why this matters, it’s helpful to recall that Cohen was the key witness — and the only direct evidence — that prosecutors offered to establish one of the essential elements of the case. Trump was charged with falsifying his company’s internal business records in connection with hush-money payments to the adult film star Stormy Daniels in the run-up to the 2016 election. Among other things, prosecutors had to prove to the jury that Trump falsified those records with the intent to conceal “another crime,” like election or tax crimes.

At the trial, Cohen testified that Trump was fully aware of the plan to pay off Daniels and knew that the convoluted structure of the payoff was designed to conceal the commission of “another crime” of some sort. He claimed that he had conversations with Trump on these points.

There were reasons to seriously question this account even at the time. Cohen was already a serial, unrepentant liar who had often lied in legal proceedings to advance his own interests. He lied to Congress, to the Justice Department, to his bank, and to the IRS. Cohen claimed that he lied to the federal judge who took his guilty plea on tax fraud charges — a point that he reiterated when he testified in the state AG’s civil fraud case against Trump. Cohen also appeared to lie on the stand during the criminal trial itself about a conversation that he claimed to have with Trump.

On top of all this, there was another readily available theory of the case: that Cohen committed the crimes, that Trump relied on Cohen as his lawyer to deal with the legal implications of the transaction and internal documentation, and that Cohen was implicating Trump to get back at him for not pardoning him during Trump’s first term.

Cohen’s remarkable about-face has several potential legal and political implications. For starters, although Trump’s case is already on appeal, will his lawyers move to vacate the conviction in light of Cohen’s recent comments?

That could be difficult given the very deferential standard of review on appeal, which requires the court to view the evidence in the light most favorable to the government. The government could argue that the jury could have convicted Trump based purely on circumstantial evidence — his involvement in the mechanics of the payments and his knowledge about how they were being recorded in his company’s books — even though, as a practical matter, it’s hard to believe that they would have.

In fact, it’s doubtful that the DA’s office would have charged the case at all without Cohen as their key witness. No sane prosecutor would want to use someone with as much baggage as Cohen as the key witness at a trial unless they thought it was absolutely necessary to secure a conviction.

This puts the DA’s office in a difficult position. Even if they can successfully defend the conviction on appeal, what are they going to do about Cohen? He has strongly implied that he perjured himself on the stand. Will they prosecute him over it? (The office did not respond to a request for comment, nor did Cohen.)

That seems unlikely, but whatever may happen, there is now another cloud hanging over the conviction in a case that was very shaky and very questionable from the start.

I’ve said before that I would not have voted to convict Trump if I had been on the jury. Cohen’s credibility problems and his testimony on the stand were, even at the time, enough for me to question the strength of the evidence and the wisdom of bringing the case in the first place. Many people were hungry to see Trump face some form of criminal justice after he left office in 2021, but the Manhattan DA’s prosecution was — for many reasons — not the right vehicle for it.

Of course, things worked out just fine for Trump in the end. He was never sentenced, was reelected, and is now wealthier than ever. In the grand scheme of things, he is not a sympathetic party, and this is not some tragic injustice.

As for Cohen, it’s tempting to pick and choose which statements to believe in a situation like this. Many people will be motivated to maintain that he was telling the truth on the stand and that he is lying to the public now — particularly the many political and media figures who embraced Cohen after his turn against Trump. Indeed, the one and only time I have seen Cohen in person was in 2024, when he attended the Democratic National Convention and was warmly welcomed by prominent Democrats.

I take no position on which of Cohen’s varying accounts is the truth at this point. When you’re dealing with an inveterate and shameless liar, it’s not worth the time and energy to figure out when they are being honest.

The smartest thing to do, if you can, is simply to ignore everything that they say.

The Docket

What else to read in national legal affairs

Supreme Court temporarily allows work on White House ballroom to continue (CBS): On Friday, Chief Justice John Roberts issued a stay so that the full Court can consider Trump’s application. We should hopefully know more this week.
DOJ to take fight over Trump-appointed U.S. attorney to Supreme Court (MS NOW): Last week, two federal appeals courts ruled that unconfirmed U.S. attorneys were illegally serving in their positions. This is happening because the administration cannot find competent lawyers who can be confirmed by the Senate to serve in these positions.
The Trump Intervention That Got the DOJ Off Live Nation’s Back (WSJ): Trump personally forced a settlement in an antitrust case that was about to go to trial.
White House’s University Antisemitism Probes Had ‘Predetermined’ Outcomes, Whistleblowers Say (NOTUS): Former DOJ lawyers allege that the Trump administration rushed the investigations in order to force settlements.
Trump put thousands of soldiers on Washington’s streets. They seldom stop crime (Reuters): This has been a gigantic waste of taxpayer money.
Trump Balks at Naming Advisers on Orders Targeting Law Firms (Bloomberg): This is an absurd position. The contents of the communications could be privileged, but the names are not.

Off the Record

Some non-legal items that caught my eye

What if America Went Completely Dark? (NYT)
Sorry, but My Dessert of the Summer Is From McDonald’s (Washingtonian)
Why Is It Absolute Hell to Buy a Movie Ticket Now? (Wired)

The Administrative State Is on Life Support, but It's Not Dead

Ankush Khardori — Wed, 19 Aug 2026 15:27:19 GMT

In June, the Republican appointees on the Supreme Court gave Donald Trump one of the biggest wins of his second term when they overturned a 91-year-old decision that allowed Congress to limit presidents’ ability to fire the leaders of independent agencies created by Congress.

In an opinion written by Chief Justice John Roberts, the six conservative justices ruled in Trump v. Slaughter that presidents can remove independent agency heads at will. Roberts cobbled together a separate majority in Trump v. Cook — including the three Democratic appointees — to carve out an exception to this new rule for members of the Federal Reserve’s Board of Governors.

These decisions were widely expected by legal observers, but the implications are extraordinary. Since Trump reentered office, he has fired Democratic members of many independent commissions — despite partisan balancing requirements imposed by Congress — and he has effectively neutered the work of entire bodies by depriving them of quorums. Last month, more than 50 professors wrote to congressional leaders to underscore the gravity of the situation and urge them to enact statutory reforms in response to the Court’s decisions.

This week, I convened a roundtable with three of the signatories to that letter — Nicholas Bednar, a law professor at the University of Minnesota who has focused on the practical implications of the rulings on government functions; Jane Manners, a law professor at Fordham University who has done extensive historical research on removal powers; and Mitchel Sollenberger, a political science professor at the University of Michigan-Dearborn who has studied the origins and history of the unitary executive theory, which undergirds the Court’s decision in Slaughter.

We talked about the impact of the decisions, the soundness of the conservative justices’ reasoning, and potential reforms — including some early, positive signs that some members of Congress may be interested in passing legislation to address the situation.

This conversation has been edited for length and clarity.

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Professor Bednar, can you describe the state of the law after Slaughter — we can get to Cook in a minute — and the practical implications for the bodies that we used to describe as independent commissions?

Nicholas Bednar: Step back to three months ago: What was the status quo pre-Slaughter? It used to be the case that Congress could pretty much freely restrict the removal of principal officers — the people directly below the president, for the most part. These individuals are nominated by the president and confirmed by the Senate.

There’s a decision from the 1930s called Humphrey’s Executor that basically solidifies that law and says that, for purposes of these multi-member commissions, Congress can create removal protections when these bodies are exercising quasi-judicial and quasi-legislative authority. But broadly construed, prior to about a decade ago, the Supreme Court didn’t intervene that often in agency design.

So fast forward to Slaughter: Slaughter overrules that case from the 1930s, Humphrey’s Executor, and the default rule now is that Congress cannot insulate principal officers from removal.

Why does this matter for the functioning of these commissions? These are a lot of the familiar bodies, such as the Federal Reserve or the Securities and Exchange Commission or the Federal Communications Commission. These bodies are composed of multiple members, usually somewhere between three and seven. And Congress did several different things when it was designing these commissions to ensure a degree of independence from the president.

The thing that Slaughter is concerned about is removal protections. These individuals were not supposed to be removed except for cause. That is what Slaughter is striking down.

The other two provisions worth keeping in mind, though — and the indirect implications Slaughter has for them — are partisan balancing and quorum requirements.

“The president can choose to disable these agencies when the president just doesn’t like what the agency does in the first place”

Partisan balancing: A lot of these commissions require the president to appoint a certain number of members from different parties, or they cap the number of members the president can appoint. If the president can just come in and remove all the Democratic members — which is what happened at a lot of these commissions — then that partisan balancing requirement doesn’t function as intended.

The second important part is that these are multi-member commissions. They are designed to arrive at decisions through a collective decision-making process. And that requires a quorum requirement. A lot of these commissions have statutory quorum requirements that require a simple majority of the members to be present.

Another effect of Slaughter is that the president can effectively break these quorums by removing a certain number of members so that the agency can no longer take action. Which means it’s not simply that Slaughter allows the president to replace principal officers with people the president might prefer — it’s also that the president can choose to disable these agencies when the president just doesn’t like what the agency does in the first place.

Professor Manners, when I read Justice Roberts’ opinion in Slaughter, he makes it seem quite simple: When the Constitution came into existence, this was the default rule, it’s always been the rule, and maybe we screwed up for about 150 years, but now we’re back to the default rule.

You’ve done extensive historical research on this topic. What did you find in the course of your work?

Jane Manners: It’s really hard if you are both a committed originalist and a committed unitary executive theorist — if you believe that all of the power of the executive is vested in the president, and that he has plenary control over the executive branch — because it just so happens that that is the opposite of what the framers thought.

Justice Roberts, in his Slaughter opinion, has all of these elisions and sleights of hand to make it seem that it’s really straightforward — that, of course, everyone understood the president had to have the power to fire everybody who worked for him, or you were violating the power that Article II gave him.

What everyone in fact understood at the framing is that the tenure of an officer was fundamentally a legislative decision. The legislature got to build the office, it got to figure out the laws it wanted to pass, and it got to figure out the kind of power it wanted to give to the officer who was going to execute that law. Then it was up to the president to oversee these officers in the executive branch — but it did not in any way mean that the president had a constitutional power to fire these officers at will.

“It just so happens that that is the opposite of what the framers thought”

There are a few points in Justice Roberts’ opinion where he’s really up against a wall. He talks about [James] Iredell, who was one of the first Supreme Court justices, and says that Iredell understood the president had to have this kind of, essentially, unitary power over the officers who worked for him. That is, in fact, not at all what Iredell was saying. He’s making this statement at a constitutional ratifying convention.

What he is saying is: Hey, guys, don’t worry — we didn’t have a unitary executive under the Articles of Confederation, but the fact that we’re going to have one person as president of the United States should not give your anti-monarchical hearts reason to fear, because the president will be held to account.

He goes on to say how the president is going to be held to account: He will be criminally liable. He will be punishable by the laws of his country, and in capital cases may be deprived of his life if he commits any crime. In other words, this half-quote that Justice Roberts includes in his opinion is in fact saying the opposite of what he intends it to say.

There’s also a place where he says early presidents all understood that they had the power to fire anyone under their command, regardless of what the statute said. And he has this quote: He says George Washington understood it was his “indispensable duty” to remove officers — “indispensable duty” is in quotes — and then he says, “who failed to live up to their expectations.”

Those are Roberts’ words, not Washington’s words. And I thought: That does not sound like anything George Washington would have said.

So I looked up the quote. He lops off the second half of the sentence, because what Washington is in fact saying, in a letter, is that it is the indispensable duty of presidents to remove an officer who is found incompetent, remiss in his duty, or pursuing wrong courses. Essentially, an officer who is found inefficient, neglecting his duty, [or engaged in] malfeasance in office.

Those are precisely the terms under which Congress authorized the president to fire [members of the Federal Trade Commission]. President Trump could have removed Rebecca Slaughter for any of those discrete causes if he had gone through the process. But he didn’t. He said: I am not asserting a cause, because it’s my Article II authority.

There are all these ways in which Justice Roberts is eliding or denying or misrepresenting the history.

What do you infer from that? What I infer is that this is a historical analysis that was really never on the level.

Manners: I think he wants to say he is not making a policy decision here. His whole career as chief justice has been built on the idea that he calls balls and strikes. He is against living constitutionalism. It’s all about fidelity to the original meaning.

“He’s doing it even though the history does not support him, so he’s pretending that the history does support him.”

So he’s in a hard place here. He has a deep and long-held commitment to the unitary executive theory, from when he was an attorney in the Ronald Reagan administration, and he’s got the opportunity to realize that vision, and he’s going ahead and doing it.

He’s doing it even though the history does not support him, so he’s pretending that the history does support him. In the process, he’s really upending, as Nick was saying, well over 100 years of precedent, and upending the administrative state that Congress has built.

Mitchel Sollenberger: I like how she mentioned Roberts calling balls and strikes. He said it with a straight face: He likened the judge’s role to that of an umpire.

What you really have here is Roberts putting his thumb on the scale for one particular theory and view of the presidency. I’m not saying that it isn’t a view that has some rational basis to it, and you can find selective quotes. But what Roberts has done is give lawyers a bad name.

You always hear that lawyers make bad historians — which I absolutely find funny, because a lot of the best legal historians are in law schools right now.

I think we need to pound that in: What Roberts has really done is put the unitary executive glasses on — or try to put the unitary glasses on everyone — and say, this is how the world works. And it simply isn’t.

You’ve spent a lot of time studying the origins and development of the theory. I don’t think most people know that Roberts was instrumental in the development of this theory, and I think it’s the craziest thing that he’s now the chief justice implementing this thing that they essentially made up about 40 years ago.

Sollenberger: It’s not only Roberts but [Samuel] Alito — he was a young lawyer, just like Roberts, in the Reagan administration’s Department of Justice. The unitary executive theory’s origins really began in the early 1980s in the Reagan administration, particularly the Department of Justice.

The rise of the imperial presidency and Richard Nixon’s abuses in the 1970s largely discredited a strong, aggressive use of presidential power. That’s why you saw Congress push back during the 1970s with various reforms — [on] impoundments, war powers, oversight, emergency powers, you name it. All of those were post-Watergate reforms that Congress passed.

The Reagan team comes into office in the early 1980s in this context, and they had witnessed what they saw — or perceived — as two embattled presidential administrations in Gerald Ford and Jimmy Carter. What they believed is that Congress had overstepped its bounds, and that there needed to be a pushback, a self-correction.

From there, they needed to actually develop this unitary executive theory. They needed to give it a name; they needed to provide an underlying rationale. None of that was really there.

So you have Department of Justice lawyers starting to push this — particularly Edwin Meese. Most famously, Meese commissioned a Department of Justice study in 1986 — a separation-of-powers memo.

“If you don’t give unitary executive theorists anything else, you should give them persistence”

You even had Dick Cheney, who was a member of Congress at the time — he wrote the minority views for the Iran-Contra report. And those minority views are paint-by-numbers what you would see in any unitary executive scholarship or court case, you name it.

They thought they had enough in terms of intellectual oomph to push back on what they saw as clear invasions of the president’s power when it comes to overseeing the administrative state. Morrison v. Olson, they thought, was going to be their crown jewel success. This is the 1988 case challenging the independent counsel law. The Supreme Court was made up of a conservative majority — they said, hey, we have the numbers. And they lost.

But if you don’t give unitary executive theorists anything else, you should give them persistence. Out of the ashes of Morrison, they built their numbers. They built it through the Federalist Society and similar organizations.

They not only got young law students — these young law students became lawyers in future Departments of Justice, they became law professors, and then they became federal judges.

Out of this, you get the switch from a conservative Supreme Court in the 1980s that still believed in a more traditional view of separation of powers — one filled with the William Rehnquists of the world, who would author Morrison — to one that’s more unitary-executive-friendly by the late 2000s.

That’s when you get Free Enterprise Fund in 2010, and Seila Law in 2020, and Collins [in 2021]. Those cases set up Slaughter.

It’s a legal theory that traces itself back about 40 years or so — now about 45 years. I can’t believe it’s 2026, and here we are.

Professor Bednar, let’s turn to Cook. Roberts makes two key claims in the opinion, and I’ll ask you about the first one and Professor Manners about the second one.

The first is that there’s this policy rationale: that because the Fed is so important, it somehow stands apart from these other commissions. What do you make of the distinction on the merits? And do you think that this is an exception that may be available to other agencies, or is this just for the Fed?

Bednar: It’s hard to answer. Cook is a poorly written opinion. They really do not want to answer why the Fed is different. Part of that is: If we open up the historical exception, what do you get?

Does the exception make sense? If we think about this as a purely policy matter, you can understand why the Fed is so economically significant that you would not want political influence to affect monetary policy.

That said, why can’t you make the same argument about a lot of these independent commissions? You have the Securities and Exchange Commission and the Federal Trade Commission — both of them regulate huge swaths of the economy.

You also have commissions like the Nuclear Regulatory Commission or the Defense Nuclear Facilities Safety Board. Are we saying that with nuclear power, political influence is okay — that we’re fine with that?

You have a bunch of adjudicatory commissions — the National Labor Relations Board, the Merit Systems Protection Board — all of these agencies that are effectively operating as quasi-courts. We have a strong history of judicial and adjudicatory independence in this country. Are we saying that’s no longer a value we have?

So does the Federal Reserve exception make sense? Yes — but just as much as any other exemption would. I don’t disagree with the exemption, insofar as I think Slaughter was wrongly decided in the first place, and therefore I think Congress should have the authority under the Necessary and Proper Clause to design agencies in a way that ensures effective governance, as opposed to political influence that undermines these agencies.

Do you think that Cook is going to be the only exception? Or is this something that you think the conservatives will be amenable to in the future with other commissions?

Bednar: I don’t know. Slaughter came down slightly differently than I thought. I think we all agreed Humphrey’s was dead.

Is there a potential for other exceptions? Slaughter kind of hand-waves: Well, maybe Article I courts, and maybe legislative agencies. But I don’t have a great sense of entirely what we’re going to put in those buckets right now.

The other thing with Cook is there’s a footnote in Cook that says something like: Do not fear, dear reader — if Congress were today to shove the entire administrative state into the Fed, surely we wouldn’t allow that to happen. So it does seem like the Fed stands alone, but they really haven’t given clear guidance about what else might be out there.

Professor Manners, on the historical claim: Again, this is presented in a very simplified way in the decision, as if — you know, there was the first national bank and all these things that nobody knows anything about, including myself — oh, this has always existed, there’s always been this bank, we have this long tradition of independent central banking.

Manners: Roberts is saying, not incorrectly, that members of the founding generation understood that the money supply should not be a partisan matter. True.

To Nick’s point, they understood a lot of things should not be purely partisan. I mean, they had issues with parties — deep issues with parties as an entity, let alone the idea that partisan politics should control how officers executed law.

The trouble that Roberts gets into, although he tries hard to avoid it, is that he says the Fed is like the Bank of the United States. The Bank of the United States was a private corporation. So at that very fundamental level, it is not like the Federal Reserve Board of Governors, which is a regulatory body that regulates through law.

He has this language in the opinion where he talks about the Bank of the United States being a regulator. But that use of the word “regulation” — both in its historical sense and in the kind of hand-waving that Roberts is engaging in — is not legal regulation.

The idea is that the Bank of the United States, kind of by accident, ends up regulating the money supply, because it has all of these relationships with other banks that allow it to expand or contract the money supply, and in that sense “regulate.” But it wasn’t passing laws. It didn’t have the force of law behind its regulation.

So the idea that the Federal Reserve Board of Governors is a kind of modern-day analog of the Bank of the United States — my friend and co-author Lev Menand called it comparing apples and giraffes. It’s just completely different.

But the Board of Governors — the entity whose members are now protected from at-will removal, thanks to Trump v. Cook — is just a regulatory body, pretty much indistinguishable from any other regulatory body, aside from the fact that the policies it deals in are policies that seem very precious to the conservative majority on the court.

I’m curious what your sense is of Congress’s reaction to the impact of the rulings. Have you heard anything in response to the letter?

Bednar: Yes — one, I do know that members of Congress have seen the letter, and that it ended up on certain very high-up leaders’ desks. Two, there is legislation being floated that addresses a lot of what’s in the letter.

Now, I’m being somewhat cagey because I don’t know how much I’m allowed to reveal. The obvious remark here is that there’s a Republican majority in the Senate and a Republican majority in the House, and if Democrats take the House and the Senate and they pass it, it probably still gets vetoed.

But it would at least be a signal of Congress’s commitment: We’re not throwing the baby out with the bathwater. We are still serious about maintaining the independence of these agencies, to the extent the court will allow us to do so.

I’m curious what your preferred ideas are here.

Bednar: One big issue I have is that a lot of these agencies engage in adjudication. Individuals who appear before these agencies to vindicate either their constitutional or statutory rights have to appear before the agency before they can get to federal court.

If you’re a president who, say, doesn’t like the civil service very much, a way to ensure that no one ever has a hearing as to whether they were lawfully removed from their position is to just break the quorum at the Merit Systems Protection Board and prevent those individuals from having hearings. So one big reform would be allowing, when there is no quorum at these agencies, for those people to bypass the agency and go straight to federal court. That’s probably going to be necessary if we want to preserve any amount of adjudication within the executive branch.

Professor Manners?

Manners: In terms of long-term legal-theoretical possibilities, the one possibility that jumps out to me is that maybe — although this court seems to have no appetite for it — maybe the Cook exception becomes so big that it swallows the rule.

You can certainly make a very plausible case that the independence that’s crucial to the Fed’s functioning is also crucial to all of these other agencies’ functioning, and you’ve certainly got the history and tradition — the court’s favorite approach — to back up that independence.

It would take a different makeup on the court. But if we’re admiring the fortitude and perseverance of the originalist-slash-unitary-executive-theory camp, then maybe we should also have a long-term strategy for resurrecting or saving or whatever we have to do with the administrative state.

“Maybe the Cook exception becomes so big that it swallows the rule”

Professor Sollenberger, how about you?

Sollenberger: If you’re thinking about the philosophical underpinnings of independent regulatory agencies — where they come from — it’s the Progressive Era, and this idea of apolitical experts. They have longer terms, they’re staggered, etc.

I don’t necessarily think that’s going to get a groundswell of congressional willingness to reform. With Congress, there needs to be a public policy problem. The quorum issue, I think that’s a big one, with the members Trump has removed. But I think we’re going to have to see where this goes.

One thing we haven’t talked about [is Trump’s] executive order bringing the independent regulatory commissions under OMB review. So now the Office of Information and Regulatory Affairs reviews all regulatory actions coming from these agencies — even before Slaughter was decided, these agencies were sending their regulatory actions to OMB for review.

And that executive order goes even further. It really does bring these agencies under the thumb of the White House.

It says the chairs of these commissions need to consult with the relevant White House policy offices; any kind of strategic planning needs to get signed off on by the White House; the White House is going to create performance standards and management objectives — there’s a long laundry list. These agencies need to adopt the legal views of the Department of Justice and the White House. They can’t have independent views of the law.

What Slaughter did is basically codify the executive order. What I would like to see is: What are the implications not only of removal and how that’s going to affect agency behavior, but of this particular executive order? How far are the Trump administration and future administrations willing to go in taking a top-down command approach with these agencies? Is Congress going to push back? Congress has many tools to respond.

…

In my mind, the next five, ten years is going to be less about some big change that Congress is going to make, and it’s going to be incremental responses to presidential power.

If you look at the post-Watergate period, most of the time my students are like, oh yeah, Congress passed the War Powers Resolution, the Impoundment Control Act, the National Emergencies Act, the Ethics in Government Act — they passed that within a year or two. No — it was basically a decade-long period of Congress passing roughly 20, 25 pieces of major legislation.

The change doesn’t happen overnight, and I think that’s something that’s important for us to remember.

That sounds like some cause for optimism — that this isn’t the end of the administrative state, but that we may be at the start of the development of a new equilibrium.

Manners: I think Professor Sollenberger’s point is very well taken. In some ways, I was presenting a Platonic ideal of how these independent agencies were completely insulated from partisan control, but of course there are a million ways in which presidents influence the independent agencies during their time in office.

The idea that this is going to be the final blow that brings independent agencies under the president’s thumb is probably far-fetched. That said, when the president can fire at will, and then there’s no quorum and the agencies can’t function, that is a much more immediate threat, as Professor Bednar has so eloquently explained.

Bednar: I don’t think this is the end of the administrative state, insofar as the modern government does so much.

Congress is not going back to a period where it is granting individualized petitions on behalf of individuals who need patents.

“I can’t get any students to apply to the Department of Justice. And frankly, I don’t know that I want them to apply to the Department of Justice right now.”

I do have one concern, which is that part of the ability of the federal government to govern depends on people being willing to work for it. One thing that has happened — you see this a lot if you teach law students — is that people don’t want to go work for the federal government.

For a long time, the federal government represented this place where, if you want to do meaningful work, and you have a certain amount of expertise, and you’re willing to sacrifice a bit of your salary to do so — that drew a lot of people in.

A good example of this is attorneys: The Department of Justice used to be one of the most prestigious jobs you could get right out of law school. I can’t get any students to apply to the Department of Justice. And frankly, I don’t know that I want them to apply to the Department of Justice right now. There’s going to be a whole generation of people who are very hesitant to go into federal service, be they attorneys or economists or whoever.

A lot of the expertise that you need to run the administrative state — I don’t know how much longer it’s going to be there, and it’s going to probably take a lot longer to reestablish the reputation of the federal government.

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Trump Is Trying to Blackmail the Supreme Court. Again.

Ankush Khardori — Mon, 17 Aug 2026 12:11:00 GMT

In this edition:

Trump Is Trying to Blackmail the Supreme Court. Again.
The Docket: DOJ independence and law enforcement abuses

The Justice Department went to the Supreme Court on Friday afternoon in an effort to clear the way for construction of Donald Trump’s White House ballroom. It was the first major DOJ filing since Todd Blanche’s confirmation as Attorney General, and it was proof that nothing is going to change anytime soon at the department.

In April, a district court judge issued a preliminary injunction to temporarily halt construction on the site, but the order allowed the administration to continue construction below ground, and above ground as necessary for security purposes. The U.S. Court of Appeals for the D.C. Circuit affirmed that decision ten days ago. Both courts concluded that the plaintiff, the National Trust for Historic Preservation, was likely to prevail on its central claim that the project is illegal because Congress has not authorized it.

The Justice Department is now asking the Supreme Court to overturn that ruling and to greenlight construction of the ballroom immediately. The application continues several running themes of the Trump-Blanche DOJ — its willingness to waste taxpayer resources to advance Trump’s personal interests in the courts, to gratuitously attack the lower courts and then run to the Supreme Court for help, and to offer self-serving factual claims that are questionable at best and pretextual at worst in an effort to impose political pressure on the justices.

The lawyering has been bad from the start. The first substantive brief filed by the DOJ was riddled with typos, formatting problems, and grammatical errors. So was the “corrected” version.

Shortly after the district court issued its preliminary injunction, the government filed a brief that contained two introductory pages that read as if they were pulled straight from Trump’s Truth Social feed. Several days later, Blanche strongly suggested to a group of law school students that Trump had written those pages himself.

The administration’s Supreme Court application is particularly shameless in its framing of the issue. When the litigation began, the administration told the court that the purpose of the project was to build “expanded event space to address growing visitor demand and provide a venue suitable for significant events.”

On Friday, the Justice Department turned the rationale behind the project on its head, describing it as an “integrated military complex, including a totally secure ballroom space,” that “is vitally required by national security.”

In other words, in order to build Trump’s ballroom, a whole bunch of expensive security measures were required. Those security measures have now become the new rationale for the project, and we are all supposed to believe that the ballroom — which Trump has bragged about extensively — just happens to be attached to all of that other stuff.

The DOJ’s application is also supported by declarations from a group of national security officials who are in their positions because of their loyalty to Trump — precisely so that they will do things like this.

The group includes the newly confirmed Director of National Intelligence, Jay Clayton, a reverse DEI hire who holds the position despite having no relevant experience or expertise. He came to the job after a stint as Manhattan U.S. Attorney (another job that he lacked the qualifications to hold and abused to serve Trump’s interests). After less than three weeks in his new job, Clayton is now in a position to inform the Supreme Court that Trump’s ballroom project is “critical” for security purposes and “will improve the level of protection and ability to manage and mitigate threats to the President and senior government officials.”

This is not the first time that the Justice Department has enlisted senior administration officials in a clumsy effort to create the appearance of factual support for its position.

When Trump’s “emergency” tariffs were in the courts, three Cabinet officials, including Secretary of State Marco Rubio, submitted declarations claiming that the global order would essentially collapse if the tariffs were thrown out. When the case went before the Supreme Court, Treasury Secretary Scott Bessent submitted a declaration that — bizarrely — attached a letter from a friend of his who said that the lower courts’ rulings were “repulsive, repugnant, and utterly indefensible.”

This was a transparent effort to blackmail the Court, and it failed when a majority of the justices threw out the tariffs anyway. The predictions of global doom were promptly forgotten, but they were not that different from the claims that the DOJ is now making about how Trump and other White House officials’ lives are in danger as long as Trump’s ballroom remains uncompleted.

There is also a gaping hole in the administration’s position in the ballroom case, both factually and legally: If the ballroom is so desperately needed for security purposes, why didn’t the administration seek congressional authorization for the project? Trump could have done so at any point — and still can — but the idea is too politically toxic even for most congressional Republicans.

The administration now claims that the courts below improperly inserted themselves into the project and that construction is so far along that none of it can be stopped, but even if that’s true, it’s only because it rushed forward while the litigation was pending — probably so that it could argue at some point, which has now apparently arrived, that the project cannot be halted as a practical matter.

The question, of course, is whether the Supreme Court’s Republican appointees are going to indulge this pretext, and unfortunately there is no clear answer.

In June, all six of them voted to allow to allow the Trump administration to immediately terminate Temporary Protected Status for Haitians and Syrians. Along the way, they dismissed the voluminous record of racist statements that Trump and his allies had directed specifically at Haitians on the theory that none of the statements “was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.”

In that case, at least, the conservative justices were willing to embrace the administration’s pretextual claims about what it was doing.

On the other hand, three of them — John Roberts, Neil Gorsuch, and Amy Coney Barrett — joined the three Democratic appointees in striking down Trump’s fake-emergency tariffs. They were all evidently unmoved by the overheated claims of the administration’s Cabinet officials, and a similar coalition could ultimately rule against Trump in the ballroom case as well.

That would be the correct outcome on the merits, and it would also give the Court’s Republican appointees a political opportunity: a chance to demonstrate some independence from the president on an issue on which the public largely opposes him — and in a context where the only actual interest at stake is Trump’s ego.

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The Docket

What else to read in national legal affairs

Blanche won’t pledge DOJ independence from Trump (Axios): This is not new, but Blanche said it more clearly than he has before.
A Driver’s Fatal Spiral After a Police Officer’s Typo (NYT): Two police officers in San Francisco mistakenly pulled someone over and in the process effectively ruined his life. The man died in an apparent suicide.
Trump’s Other Hold on the Americas: The Visa (NYT): “The U.S. government has revoked visas to target foreign leaders, ambassadors and other officials, judges and journalists, among others — while quietly reinstating visas for some like-minded allies.”

The Trump Administration Is Enabling Financial Crime

Ankush Khardori — Fri, 14 Aug 2026 20:17:49 GMT

Billionaire’s Row in New York City (Brecht Bug)

In this edition:

The Trump Administration Is Enabling Financial Crime

The Trump administration’s decision to nullify a landmark disclosure law is just the latest development

One of the Trump administration’s signature public policy initiatives has been rolling back federal efforts to identify and prosecute sophisticated financial fraud and white-collar crimes. We have seen it in Trump’s pardons of people who perpetrated major financial frauds, Attorney General Todd Blanche’s early decision to disband the DOJ’s criminal crypto enforcement task force, and the decision to close more than 1,000 white-collar criminal investigations, to name just a few items.

This week, the Trump administration added to the list with its decision to stop collecting data about the ownership of corporate shell companies under a law that was passed over Trump’s veto in 2021 — and to destroy data that it had already collected. It’s a significant setback for efforts to root out some of the most complex and consequential forms of international financial crime — from money laundering operations that run through New York City condos to insurance frauds involving oil tankers.

The use of corporate shell companies makes it harder for investigators to determine who is actually running a suspicious corporate entity. There are ways around this that investigators use all the time, but they are time-consuming, and the idea when the 2021 law passed was that it would expedite these sorts of investigations and perhaps even curtail illicit conduct by itself.

A law like this was bound to impose significant costs on people who did nothing wrong, and over time, that dissipated political support for the mandate, but even so, the law was on the books, and Trump has effectively nullified it for the time being. (A future administration could just as easily reverse course.) Members of both parties in Congress should be up in arms, but of course, Trump told them literally on the first day of his administration that he would ignore laws that they passed if he didn’t like them — in that case, the ban on TikTok, which had passed Congress with large, bipartisan majorities and been unanimously affirmed by the Supreme Court just weeks earlier.

Meanwhile, the Trump administration frequently claims that it is engaged in a war on fraud — mostly through the Justice Department’s newly created National Fraud Enforcement Division — but the claim is wildly misleading for several reasons.

To start, the administration has focused law enforcement efforts on government program fraud, but the effort has been highly politicized and disproportionately aimed at states led by Democrats.

The Justice Department is also now focusing on smaller financial frauds — and different types of them. Many of these cases seem to be emerging from immigration enforcement investigations and are the sorts of cases that are typically left for local prosecutors to handle.

But this was also the eminently predictable result of the DOJ’s ill-conceived decision to impose a quota on prosecutors that now requires them to keep at least 25 open cases. It’s much easier to charge a few small, local frauds than it is to charge a single large and complex financial fraud scheme. Not surprisingly, the quota was announced internally by a senior Trump DOJ official who appears to have no experience with white-collar criminal work, unless you count the time that he pled guilty to drunk driving while working as a line prosecutor in North Carolina.

Meanwhile, the DOJ’s National Fraud Enforcement Division already appears to be under considerable stress. According to the Wall Street Journal today, the division “has struggled to recruit prosecutors and has been slowed by an internal turf war that has caused some promising investigations to languish.” They have also been forced to take credit for work done by prior administrations.

All of this is happening at a time when financial fraud has been rising all over the world, even according to the DOJ’s own statistics. You can safely assume that those numbers will continue to get worse in the years to come.

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What to Make of the Truth Social Lawsuit

A novel theory for novel facts

During an appearance this week, I briefly touched on a lawsuit brought in an effort to stop Trump’s social media company, Truth Social, from charging exorbitant fees for early access to the president’s social media feed.

This is a nakedly corrupt endeavor. The president is personally profiting from information that the public entrusted to him so that he would serve the nation, not line his pockets.

Whether it’s legal is a different matter. The best argument (such as it is) in defense of the practice is that it’s not that different from stock exchanges that charge for “colocation services,” which allow high-frequency trading firms to profit from faster access to trade data than the rest of the market.

The lawsuit filed this week asks the court to look at the matter through a different lens. The plaintiffs argue that Trump is placing an unconstitutional burden on the public’s access to government information. The framing is clever and intuitive, but this is not an area where there is much clearly applicable law, so it’s difficult to predict how it will end.

That’s a complicated way of saying that it’s a novel theory, but then again, so is the president’s effort to enrich himself.

Exhibit A

A document of significant interest

This week, a woman named Carolina Molina shared video of a confrontation that she had with an ICE agent in Northern Virginia. The video shows her being harassed and threatened at gunpoint by a group of agents who got angry after she (by her own account) said some mean things to them, which is not illegal, much less punishable by death.

In any other administration, this agent would already have been fired. He not only abused his authority but put this woman’s life in danger.

Shamefully, this sort of behavior is no longer surprising. There has been plenty of it documented by credible independent observers. And the Justice Department, for its part, has apparently done nothing to investigate the conduct of the agents who killed Renee Good and Alex Pretti in Minnesota or the circumstances surrounding the deaths of detainees in immigration facilities.

Just this week, a third immigrant died at Delaney Hall, the detention facility in Newark, New Jersey, that sits in the district of Rep. LaMonica McIver, whom I spoke to recently about precisely this topic. After news of the latest detainee death, McIver released a statement in which she said that “we can’t trust that the administration is going to be honest about what is happening behind closed doors” and that “they will just keep lying.”

Deterrence works on public officials, too. If you don’t seriously investigate these incidents and prosecute misconduct, there will be more of it.

The Docket

What else to read in national legal affairs

The U.S. Surveilled Left-Leaning Groups During Immigration Crackdown in Minnesota (NOTUS): The Trump administration appears to have conducted a massive domestic political surveillance operation.
Groups sue the Trump administration over its targeting of the International Criminal Court (AP): A lawsuit challenges the Trump administration’s effort to prevent international prosecutors from pursuing international criminals.
Trump Administration Lets Key Gun Law Lapse Following Court Ruling (NYT): The Justice Department usually defends the constitutionality of laws passed by Congress. The Trump administration has broken from that practice in high-profile, politically charged cases.
Trump promised a sex-trafficking crackdown. His Justice Department hasn’t delivered (Reuters): “Investigations have stalled and prosecutions declined in the past six months because of staffing shortages, funding cuts, immigration enforcement and growing distrust of the government among victims.”
Meet the attorneys Harmeet Dhillon installed to turn the Civil Rights Division against its mission (Public Citizen): “A division created to protect America’s most vulnerable has been gutted and refilled with lawyers drawn largely from the conservative legal movement, several carrying documented histories of controversy, others with limited experience.”
Trump’s New White House Lawyer Embodies MAGA Mold in Second Term (Bloomberg): Will Scharf didn’t get this job because he’s an amazing lawyer. He got it because he’s loyal to Trump and willing to defend pretty much anything that he wants.
Democrats plan Trump investigations over impeachment if they win House, sources say (Reuters): This is what I have gleaned as well.

Off the Record

Some non-legal items that caught my eye

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Samuel Alito Is Not Doing Himself Any Favors

Ankush Khardori — Tue, 11 Aug 2026 13:46:52 GMT

On Friday, the Wall Street Journal published a rare interview with Supreme Court Justice Samuel Alito about a book that he says he hasn’t read.

The interview was conducted by James Taranto, the Journal’s editorial features editor, and focused on a biography of the justice that was published in April by Peter Canellos, a veteran journalist and editor who has written and edited award-winning work on the Court and the justices. Based on hundreds of interviews, the book is a deeply reported account of Alito’s life that also offers a critical examination of the justice’s interpretive methodology — which Alito has described as “practical originalism” — and questions whether Alito’s life experiences and political preferences have influenced his decisions.

Taranto attacked the book for having “an ideological agenda” aimed at discrediting the justice and asked Alito to respond to passages and criticisms in the book even though, by his own account, Alito hasn’t read it. The results are odd, at times illuminating, and not particularly flattering for the justice, who, despite a sympathetic interlocutor, resorts to cliches to defend his work from charges of political bias in general and pro-Trump bias in particular. (“I vote in every case the way I think the case should be decided,” Alito offers at one point.)

This is not the first time that Alito has appeared in the Journal’s Opinion section under unusual circumstances. In 2023, Alito published an essay in the section to preemptively rebut a story from ProPublica that reported on a luxury fishing trip he had taken years earlier, paid for by a billionaire whose hedge fund has repeatedly had interests in cases before the Court. Media critics, legal commentators, and experts in legal ethics expressed various forms of disapproval.

I had already been planning to speak with Canellos about his new book prior to Alito’s interview in the Journal, and this seemed as good a time as any to do it. (Disclosures: Taranto has published my work in the Journal’s Opinion section on several occasions. Canellos and I worked together at Politico and remain friends.)

Canellos and I discussed his reaction to Alito’s interview with the Journal, what he made of Alito’s responses to some of the points raised in the book, and the influence of Alito’s life on his jurisprudence in areas like abortion, religious freedom, and immigration. Canellos also pushed back sharply on the suggestion that his work was driven by an ideological agenda.

“There is no agenda other than to inform people of how we got to today’s conservative-dominated Supreme Court,” Canellos told me, and “to plumb the social and cultural and political roots of what is arguably the most transformative legal movement in American history.”

This interview has been edited for length and clarity.

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On Friday, The Wall Street Journal published an interview with Alito about your book. He said that he hasn’t read it. What was your reaction after you read the interview with him about the book that you wrote that he hasn’t read?

As a former editorial page editor, I think the author of the piece, James Taranto, can say whatever he wants, but he describes my book as being hostile to Alito and originalism. It’s not hostile to Alito and originalism.

This is not a book that was aimed at flattering Justice Alito. It’s not a book that’s aimed at flattering Justice Alito’s critics. It’s a work of journalism. It’s a work of history, and it has journalistic integrity.

What concerns me is that people constantly, on the left and right, are asking me, “What lane are you in? Is this a vicious attack or is this a work of sycophantic praise?”

The answer is that it’s a work of reporting that raises questions and provides answers and can be of real use to people, so it bothers me when partisans try to characterize it as being blatantly one side or blatantly another side. It’s a way of discrediting the book, of suggesting it was created to advance an agenda. There is no agenda other than to inform people of how we got to today’s conservative-dominated Supreme Court, to plumb the social and cultural and political roots of what is arguably the most transformative legal movement in American history.

Your book advances a particular view of Alito’s life — a subject that you reported out extensively — and how it has influenced his career and his jurisprudence. How would you sum up that thesis?

It’s a multifold thesis. It says that the roots of the conservative legal movement grew out of a period in the late 60s and 70s, and it grew out of a generation of people who came of age in the second half of the 20th century and who shared a lot of feelings in common.

Mostly they were people who were raised with an intense feeling of patriotism and American exceptionalism, which largely came out of the Cold War era — lessons in public schools about the greatness of the founding fathers and the Declaration of Independence and the Constitution. That was Alito’s generation.

That was also the generation of people who started the Federalist Society. Many of them were like Alito, the sons and grandsons – and a few daughters and granddaughters — of European immigrants, who came to this country for a better life, suffered hardships, but came out of it with a message of hope: “We sacrificed and now you are going to bear the fruits of that sacrifice.”

In Alito’s case, he was also a very religious Catholic growing up. So were many other leaders of the conservative legal movement.

The feeling is that out of those sets of experiences came a view of America that kind of naturally led to originalism. It’s a view of American greatness, not perhaps as experienced by the founding fathers, but more as experienced by people hearing stories of the founding fathers and what the true spirit of America is and was — hearing those stories in the 1950s and 1960s, and then being greatly disaffected by the social changes of the late 1960s and 1970s and beyond.

What sorts of changes in particular?

In Alito’s case, he was an exemplary student in high school, at Steinert High School in Mercerville, New Jersey, but in his senior year, there was a very upsetting event: the deadly riots in Trenton that followed the Martin Luther King assassination. There were real signs that seniors in high school and others were troubled by this.

Then he went to Princeton and he was in the last all-male class to enter Princeton, and with women came social changes — conversations about abortion and premarital sex and other things that were challenging to a young religious conservative.

He was also, as he has talked about extensively, in ROTC at a time of intense protest against the Vietnam War. He was an emblem in some ways of the war effort because he was literally wearing a uniform on campus, at a time when protesters would do anything possible to try to block Princeton’s ability to cooperate with a war effort or to engage in war-related research. The ROTC office was firebombed and extensively damaged during his time there.

So he came away with a sense of his values being under siege, and it dovetailed with a larger critique of the U.S. Supreme Court, mostly under Chief Justice [Earl] Warren and the first years of the [Burger] Court, which saw the Supreme Court as the engine of many of these social changes and the validator of many of these social changes.

Can you talk about how you pieced together that portrait? I assume you tried to talk to Alito for the book, correct?

I did, and he politely declined, which is certainly his privilege and his right. But he was polite. There was no sense of tension there.

My two researchers and I really fanned out to try to find people who knew Alito during all those crucial moments of his career from high school and growing up, including people who knew his parents, to college, to law school, to his time in the U.S. Attorney’s Office in New Jersey, to his time in the Reagan administration, to his years as a circuit court judge.

Collectively, we talked to hundreds of people. Not just people who were friends of Alito’s, but other people who were classmates and perhaps people who didn’t agree with what Alito’s positions were, even in real time.

The picture that emerges of Alito is one that has come from people who knew him, or shared similar experiences, at various stages of his life.

Let’s talk about some of the decisions where you can readily identify a connection between his biography and his jurisprudence. Obviously, there’s Dobbs, which overturned Roe v. Wade, and you write about integration of the universities and the changes in sexual mores around his time, but let’s set Dobbs to the side.

Are there other decisions where you can see his biography informing how he came out?

Well, one is his critique of the Warren Court, which undergirds the whole conservative legal movement, and it hit him personally in several ways.

His mother was a public school teacher — a very, very dedicated teacher — and principal. But she used Bible verses in her class. And she herself said she was very upset when the Warren Court ruled that citing the Bible in public schools is a violation of the Establishment Clause.

She was irked. She was upset. The Warren Court was sort of sticking its fingers into her life and her independence as a teacher.

In addition, Alito has spoken of sitting in his bedroom at home in his modest suburban home and hearing the click of a slide rule as his father strived mightily to equalize the population in legislative districts in New Jersey. This was also a mandate from the Warren Court, and he later said that he disagreed with that mandate. It put his father in a particularly awkward position because his father was the nonpartisan head of the New Jersey Office of Legislative Services, and any risk or any show of partisanship or anything that put him at odds with members of the legislature put his job in jeopardy.

In addition, Alito has been a leader in activating and expanding protections for religious people under the Free Exercise Clause. This has been an interest of Alito’s going back in his life, both in terms of his own religion, but also his academic interest in law and religion, which was reflected in his note for the Yale Law Journal when he was in law school, as well as some of his studies at Princeton.

In addition, his mentor at Princeton, Walter Murphy, was a man who specialized in studying the internal dynamics of the Supreme Court, and how certain justices — for example William Brennan — were able to get five votes for positions that really transformed the law. And Murphy’s idea was that a great deal of power on the Supreme Court accrues to the justice most adept at bringing others onto his side.

Alito has proven to have been a good pupil of Murphy’s. Alito’s note at Yale Law School, in the Yale Law Journal, was an exploration of how the Supreme Court behind the scenes brought about a decision in an important Establishment Clause case.

Clearly those lessons sunk in. I think that his influence on the Supreme Court has been far greater than just as a conservative voting for very conservative rulings; it’s been his ability to bring others onto his side.

A lot of people — including judges and justices themselves — seem resistant to the idea that the life experience or the biography of a judge or a justice might actually influence their jurisprudence, even though it seems natural that it would.

Can you talk about Alito’s Italian heritage? Alito’s father was an Italian immigrant. His mother was the daughter of Italian immigrants. Even to this day, he feels a very strong connection to that heritage.

He identifies very strongly with his Italian American heritage. He’s proud of it. He considered it an important part of his upbringing.

“He identifies very strongly with his Italian American heritage. He’s proud of it. He considered it an important part of his upbringing.”

He and his parents were very conscious of discrimination against Italian Americans, and there was absolutely discrimination in the years that his parents were growing up, especially. He’s been concerned about stereotypical portrayals of Italian Americans in movies and television, condemning The Sopranos, for example, for presenting a very one-sided view of the Italian American experience.

He has sought to preserve a statue of Christopher Columbus in the neighborhood where his parents grew up, believing it to be an important sense of heritage and belonging for Italian people. This has very much been a guiding principle for him.

I think you can, out of those roots, see how he became interested in, for example, church and state issues. He associated the Catholic Church with that Italian American upbringing. He was a regular churchgoer.

He has, through the Free Exercise Clause, tried to establish religious values as a counterpoint to anti-discrimination protections, particularly regarding the LGBTQ community. Clearly, he believes that if conservative Catholics feel that it’s against their religion to acknowledge the equality of same-sex marriage, for example, they should be able to cite a religious exemption to [avoid] having to follow rules aimed at promoting the acceptance of what it means to be a couple.

That’s one set of cases. But then there is another set of cases that became very important during this past term oriented around birthright citizenship and immigration issues. I’m thinking in particular about Mullin v. Doe, which ended temporary protected status for Haitians and Syrians, and the case on birthright citizenship.

Alito wrote the decision in Mullin, and he was in the dissent in the birthright citizenship case. What do you make of his positions in those cases in light of his commitment to his own roots and ancestry?

I think that it’s striking that he does not see any apparent analogy between the experiences of various immigrant groups, legal and undocumented, and the experience of European immigrants who came to the United States in the early decades of the 20th century. He clearly does not see important parallels there.

“I think that it’s striking that he does not see any apparent analogy between the experiences of various immigrant groups, legal and undocumented, and the experience of European immigrants who came to the United States in the early decades of the 20th century”

I think that in the case involving the Haitians, he was very much guided by the unitary executive theory, which he had helped to create in the Reagan administration, and his overall view of the president as holding executive decision-making power in this country. He based that decision on the president’s right to make a determination, in this case under a statute, as he saw fit on whether Haiti was a dangerous place for people to return to or not, and saw no grounds for further judicial inquiry into that decision.

In the Journal piece, Alito also responds indirectly to your critique of his interpretive methodology, which he has described as “practical originalism.”

What is your sense of his philosophy, and what are the issues that you identified in the book that raise some questions about the integrity of the theory?

There have been originalist attacks on Alito’s positions in cases involving the individual right to carry guns, for example, and even in his core belief in the free exercise of religion.

Scholars had written originalist critiques suggesting that an individual right to carry was not part of the original understanding of the Constitution and that the Free Exercise Clause was not intended to have a broad application. It was intended only to prevent the government from outlawing religions.

Those critics would say in these very important areas for Alito personally and for conservatives, he’s not in touch with the original understanding of the Constitution. I think when he adds the term “practical” to his interpretation of originalism, I think that we can take it at face value, his assessment that he doesn’t want to be so rigid and theoretical that a judge feels no discretion to apply common-sense principles to a new fact pattern.

The example that was cited in the Journal article was his disagreement with Scalia over violent video games. He felt that while the First Amendment did indeed protect violent forms of speech, the Court should not jump to the conclusion that new technologies such as video games do not have some special risks inherent in them that make them imperfectly analogous to the methods of speech in the time of the framers of the Constitution.

The point that I make in the book is that in these areas where he deviates from what you might consider Antonin Scalia’s approach to originalism, it leads the Court to a more conservative outcome. So the practical aspect of his practical originalism has the effect of moving the Court to the right.

“The practical aspect of his practical originalism has the effect of moving the Court to the right”

I don’t think he actually refuted that in the article.

In the interview, Alito says, “There’s not an algorithm that yields a definitive answer to every question that is asked, and determining the applicable level of generality requires an analysis of what the provision is getting at. What is the fundamental rule here? I think even Justice Scalia recognized that.”

What did you make of his rejoinder on this point?

Honestly, it made me think of the first principles of the conservative legal movement, which were that the Constitution should mean the same thing tomorrow as it meant yesterday, and that it should be a fixed document, and the belief that the Warren Court had used open-ended provisions and imperfect analogies to bring about liberal changes in society.

When Justice Alito talks about trying to ascertain what a provision is really getting to and thinking about the underlying meaning of these provisions, it doesn’t strike me as being so different from what William Brennan might have said in terms of trying to ascertain a legal principle and then apply it to a new set of facts.

“When Justice Alito talks about trying to ascertain what a provision is really getting to and thinking about the underlying meaning of these provisions, it doesn’t strike me as being so different from what William Brennan might have said in terms of trying to ascertain a legal principle and then apply it to a new set of facts.”

Now, conservatives will immediately balk at any comparison between today’s conservative justices on the Supreme Court and what they perceived to be activist liberals of 50 years ago.

But I think for much of the Federalist Society, that’s the rub, right? Are the Court’s decisions today stretching the bounds of originalism in order to bring about conservative results? And isn’t that what this whole movement was arrayed against in its initial form?

I’m not coming down one way or the other and saying that the Court has violated its originalist principles or not. But I am saying it’s the question of the moment within the conservative movement. And that’s the frame in which we should be parsing Justice Alito’s words and those of other conservatives, too.

Here’s another interesting quote from the piece, specifically in the context of equal protection and gay marriage. Alito says, “You can take an important principle that’s in the Constitution, like equal treatment, and if you view it at a very high level of generality, you can say that the Constitution requires equal treatment in a context that never occurred to, or never could have occurred to, those who adopted the provision.”

What did you make of that?

That’s in a specific context in which Alito very strongly disagrees with the Court — the decision on same-sex marriage — for which he was pretty much the leading dissenter, the most impassioned dissenter.

In that case, he is expressing his fidelity to the kind of original principles of the conservative legal movement, which is to say: the Constitution means what it meant at the time that it was ratified, not what it means to subsequent generations.

Strictly speaking, Alito is right. If you take a principle and define it at a high enough level, you’ll capture lots of things.

But of course, originalists are accused of doing the inverse — defining contemporary fact patterns at a very high level of specificity, looking through the history, and then concluding that this highly specific contemporary fact pattern was not in the history so how can it possibly be covered by such and such provision of the Constitution when the framers didn’t even know about it? They didn’t know that there would be video games, etc.

I actually think he’s right about this — about generality and specificity and how it informs the outcomes of cases — but he does not seem to appreciate that the critique applies just as easily to him as it does to anyone else.

He is expressing his skepticism about equal treatment and equal protection laws being used to protect groups like lesbians and gays.

But when it comes to things like the free exercise of religion or the Second Amendment, Alito is not a justice who avoids broad generality. He is a person who interprets those provisions of the Constitution at a very high and general level to bring about sweeping change in society.

The Court’s current Second Amendment jurisprudence is entirely generalities. No one at the time of enactment had any idea what sorts of weapons would exist today, much less a vision of how the Second Amendment would apply to them.

You are certainly correct that that is a critique of the current Court’s Second Amendment jurisprudence, but that is for others to say [rather] than for me to say. I will say it certainly is an issue.

This is one issue, and then there are the issues surrounding his pride about his Italian heritage and his inability or unwillingness to reconcile that with the issues that are in front of the Court today.

It kind of seems like he’s unwilling to reflect on himself.

I think that’s true.

Look, I think that Sam Alito is an extraordinarily skilled lawyer, and he has shown himself to be a truly consequential Supreme Court justice. Let’s start with that. Alito deserves a certain amount of respect and recognition because of what he’s been able to achieve in this society.

“Alito deserves a certain amount of respect and recognition because of what he’s been able to achieve in this society.”

I think that he uses that lawyer’s intelligence to create distinctions that may seem very clear in his mind, and may give him the sense that he is objectively judging the situation, when, in fact, he’s behaving more like a lawyer defending a certain position than as a truly independent assessor of the facts.

When Joe Biden sought to eliminate student loan debt under a legal provision that said the president has the right to waive or modify the repayment schedule, liberals had a rather plausible case that in the simple meaning of the word “waive,” that could include permanently waiving and permanently preventing repayment. Alito didn’t see it that way and joined in an opinion by Chief Justice [John] Roberts that said that that was not a power that Congress intended to extend to the president.

Okay, that was a work of textual analysis that Alito obviously was comfortable with.

Then you look at the tariff case, which turns on the word “regulate” in a statute that gives the president the right under extraordinary circumstances to “regulate” international trade. Alito took the view that that clearly and plainly includes the right to impose tariffs. Roberts and the court’s majority obviously disagreed with Alito’s position.

You could look at it and say, since Biden had a plausible interpretation of the word “waive,” that the Court was being a little tight in its interpretation of the law when Biden was president. You could also look at the interpretation of the word “regulate” to include tariffs and say the Court was being a little generous, at least the dissenters were being generous, in suggesting that Trump had power under that statute to impose these billions and billions of dollars in tariffs.

Now, the good lawyer Sam Alito would come leaping in with a lot of distinctions and a lot of arguments about what was in the head of the legislature when those provisions were established. But the question is, is he looking at it truly through an objective lens? Or is he looking at it through the lens of a conservative who might agree with Trump’s decision to impose tariffs or feel that that power was really important for a president, while feeling offended at the idea that people who borrowed money for student loans would not have to repay it?

That’s the question that Sam Alito and others have to wrestle with.

Alito also made clear in the interview that he’s going to be on the Court for another term. At this point that’s not unexpected, given where we are on the calendar, but certainly earlier this year and last year, a lot of people were wondering whether that was really going to be the case. Now we have him on the record.

What do you make of that? Is it that he’s not done yet? Is it that he doesn’t want to be pushed out? He understands that he is running the risk that his seat might become vacant in the years to come and that a Democratic president could end up filling it.

It certainly is within his right to stay, and there has been no suggestion that he has not been up to the job in recent years.

In fact, he’s at a peak of influence right now, and I’m sure that was a consideration for him in wanting to stay.

There will be cases coming up, including in this next term, that will enable him to expand protections for the free exercise of religion even further than he has already succeeded in extending them.

I think that he also believes, probably correctly, that within the conservative movement, he is uniquely effective. The story of this Court in the last term or two has certainly been Roberts versus Alito in certain areas where Roberts wants to hew to a traditional interpretation of the law, and Alito wants to change that interpretation.

“The story of this Court in the last term or two has certainly been Roberts versus Alito in certain areas where Roberts wants to hew to a traditional interpretation of the law, and Alito wants to change that interpretation.”

They kind of battle for the soul of the three Trump appointees on the Court. In cases like birthright citizenship and tariffs, Alito lost, but was part of a spirited team of dissent. And in a case like Dobbs, Alito won.

I think he feels that a conservative appointee coming in fresh is not going to have anything like that kind of influence. So, while people on both the left and right may view a conservative jurist as being interchangeable in some ways, I don’t think that’s actually correct, and I think Alito knows that’s not correct.

Two Bad Arguments Carried Blanche Over the Finish Line

Ankush Khardori — Fri, 07 Aug 2026 21:49:20 GMT

In this edition:

Two Bad Arguments Carried Blanche Over the Finish Line
Charging Decision: The case against Anthony Fauci
Exhibit A: More bad publicity for a Big Law firm
The Docket: A roundup with notes on major legal stories
Off the Record: Some non-legal items that caught my eye

Republican Senator Bill Cassidy’s decision today to support acting Attorney General Todd Blanche’s bid for the permanent position appears to have clinched it for Blanche.

In the end, Senate Republicans caved, as they have on nearly all of President Trump’s Cabinet nominees. In this case, they have now effectively endorsed the abuses at the Justice Department to date and enabled more to come.

In his speech, Cassidy invoked two lines of argument that have been used by Republicans to support Blanche’s nomination. One of them relies on a misrepresentation of public data. The other relies on a misunderstanding — a willful misunderstanding, evidently — of the Senate’s role in providing advice and consent on presidential appointments.

1. The Drop in Crime Does Not Support Blanche’s Nomination

Cassidy argued that a vote against Blanche would put “at risk the progress made fighting violent crime, human and drug trafficking and fraud.” This echoed a claim made earlier in the week by Senate Judiciary Committee Chairman Chuck Grassley, who pointed, in particular, to a recent report released by the Council on Criminal Justice documenting broad declines in crime and credited Blanche and the Trump DOJ for this trend.

The report, however, does not support Republicans’ characterization of it.

After Grassley’s remarks, the CCJ published a social media thread addressing the report’s actual conclusions. The group explained that it is in the process of evaluating other factors for the decline that it documented — criminal justice strategies, technology, and broader “shifts in society & culture” — but the group most certainly does not credit the Trump DOJ for it.

None of this should have come as a surprise. The group’s report didn’t support Grassley’s characterization of it, the accompanying press release didn’t, and the group’s President & CEO, Adam Gelb, wrote an op-ed in USA Today in February that rejected this interpretation of the CCJ’s work after Trump credited his administration for the drop in crime at his State of the Union address.

The fact that Republicans were forced to invoke such a flimsy and misleading argument to support Blanche is an embarrassment in its own right.

2. The Senate Is Not a Helpless Bystander

Cassidy also argued that Blanche was better than any realistic alternative. The choice, he said, “is not between perfection and Mr. Blanche. It is between Mr. Blanche and another acting attorney general who may not run the department effectively under President Trump and who indeed may not be as good as Mr. Blanche.”

This argument makes no sense coming from a U.S. senator, even though plenty of political reporters and legal commentators fell for it. The reason is that the alternative was not, in fact, “another acting attorney general.”

When the president puts forward a nominee who is unfit or unqualified, the job of the Senate is to reject that nominee. The president is then supposed to work with the Senate to find a suitable nominee who can get their support. In the meantime, the president is embarrassed, the nominee is embarrassed, and they are incentivized to move quickly for that reason.

What we have now — courtesy of Cassidy and other Republican senators — is a nonsensical standard that effectively writes them out of their own constitutional role.

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Charging Decision

What to make of a criminal case

Yesterday, Republicans on the Senate Committee on Homeland Security and Governmental Affairs voted to hold Dr. Anthony Fauci in contempt of Congress after he repeatedly invoked his Fifth Amendment right against self-incrimination in response to questions during a hearing last week. The committee referred its finding to the Justice Department.

The case is probably not going very far. Here’s how I think about it:

Republicans have claimed that Fauci should have answered their questions because former President Joe Biden pardoned him on his way out of office, and therefore he has no criminal exposure concerning his conduct during the pandemic. The pardon, however, does not prevent state or local law enforcement authorities from pursuing Fauci, and indeed, three Republican state attorneys general are already investigating Fauci.
Under ordinary circumstances, the Justice Department would not act on a criminal referral like this. Unlike Steve Bannon, for instance, Fauci actually showed up and engaged with the committee.
These are not ordinary circumstances. The Trump Justice Department is more than willing to pursue criminal cases against the president’s perceived political adversaries, even when they are very silly. It would not be surprising at all if the department tries to prosecute Fauci over this.
It’s practically inconceivable that Fauci will ever be convicted. The case would have to be brought in Washington, D.C., since that is where the alleged contempt occurred, but it’s far from clear that prosecutors will even be able to convince grand jurors to charge the case. U.S. Attorney Jeanine Pirro’s team could not even get a single grand juror to sign off on the proposed case against six Democratic lawmakers who made a video advising members of the military to ignore illegal orders, and Pirro’s office embarrassed itself further last week after it was forced to withdraw criminal charges that sought to blame a private citizen for the president’s botched renovation of the Lincoln Memorial reflecting pool.
Even if a grand jury returns an indictment, prosecutors would have to persuade a jury in Washington to unanimously vote to convict Fauci. Under the circumstances, that is very hard to see happening.

Exhibit A

One document, closely examined

This week, a nonprofit advocacy group filed a complaint with the First Judicial Department’s Attorney Grievance Committee for the State of New York concerning the conduct of Brad Karp, the former chairman of Paul, Weiss, who was the first to enter into a deal with the Trump White House last year to avoid punitive sanctions.

The complaint came from the Legal Accountability Center’s Michael Teter, whose work in this general area I covered back in 2023. The filing focuses on Karp’s alleged efforts to mislead the public about his and the firm’s relationship with Jeffrey Epstein, as well as the deal with the White House — which, in addition to all of the other ethical problems, may have been a federal crime.

The practical implications of the complaint are one thing — Karp’s career was already nearing its conclusion, and he is already extremely wealthy — but the episode is embarrassing nonetheless for both Karp and the firm, particularly coming on the heels of a lengthy New York Times investigation published last weekend about the origins of the deal.

I contacted Karp about the complaint and the potential criminal implications of the deal he struck, and I spoke with him briefly by phone. He declined to comment on the record.

The Docket

A roundup of key stories on national legal affairs

25 states sue over Trump’s new tariffs, calling them ‘pretext’ to replace his old ones (AP): I wrote about the prospects of success for this sort of legal challenge here.
Trump vowed to ‘bring free speech back.’ Judges in 75 cases ruled that he has stifled it (Reuters): Another excellent investigation from the folks at Reuters.
States Warn Supreme Court That Trump’s Mail-In Voting Order Would Create Chaos (NOTUS): “President Donald Trump continues to push last-ditch efforts to oversee elections and message to voters that noncitizen voting is rampant, despite reports that it occurs rarely.”
Pirro Gave Up on Other Reflecting Pool Prosecutions, Too (Washingtonian): The U.S. Attorney’s Office in D.C. dropped three other cases against people who the government claimed had damaged the reflecting pool.
Jack Smith invited to testify before Senate Judiciary Committee next month (The Hill): Smith agreed to the request, subject to approval by the Justice Department.
Using a Gun to Defend Yourself? The Right to Kill Is Growing. (NYT): “People do not merely own more guns in America. They now have more ways to justify using one to kill another person, simply by invoking an often inchoate sense of fear. This marks a new era of defensible homicides.”

Off the Record

Some non-legal items that caught my eye

Inside the Court Case that Could End Super PACs

Ankush Khardori — Wed, 05 Aug 2026 16:54:26 GMT

Harvard Law School professor Lawrence Lessig (adapted from image via Robert Scoble)

In this edition:

The Latest on Todd Blanche
Q&A: Lawrence Lessig on the court case that could end super PACs

The Senate Judiciary Committee voted along party lines yesterday to advance the nomination of Acting Attorney General Todd Blanche to a full Senate confirmation vote for the permanent post. The outcome was expected after Blanche brokered a substantively meaningless deal to placate Republican senator John Cornyn.

Republican Senator Susan Collins later announced that she will not vote to confirm Blanche. Republican senators Lisa Murkowski and Bill Cassidy could tank Blanche’s nomination if they join her, which, of course, remains to be seen.

Inside the Court Case that Could End Super PACs

Harvard Law professor Lawrence Lessig discusses the years-long legal campaign that could reach the Supreme Court as soon as next year

Last week, the U.S. Court of Appeals for the First Circuit heard a case that could dramatically reshape campaign finance law.

The case emerged from a yearslong campaign by legal advocacy groups and by Harvard Law School professor Lawrence Lessig, who recruited Supreme Court litigator Neal Katyal to argue it. Along with Maine, they are defending a state ballot initiative that limits contributions to super PACs.

Their argument centers on what they believe is a misreading of the Supreme Court’s 2010 decision in Citizens United v. FEC, the infamous case that overturned limits on independent expenditures by corporations and unions. Shortly after that decision, the U.S. Court of Appeals for the D.C. Circuit ruled in a separate case — SpeechNow.org v. FEC — that if you can’t limit expenditures by these groups under Citizens United, then you also can’t restrict contributions to them. Other circuit courts have adopted that reasoning.

But according to Lessig, Katyal, and their allies, the courts’ logic has a basic — and fatal — flaw. The outside groups may not be coordinating with candidates, but there is still a very real risk of corruption because donors to the groups can coordinate with candidates on their own.

Lessig and I spoke about the case, the history leading up to it — including failed efforts in Alaska and Massachusetts before the Maine ballot initiative — and his view that some of the originalists on the Supreme Court could end up siding with them if (or when) the case reaches the justices, which could happen as soon as next year.

“I think [the justices] could write this opinion and just make it seem like everybody’s kind of crazy that they thought this was a hard case,” Lessig told me, “which will be fun because I’ve lived through seven years of people telling me I’m insane — and that I don’t even understand how to read the law — because I’ve suggested that maybe there’s actually another side to this question.”

This interview has been edited for length and clarity.

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It seems like the oral argument went pretty well. How do you feel?

I’ve seen a lot of oral arguments. I’ve never seen a better presented oral argument than this one.

That’s in part because we had truth on our side. We’re right on the law.

It’s in part because the judges were extremely well prepared. I can’t tell you how many times I’ve gone into an oral argument and listened to the judges and just realized they just haven’t even read the briefs. This is a difficult area of law, and they really knew what they were talking about.

The First Circuit hasn’t addressed this issue before, so you’re not actually asking them to change the law because there is no controlling law on this subject. But can you talk a little bit about the nature of the case — what you’re trying to do and how other courts have resolved the question?

The important thing to remember is that Citizens United was decided in January of 2010. The question it addresses is whether, if expenditures are independent, they can be limited.

It’s really important to put that in a conditional sense, because sometimes people talk about it as if the Supreme Court said you are free to spend unlimited amounts of money, no matter what.

That’s not true. You’re free to spend unlimited amounts of money so long as you don’t “coordinate” with the campaign. If you are Elon Musk and you sit down with the candidate and you say, “Tell me when it would be good to run ads about this particular issue,” and then you go out and spend $10 million, well, you have spent about $10 million more than you’re allowed to spend because that spending is actually a contribution because you’ve coordinated.

I sometimes think that [Citizens United] is the most misunderstood case in the history of Supreme Court cases because everybody’s so angry about it and thinks it’s so unrealistic. But that’s because they don’t actually understand what it was saying.

What it was saying was if you follow the law, if you obey the rule that says you are independent, then there’s no reason we have to regulate you because there’s no risk of quid pro quo corruption — if you actually are independent.

The problem is most of us hear this and say, “Yeah, they’re really independent. That’s just not true.”

But that’s not a problem with the Supreme Court. That’s a problem with the fact we don’t have an enforcement mechanism that’s actually out there making sure that these people are independent.

Months after [Citizens United], SpeechNow [from the D.C. Circuit] extends the reasoning in a way that obviously reveals a logical error in its thinking.

[The court] basically says if you can’t limit expenditures because there’s no risk of quid pro quo corruption, it follows as a matter of law that you can’t restrict contributions because they too don’t create a risk of quid pro quo corruption.

As Neal [Katyal] said in the argument, there are three players here. One is the donor, one is the candidate, and one is the committee. Citizens United was saying: the committee and the candidate, they have to be independent. And if they are independent, there’s no risk of quid pro quo corruption.

But SpeechNow is not about the committee and the candidate. SpeechNow is about the candidate and the donor.

From the fact that the committee is independent from the candidate, you can’t say anything about whether the donor is independent from the candidate.

Imagine you want to give $100,000 to try to get somebody elected as governor in the state of Maine. You sit down with the campaign, and the campaign tells you they need the money to run in August. So you spend $100,000 in August. What Maine law says is that that spending in August is actually now a contribution, because you did it in consultation with the campaign, and therefore it’s treated as a contribution, not an independent expenditure.

But if instead you did exactly the same thing — you sat down with the committee and you said, “When do you need this stuff spent?” and they said, “In August,” and then you wrote a check to a super PAC and the super PAC then spent the money in August — you’ve effectively coordinated to know when you need to send the money in. That is not affected by the fact that you had that coordination. That is just a donation. The donation remains a donation, even though you’ve effectively coordinated.

That demonstrates as clearly as you can, I think, why one doesn’t follow from the other. But they made this logical mistake.

By 2013, five circuits had followed the D.C. Circuit. [That] was before the first super PACs were out there.

[In] 2014, I had a super PAC to end all super PACs. It was one of the biggest super PACs in the election cycle.

The point is nobody can understand how these things are functioning, so the logical error isn’t obvious. But very quickly, the logical error becomes obvious because people begin to see — like with [former U.S. Senator Bob] Menendez.

What’s Menendez [about]? Some rich guy comes to Menendez, just as I described with the governor’s guy, and says, “If you do some favors for me, I’ll send a bunch of money to your super PAC.”

The super PAC is completely independent. They don’t know anything about the relationship of Menendez to this donor. They just get a check, so the super PAC remains Citizens United compliant. But the donor and Menendez had engaged in a relationship that creates the risk of quid pro quo corruption.

That’s exactly the sort of thing the Supreme Court has said you have the right to do something about.

The critical thing is [that] in a flash, the law of the nation is settled. The Second Circuit in 2013 writes some ridiculous thing to the effect that there’s never been a question of law agreed to by so many courts — that it’s obvious, and that there’s no way you can question this thing. But they’re resolving it before anybody knows what they’re talking about.

That’s what created this problem.

Those other circuit courts are not the circuit that you’re in, but any time the circuit courts coalesce around a proposition of law, that carries a super-precedential kind of weight. You’re effectively trying to persuade them to sharply disagree with their colleagues in the other circuits.

One way to see how to make that argument is every one of those circuit courts repeated the same syllogism that SpeechNow did. They all said if there is no risk of corruption with the expenditure, there can be no risk of corruption with a contribution.

Our district court judge is the first district court judge to say, “Sorry, no, this is not right. There is, in fact, a risk of quid pro quo corruption with the contribution.”

The facts have changed. They made that decision under [the wrong] assumption.

This court would be the first court knowingly to make this mistake. The question is whether eight circuits getting it wrong means you have to get it wrong now that you realize it’s clearly wrong.

“The question is whether eight circuits getting it wrong means you have to get it wrong now that you realize it’s clearly wrong.”

The lower court judge’s conclusion was that the arrangement doesn’t have to be totally incorruptible, but the danger of corruption is substantially diminished to the point that the government’s anti-corruption interest is insufficient to displace First Amendment protections.

This is an area of law where judges assert things as if they’re true on the assumption that everybody follows the law.

Right. Just put real numbers there.

The law is allowed to limit my giving $10,000 to a candidate for governor. But I’m allowed to give $10 million to the candidate for governor [through a super PAC] because I’m further away.

Okay, but $10 million certainly is big enough that the fact that I’m further away doesn’t really compensate for the fact that it’s wildly more significant than [the direct contribution].

You’ve been doing this for a while — litigating in this area, working in this area — so it’s not your first rodeo.

This particular project has been going on for quite some time. Can you talk about its genesis and the amount of time, money, and forethought that needs to go into setting up a legal challenge like this?

I clerked for [former Supreme Court Justice Antonin] Scalia. That means that every question I look at, I have to look at through an originalist framework — not because I would embrace that approach if I were picking completely separately, but the point is, especially now when six justices say they are originalists, it seems like the right framework to embrace.

Way back in 2013 or 2014, I started recognizing that, from an originalist perspective, this is an easy question. There’s just no doubt that from an originalist perspective, Congress should have the power — or the state of Maine should have the power — to make these kinds of regulations.

…

From my perspective, it’s always been a fight about getting them to understand how the original meaning tilts strongly against this jurisprudence. And they’ve got to figure out what they’re going to do to accommodate it. Now, we’ve never pushed the argument that I think is the logical implication of this: that they ought to overturn [Buckley v. Valeo].

And I would say if women don’t have the fundamental right to choose whether to terminate a pregnancy or not, because that was not the original meaning of the Constitution, then that other case decided in the 1970s — Buckley v. Valeo — should mean that billionaires don’t have a constitutional right to buy elections. Both of them follow if you’re going to embrace originalism.

We’ve never pushed that far.

What I’ve said from the very beginning is that if you’re going to say that the standard is “corruption” — a standard you pulled out of thin air — at least it should be corruption that the framers would have recognized.

The framers, of course, didn’t like bribery, but that’s not what they were obsessed with. What they were obsessed with was the corruption of institutions of representative democracy.

[James] Madison said we’d have a house that would be “dependent” — dependent is the critical 18th-century word — dependent on “the people” alone. He said in Federalist No. 57 that by “the people,” he meant “not the rich more than the poor.”

What have we built? We have built a system where these representatives are dependent on the rich more than the poor. You don’t get anywhere, you don’t survive anywhere, unless you’ve made the rich happy first.

“We have built a system where these representatives are dependent on the rich more than the poor.”

We have corrupted the institutional design. That’s the argument I’ve been making forever.

Free Speech for People, which was born after Citizens United, had been developing an argument grounded in a paper that Al Alschuler, Larry Tribe, Richard Painter, and Norm Eisen wrote. [It] was basically this quid pro quo argument — that under Citizens United, you ought to be able to regulate contributions because contributions are not expenditures.

So Free Speech for People had been making that argument. They made that argument in the D.C. Circuit, trying to get the court to overturn SpeechNow. Of course, the court didn’t give them an opinion; it just ignored the argument.

Always a sign of confidence in your reasoning.

Yeah, that’s right. [Laughter]

And so after [that], we tried the Alaska case, where we got the lower court to acknowledge the originalist argument. The [Alaska] Supreme Court reversed it.

Then Free Speech for People and Equal Citizens decided to work together. Free Speech for People didn’t want to make the originalist argument because it’s not politically correct, but I thought we had to make the originalist argument. So we joined together to try to get a ballot initiative in Massachusetts, and the attorney general, who’s now the governor, said no — it violates Citizens United.

We had to appeal to the Massachusetts Supreme Judicial Court. I made the originalist argument, and Free Speech for People made the core argument we’ve been making — the quid pro quo argument.

…

The Supreme Judicial Court of Massachusetts said, “Well, we’re not going to decide your First Amendment question until you gather signatures.”

It was [effectively] a million-dollar filing fee. We would have to gather signatures to have the privilege of knowing whether we were allowed to bring the initiative to the people to be voted on.

In the end, I was actually very happy that happened, because then I was at dinner in Maine … and Rick Bennett was there — a [state] Republican senator, now an independent candidate for governor. I told him this story — the fight to end super PACs — and he said, “Why don’t we bring the initiative in Maine?”

Maine doesn’t have a preclearance requirement. Maine is actually a better state to bring the initiative because it’s purple.

The lawyers for the state of Maine seem content to leave the originalist argument entirely to you. Why is that?

I think that there’s a political cost here.

Originalism has been quite damaging to certain interest groups. Obviously, if you’re in politics, that’s a salient thing. That’s why Free Speech for People refused to join together with us on one petition to get a ballot initiative on the Massachusetts ballot — because they didn’t want it to be associated with originalism.

“Originalism has been quite damaging to certain interest groups. Obviously, if you’re in politics, that’s a salient thing.”

My view is we don’t pick the views of justices who have life tenure. We just have to argue to them.

[The state of Maine was] happy to allow us to intervene, so we made a motion and the judge allowed it.

As a litigation matter, if you have the argument available to you, you want to advance it or even just make sure you are addressing it.

One problem with originalism is that it often seems insincere. I think the Trump immunity decision blows up whatever claims the six Republican appointees on the Supreme Court have about being truly wedded to originalism or textualism. That is a decision that has no basis in the history surrounding the drafting of the Constitution, the framers’ expectations when they wrote it, or the text.

I expect a lot of people will think, “Yes, this is quite clever, but let’s be serious. This is still the same six Republican appointees.”

You’ve got to think about the justices individually, right?

I clerked for Scalia early in his career. And there were any number of times where there was a conflict between the conservative thing to do and the originalist thing to do, and each of those times, after some struggling with his clerks — we would try to push him to be consistent — he did the originalist thing.

I think that there are justices on this court who are Scalia wannabes. I mean that in the best possible sense. I think [Amy Coney] Barrett and [Neil] Gorsuch, in particular, want to demonstrate that their philosophy is a philosophy, not a politics.

There’s a reason to try to appeal to the principle here that they should be living up to. That’s number one.

Number two: The move in campaign finance is that these guys want to go even more libertarian.

What they would love to do is just blow up everything. They would like to say there should be no limits at all, even for direct contributions.

That has no basis at all in the original meaning of the Constitution.

…

We at least have built up a predicate for saying, if you’re going to be principled at all in your conservative position here, you cannot go more libertarian. There’s no legal basis for that at all.

I’m not saying [Samuel] Alito or [Clarence] Thomas are likely people to get here, but I do think that Barrett and Gorsuch are fair game in this fight.

I also think, from the perspective of [Chief Justice John Roberts], like we’re giving the chief a gift. We’re giving the chief a chance to say, “People have said Citizens United is the worst decision in the history of the Supreme Court. Cite Bernie Sanders a thousand times. We disagree, and we actually reaffirm the principle of Citizens United. But nothing in Citizens United says anything about whether you can limit the size of contributions, and of course you can limit the size of contributions. Therefore, Citizens United is right, SpeechNow is wrong, and super PACs can be abolished.”

If the court did that, the world would say “huzzah.” The world would love the court.

The point is they are totally saving face. They didn’t create super PACs. They didn’t make this mess.

“They didn’t create super PACs. They didn’t make this mess.”

So they get to say, “We didn’t make this mess. And there was never a [circuit] split, so we didn’t take it up. Now there’s a split. We take it up. We resolve it and super PACs are gone.”

Either side will take this to the Supreme Court, I presume, if it loses. How quickly could that happen?

The First Circuit, unfortunately, can be really slow, but if the First Circuit decides this by the end of this year, we could be in the Supreme Court by the end of next term. By the summer of 2027, the court could resolve this.

It’s really important to me that the court resolves this in ’27, because if it gets close to 2028, there’s going to be all sorts of reasons why they would not want to do anything radical because they’re in the middle of an election.

The intersection of the timelines poses an interesting little question, because there could be a Democratic candidate in the 2028 primary season who is earnestly campaigning for Supreme Court reform — a well-funded, credible candidate, or maybe a bunch of them.

Doing Citizens United 2.0 in the middle of all that would, from an institutional self-preservation perspective, be extremely stupid.

Exactly.

Let’s wrap it up here: My rule of thumb is that if you are really rich in this country, you can kind of do whatever you want in the area of campaign finance law. You just have to know the right vehicles and navigate the legal terrain.

Doctrinally, how do you think about it?

If you just look at where the winds have been, it seems like it’s all in the direction of “you can do whatever you want.”

And a critical part of this case is something the court has never really fully articulated: the appearance-of-corruption part. In the oral argument, we were really focused on [that].

…

We actually brought in a very sophisticated, gold-standard social science analysis to figure out, “Can you really say that there’s an appearance of corruption given the size of the contribution limits?” Chris Robertson did this randomized vignette study.

It’s really astonishing because it turns out that if you cap contributions at $5,000 or less, the public is pretty okay with the system. But once you [go above] $5,000, there’s a huge increase in the level of cynicism until you get to this world of no contribution limits at all.

Everybody thinks this system’s corrupt. That’s where we are right now.

The Brennan Center report that came out [in June] basically said that more than 90% of Americans — across six different dimensions of corruption — think that our system is corrupt.

…

How much more do you need before you’re willing to say there’s an appearance of corruption? Buckley itself directly says that there’s an appearance of corruption where contributions are unlimited. Well, that’s what we’ve got — a system where contributions are unlimited.

…

I think [the Court] could write an opinion that says, in effect, “I don’t know why this was so hard for you guys. Obviously you’re allowed to limit the size of contributions. That’s been the law since the beginning of time. So here, you get to limit the size of contributions.”

Yes, it’s for an independent political action committee, but that doesn’t mean there’s not a risk of corruption. Look at [former Ohio House Speaker Larry Householder], look at Menendez, look at a million other cases.

Look at the President of the United States saying in April of 2024, “If you raise a billion dollars for me, I will relax energy regulations on day one.” That’s just plainly a quid pro quo, and that is only through a super PAC.

I think they could write this opinion and just make it seem like everybody’s kind of crazy that they thought this was a hard case, which will be fun because I’ve lived through seven years of people telling me I’m insane — and that I don’t even understand how to read the law — because I’ve suggested that maybe there’s actually another side to this question.

The Blanche Confirmation Deal Is a Farce

Ankush Khardori — Mon, 03 Aug 2026 12:24:02 GMT

Todd Blanche riding a horse for some reason (official U.S. government photo via social media)

In this edition:

The Blanche Confirmation Deal Is a Farce
The Reflecting Pool Debacle
The Docket: Anthony Fauci, birth tourism, and more on Big Law’s capitulation to Trump

Late last night, Acting Attorney General Todd Blanche released a signed document purporting to end the so-called “anti-weaponization” fund that drew objections from two Republicans on the Senate Judiciary Committee.

A spokesperson for John Cornyn has said that this resolves his objection to Blanche’s nomination. Thom Tillis — who has spent more time publicly posturing than adding anything useful to this discussion — will likely fall in line.

As a practical matter, however, Blanche’s document is meaningless for several reasons.

The Justice Department can still make payouts to Jan. 6 defendants. The defendants can submit claims under the Federal Tort Claims Act, and hundreds of them already plan to do so. The department can then settle those claims outside public view and without judicial scrutiny.

There is only one way to prevent this from happening, and that is for Congress to pass a law preventing it from happening.

It’s one thing for non-lawyers to misunderstand this. It’s another thing entirely for Cornyn — a senator with decades of experience, a lawyer, a former judge, and the former Texas attorney general — to do it. At one point, Cornyn himself raised the idea of passing a law to block the payouts, but he later ruled it out for reasons that he never explained.

Blanche’s paperwork is also legally meaningless. The document purports to “rescind[]” an earlier order that Blanche issued concerning the operation of the fund, but the settlement agreement that kicked all of this off — the agreement that actually purported to create the fund — was executed by Trump’s personal lawyers, the Justice Department, and the IRS.

As Cornyn himself pointed out, the agreement states that it “may be modified only with the written agreement of the Parties,” but no one but Blanche signed it.

Even setting these things aside, it’s unclear why Cornyn and Tillis would accept Blanche’s representations as a resolution of this issue.

Trump has spent the last few days talking about how he still wants to compensate the rioters, and Blanche told the Judiciary Committee he believes that he is constitutionally obligated to follow Trump’s instructions because Trump is the president. By Blanche’s own account, Trump can at any point tell Blanche to reverse himself — publicly or privately.

Blanche also refused — for months — to commit to ending the fund in writing. He wouldn’t do it when other members of Congress asked, and he wouldn’t do it when a federal judge ordered him to do it. The fact that he is claiming to do it now — under duress, and even then not really — is telling in its own right.

This is a strange way for Cornyn and Tillis, who are both leaving the Senate when this Congress ends, to end their careers in the chamber. Trump effectively forced them both out of their jobs, and he appears to be having his way with them again.

If Blanche is confirmed, the two of them, along with every other Republican who votes to confirm him, will own Blanche’s legacy: the abuses of authority, the misrepresentations to the courts, the attacks on the judiciary, the endless, rank incompetence, and the politicization and hollowing out of the department.

Things are likely to get worse — potentially much worse — if Blanche stays at the helm.

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The Reflecting Pool Debacle

Another episode of high-level buffoonery

Late Friday, the U.S. Attorney’s Office in Washington, D.C., moved to dismiss the indictment against David Hearn, who had been charged with damaging the Lincoln Memorial Reflecting Pool. It turns out that Jeanine Pirro was totally wrong and, now by her own admission, that “the damage was the result of a botched installation and not vandalism.”

The whole debacle is bad enough, but the government’s filing somehow manages to make things worse with pages of finger-pointing at the Department of the Interior.

“It was not until [the U.S. Attorney’s Office] repeatedly reached out to DOI dozens and dozens of times that DOI slowly started trickling information to [the DOJ],” the filing asserts. “Had DOI been forthcoming with the information clearly in its possession, the government would not have sought a grand jury indictment.”

The episode is surreal and emblematic of the professional incompetence that is now commonplace at the Justice Department under Trump.

What actually happened here? Pirro rushed to find some support for Trump’s fabricated claim about vandals damaging the pool, her prosecutors then rushed through a case that never made any sense, and they are now blaming the client agency for the screwup.

It’s hard to say who comes off worse here, but you don’t have to choose: Every government official involved — from DOJ to DOI, including Secretary of the Interior Doug Burgum and on up to the president himself — looks ridiculous.

As for Pirro, add this to the seemingly endless list of embarrassing blunders: the case against the Subway sandwich guy, the effort to indict six Democratic lawmakers over their video encouraging members of the military to refuse illegal orders, and the criminal investigation into Jerome Powell.

Judges and juries in D.C. have expressed their disapproval of the decline in professionalism and competence in the office, as have former prosecutors who once worked there.

Republicans in Congress appear poised to give this dismal performance their stamp of approval by confirming Blanche.

The Docket

The intense pressure facing Fauci, as GOP lawmakers push for his jailing (WP): “The scrutiny recalls the darkest days of the pandemic — except now, rather than the government marshaling its resources to defend Fauci, he is paying for his own security.”
Judges Urge DHS Lawyer to Remove Posts on ‘Worst’ of Judiciary (Bloomberg): Federal judges object to DHS General Counsel James Percival’s public complaints.
Trump Targets ‘Birth Tourism’ After Birthright Citizenship Loss (Bloomberg): We should expect more cases of alleged “birth tourism” to emerge as part of the administration’s ongoing effort to undermine the constitutional right to birthright citizenship.
How a Top Law Firm Went From Standing Up to Trump to Bending the Knee (NYT): A deep dive into how Paul, Weiss — the law firm where I once worked — caved to Trump last year. Congressional Democrats have expressed strong disapproval of the White House’s deals with large law firms, so things could get worse for the firm if Democrats take back one or both houses of Congress.
This Is Not the Way to Hold A.I. Companies Accountable (NYT Opinion): The New York Times editorial board comes out against state ownership of the AI industry.

Todd Blanche Is Very Bad at His Job

Ankush Khardori — Fri, 31 Jul 2026 22:12:55 GMT

The Justice Department (Skdb)

In this edition:

New at NYT: Todd Blanche Is Very Bad at His Job
The Blanche Debacle Continues
The Docket: A roundup with notes on major legal stories
Off the Record: Some non-legal items that caught my eye

I have a new guest essay at The New York Times today about how Todd Blanche is a bad lawyer.

Here’s the intro:

“Todd Blanche is a STAR,” President Trump declared defiantly on social media on Thursday as he sought to clear resistance from two Senate Republicans to his nominee for attorney general. Instead of quickly acceding to the senators’ modest requests — for written guarantees confirming the elimination of a slush fund for Jan. 6 rioters and the limiting of a tax immunity deal for Mr. Trump — the president raised withdrawing Mr. Blanche’s nomination until next year, after they leave office, as a way to sidestep their opposition.The episode made the case against confirming Mr. Blanche even stronger, highlighting the chaos and incompetence that has marked his time at the Justice Department and providing a timely reminder of what he would bring to the job.Many others have pointed out that Mr. Blanche has targeted Mr. Trump’s political adversaries with bogus criminal cases and overseen an exodus of some of the Justice Department’s most experienced lawyers.Less noted but as important: He is also embarrassingly bad at lawyering.

You can read the rest here.

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The Blanche Debacle Continues

At the moment, it’s unclear whether Blanche’s nomination can get to the Senate floor next week. The two Senate Republicans on the Judiciary Committee who have objected — John Cornyn and Thom Tillis — have suggested that they may have been close to some sort of resolution with Blanche, but today Trump screwed that up by sending out a social media post suggesting that he still wants to make the payouts at issue in the fund — the fund that Blanche has repeatedly insisted is so obviously “dead” that he doesn’t need to put his name on anything saying so, even if the person asking is a member of Congress or a federal judge.

The irony of all this is that Cornyn and Tillis weren’t asking Blanche for much — they still aren’t asking for much — and that remains the actual problem here. As Trump’s post made clear, his desire to pay taxpayer money to the Jan. 6 rioters — and the possibility of that actually happening — will not be “dead” unless and until Congress passes a law killing it. This has been clear all along, which is presumably why Blanche has for months refused to sign anything to that effect.

In any event, Blanche’s commitments in writing would be meaningless for two reasons — first, he has said repeatedly, including under oath at his confirmation hearing, that he believes he is constitutionally obligated to follow Trump’s instructions; and second, if confirmed, he will not be the attorney general forever. Trump could fire him at any moment.

It’s hard to believe that Cornyn and Tillis don’t know these things, but they are acting as if they are mounting some serious challenge to Blanche’s confirmation even though, by their own logic, his decision to sign off on the slush fund should already have been disqualifying. Similarly, it’s hard to understand how Blanche and the administration have been unable to navigate these very modest obstacles.

The Docket

Exclusive: Thousands of children, sponsors arrested by ICE after tips from US child migrant agency (Reuters): Since January 2025, the Office of Refugee Resettlement — which, among other things, is supposed to take care of unaccompanied minors who have crossed the border — “has shared more than 460,000 ‘leads’ with ICE about unaccompanied children, their sponsors — usually parents or other relatives — and additional household members, leaving them vulnerable to detention and deportation.”
Overland couple shot dead in Guatemala after local ICE stop led to deportations (St. Louis Public Radio): A couple was forced to go back to Guatemala by Trump’s immigration crackdown. Shortly thereafter, they were found shot to death, hands bound, with their 14-month-old daughter left crying beside them. This is not the first time that the administration’s deportations have been de facto death sentences.
Trump’s DOJ charged hundreds with assaulting officers. Many cases were dropped, but the damage was done (Reuters): “Reuters interviewed a half dozen people who, despite the abandoned charges, reported lost jobs, legal fees and in some cases a flurry of online threats that arrived after federal officials publicized their arrests.”
Thousands of immigrant children may soon face a judge alone (WP): The Trump administration wants to take lawyers away from tens of thousands of children.
Immigration agents used racial slurs referring to Latinos in text messages, video obtained by ACLU (LAT): Some of the agents are racists.

Off the Record

Some non-legal items that caught my eye

Chris Murphy Demands Answers From Education Department Over Disputed Civics Competition (NOTUS)
The 25 Best Documentaries of All Time, Ranked (The Hollywood Reporter)
My 2-year-old’s guide to a Saturday in Scotland (YouTube)

Can Democrats Make Peace with the Tech Industry?

Ankush Khardori — Wed, 29 Jul 2026 13:36:36 GMT

Democratic Congressman Sam Liccardo in the House of Representatives

In this edition:

At the moment, Todd Blanche’s nomination for Attorney General remains in limbo. Here’s what you need to know:

The Senate Judiciary Committee is scheduled to meet tomorrow at 9am to consider Blanche’s nomination.
Republican Senator John Cornyn remains the key holdout. He insisted yesterday that Blanche sign a document that would assure Cornyn that the “anti-weaponization” fund is dead.
Cornyn is reportedly meeting with Blanche at 10:30am today.
Separately, the Justice Department has reportedly proposed language for an appropriations bill that would block the fund.
Blanche may still be able to get Cornyn on board, but he and his allies have to be considering backup options by now.
Some possibilities: (1) delaying the committee meeting and potentially pushing Blanche’s nomination into mid-September, when the Senate returns from recess after leaving at the end of next week; (2) lobbying Cornyn to vote Blanche out of the committee while Cornyn votes “no” on the Senate floor; or (3) having the Judiciary Committee report Blanche’s nomination to the full Senate with no recommendation.

Can Democrats Make Peace with the Tech Industry?

A Democratic congressman from Silicon Valley discusses AI legislation and the party’s frosty relationship with the tech industry

The AI industry is moving fast. Congress is not.

That’s the basic state of play on legislation concerning an industry that has emerged as a major force in American society, generating concerns over job losses, data center construction, and security risks.

I recently discussed these issues with Democratic congressman Sam Liccardo, whose district in California includes San Jose, Palo Alto, and Mountain View. Liccardo has introduced legislation to alleviate AI-related job losses, opposed a moratorium on data-center construction in favor of more moderate policy solutions, and proposed federal preemption of state laws for companies that satisfy federal safety standards.

Two things have made this difficult.

The first is that although Republicans control both Congress and the White House, the party, in Liccardo’s words, has been “reduced to Donald Trump’s whims,” and “those whims on AI seem to be as mercurial as Donald Trump’s ceasefire declarations in Iran.”

The second is that Democrats have not coalesced around a vision for AI and are working to regain the support of the tech industry in the wake of Joe Biden’s presidency.

“There was a growing divide between many longstanding Democrats in Silicon Valley who had supported [Barack] Obama, supported [Bill] Clinton, believing we were the party of innovation,” Liccardo told me about the impact of the Biden era. “I heard a lot of frustration about everything from antitrust policy to tax treatment to regulatory overreach, a whole host of issues.”

Liccardo wants to address this problem and “build a stronger bridge — or rebuild a bridge” between the Democratic party and the tech industry.

This interview has been edited for length and clarity.

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There was news recently that some OpenAI models broke out of their constraints and hacked another AI company. What was your reaction when you heard about that story?

It provides context about just how hard it is to install safeguards that will be effective in containing risk.

The story seemed to confirm fears that a lot of people have about the industry moving too quickly: Do they really have a grasp on what it is that they’re doing?

I think that the leaders of several of these companies have conceded that they don’t have a firm grasp. And I think we should take them at their word.

At a very high level, how do you see the state of play on AI legislation in the current Congress? As a practical matter, at least in this Congress, under the Republican majority, nothing of any significance seems to be happening.

Am I missing things that are happening behind the scenes among you and your colleagues?

I don’t think you’re missing much. Usually the advantage of having a White House, a Senate, and a House of Representatives controlled by the same party is that you actually would see significant progress on major legislation aligned with the objectives of that party.

In this case, the party is reduced to Donald Trump’s whims in terms of its agenda. And those whims on AI seem to be as mercurial as Donald Trump’s ceasefire declarations in Iran.

It seems like the White House has a pretty clear vision of AI legislation and regulation — that there should basically be none anywhere at the federal level or the state level — but they’re not actually trying to move a bill that would formalize that framework through Congress because presumably it would not get enough votes.

I think clearly the White House would like to exert control and have governmental authority imposed upon the market in various ways, and we can talk about those ways in a moment.

But you might be right that Donald Trump would prefer that it not happen the old-fashioned way — namely Congress enacting legislation that subjects everyone to a transparent, rigorous, and fair process.

What do you think is a sensible way of moving forward here? You recently introduced the SKILL Act. What’s your particular vision for how you’d like to see this industry regulated?

Well, I think it would be good to start with where the American public is. We know that AI is polling below ICE because of widespread fears about three general topics.

“AI is polling below ICE”

One is jobs and whether or not Americans will see themselves in a post-AI economy or can see themselves benefiting in a post-AI economy.

The second is data centers and all the impacts those may have on local communities.

And the third is around safety, particularly safety with regard to catastrophic risks.

To say it more succinctly, what we need to focus on are jobs, data centers, and safety.

What I think is likely to be able to move through Congress in a happy world sometime between Election Day and December 31st might be some modest proposals around jobs and data centers, but I am not yet seeing enough consensus build around safety.

I have a lot of views. I put some of those views out in op-eds that I put out in the Wall Street Journal and Washington Post. So I’m not secret about where I stand on all this stuff.

I’m working on a bill now that’s consistent with what I said in the Wall Street Journal about how Democrats ought to be looking at data center buildout as a great opportunity to deliver substantial investment to local communities, and to enable the investment in the grid that we critically need to transition to a green economy.

We’re very deep in the weeds and we have bill text, and we’re sharing it with advocates and people in industry and labor and lots of other folks. What I recognize, bluntly, is that a bill that says we’re going to mandate renewables is probably not going to go far, certainly as long as Republicans control both chambers, but even after November, we still have to get 60 votes in the Senate.

So we’re going to need to be creative about how we can leverage this moment for the benefit of local communities and for our environmental ambitions.

How are these issues being handled within the Democratic caucus? Do you feel like there’s a sufficient process around evaluating these issues, or are you sort of doing your own work and trying to get your colleagues’ attention on this stuff?

Well, it goes back to the Will Rogers line, which is that I’m not a member of any organized political party.

There are a couple of dozen colleagues who are deeply engaged in these issues through various caucuses — for example, the Build America Caucus that Josh Harder’s leading very well with Scott Peters and others — there’s a group there that’s working on it.

We’re trying to do some things that could be bipartisan. There are convenings we’ve been doing with frosh to try to engage with AI tech leaders to see if we can find some common ground across the aisle on safety regulation.

So there are various groups doing different things, but I’d be lying if I told you there’s a platform that’s going to roll out in three weeks that will reflect exactly how we’re going to tackle this stuff.

I do know that Minority Leader Jeffries is very deliberately working with a set of working groups in different areas to deliver a succinct set of legislative proposals that we can drive right out of the gate in January.

As you can imagine, they’re overwhelmingly focused on reducing the cost of living. And so naturally, things like energy fit into that.

So there’s some overlap in different ways for some of the stuff. But I can’t tell you that there’s an AI policy framework that’s imminent.

Can you talk a bit about your Innovation for Good coalition?

It became very apparent to me as mayor of San Jose and then subsequently, as I was running for Congress, that there was a growing divide between many longstanding Democrats in Silicon Valley who had supported Obama, supported Clinton, believing we were the party of innovation, and were growing increasingly disappointed with what they viewed as a Biden administration that with a few exceptions — for example, the CHIPS Act — generally didn’t get it about innovation in tech. And by “get it,” I mean not that anybody expected Democrats to be supporting oligarchs, but that Democrats traditionally had been aligned with innovators.

I heard a lot of frustration about everything from antitrust policy to tax treatment to regulatory overreach, a whole host of issues.

We put out an agenda with a lot of input from several dozen, if not hundreds, of disaffected Democrats. We put together an agenda that reflected a set of policies that were aligned with Democratic values but were still very supportive of innovation.

It wasn’t just core tech issues, but things like high-skill immigration and support for that and support for housing solutions, because virtually every tech center in this country has a housing crisis.

“Virtually every tech center in this country has a housing crisis”

We took it to the New Democrat Coalition. Various colleagues of mine got involved and tweaked it in different ways, and they ultimately blessed it and endorsed it. We then used that as a framework for us to identify legislation that we’d then be encouraging 114 Democrats in the New Dem Coalition to get behind.

This of course is the largest [Democratic] caucus in the House, so it’s significant that we can get a caucus of this size to endorse legislation.

We’re working on that with roughly nine or ten bills. They’re mostly overwhelmingly bipartisan bills — I think all but one, maybe. We’re trying to be pragmatic about it and identify stuff that can actually move, not necessarily by itself but maybe by attaching itself to other bills.

So there’s been some positive progress here in D.C.

Then back home, what I’ve been doing through Innovation for Good: We’ve got a website online — you can check it out, it’s innovation4good.org — because everyone’s got to have a website, of course.

We’ve got the agenda, we’ve got our legislation there, and then what we’re doing at home, essentially, is trying to build a stronger bridge — or rebuild a bridge — between an awful lot of these folks in the Valley who are Democratically inclined and my colleagues or future colleagues in battleground districts.

We obviously want to forge conversations to help them better understand tech, to understand the unique issues in tech that I think are generally not well understood in Washington, and to get them supported where our tech leaders find themselves aligned.

I went to many of my donors and many folks who had never even donated to me and said, look, I’m trying to see if we can build out a larger pro-innovation coalition. And if you want to help Democrats win in November, all I’m asking everyone to do — to commit to — is to give $10,000 between now and November. I’m not going to tell you who to give money to; I’m not going to tell you how much.

But make sure that you’re giving it to pro-innovation Democrats, and then we’re going to bring a bunch of people to you so you can come kick the tires on the candidate and make up your mind about whether you’d like to support the person.

It’s going very well. We’re getting good turnout — some events, as many as 75, 80 people show up, typically more like 30 or 40 — and we’re raising a good amount of money for these local frontliners who invariably come out to the Bay Area anyway, because we’re the ATM for the Democratic Party.

It’s a way for us to help get people familiar with each other, understand the issues, then hopefully support pragmatic Democrats in these battleground seats.

There are people associated with the party who would define themselves as being much further to the left on these issues. Sen. Bernie Sanders wrote an op-ed in The New York Times — he has a bill, too — proposing to have the U.S. government take a stake in these AI companies. What’s your reaction to that more interventionist type of policy framework?

I think it’s important for people to recognize that we apparently have a socialist Republican president who believes the same thing.

I think it’s important to set this context that we’re seeing Republican legislators in Georgia proposing data center moratoria and [in] South Carolina and lots of red places.

What we know is true across the political spectrum is that tech bashing polls very well. AI bashing polls even better.

So I expect we’ll see lots of advertising in this election cycle about how people are going to be tough on tech and on AI. Whether any of that materializes in policy remains to be seen.

I still have confidence, at least on the Democratic side, that we have a very large coalition of pretty sane people who are interested in protecting local communities and ensuring that Americans have the skills and opportunities they need to succeed economically and that American innovation can continue to lead the world in the 21st century.

The Docket

Inside the fights to maintain TPS status for thousands after the Supreme Court sided with Trump (CNN): Advocates for TPS beneficiaries are trying to prevent the worst-case scenario.
Federal judge blocks Minnesota’s prediction market ban days before it takes effect (NBC): The Trump administration is doing everything that it can to prevent serious regulation of the industry.
Investigators in Comey seashells case omitted key facts and distorted others, defense lawyers allege (WP): James Comey moved to dismiss the seashells case on various grounds.
Supreme Court Job Approval Slumps to Record Low (Gallup): The decline appears to be driven by Republicans — suggesting “that rulings unfavorable to the Trump administration this term, such as those on tariffs and birthright citizenship, weigh more heavily in Republicans’ evaluations of the court than the rulings that favored Trump and the GOP.”

What to Know About the Legal Challenge to the New Trump Tariffs

Ankush Khardori — Mon, 27 Jul 2026 13:24:48 GMT

Shipping containers (Martina Nolte)

In this edition:

What to Know About the Legal Challenge to the New Trump Tariffs
The Worst Argument to Confirm Todd Blanche
The Docket

The first major legal challenge to Trump’s new tariffs is already underway at the U.S. Court of International Trade, and it was brought by the same legal advocacy group that successfully toppled the so-called “emergency” tariffs that Trump levied last year.

Those tariffs were pretty much doomed to fail as a legal matter, but this time around, the result could be very different.

The Trump administration purported to justify the latest round of tariffs under Section 301 of the Trade Act of 1974, which authorizes the government to impose tariffs on foreign countries when the U.S. Trade Representative determines that they have used “unjustifiable,” “unreasonable,” or “discriminatory” trade practices against the U.S.

The Trump administration claims that the new tariffs are justified by concerns over forced labor, but as The Wall Street Journal notes, “The broad outlines of Trump’s trade war are mostly staying the same,” and the “changes are largely aimed at sustaining a tariff agenda that has run into legal trouble.”

There is another word for this: pretext.

That’s essentially the argument being advanced by the plaintiffs in the new challenge, and it has obvious intuitive and practical appeal. Put simply, the Trump administration has swapped out the old, bad legal rationale for its tariff regime for a new, less bad one that happens to be disingenuous on the merits, since there is no way to actually make sense of the sweeping tariff regime on the grounds of forced labor.

The administration’s legal pivot here was not surprising. It was one of the scenarios that Timothy Meyer, a law professor and expert on international trade law, posited to me while we were waiting for the Supreme Court to throw out last year’s “emergency” tariffs.

It is, however, far from clear that the plaintiffs will be successful this time around — but that isn’t because the arguments are bad. It’s because the Court of International Trade has historically been deferential to the executive branch when it makes determinations under the purported authority — and at least nominally pursuant to the relevant procedures — of a tariff law passed by Congress. That much seems to have happened here.

If you find this odd, you are not alone. There are theories of judicial interpretation that are attentive to these sorts of practical realities, but they are not exactly in fashion among trade judges or, more to the point, the Republican appointees on the Supreme Court.

This is despite the fact that there are plenty of reasons for the same three Republican appointees who joined the three Democratic appointees in striking down Trump’s “emergency” tariffs to do so again.

For Chief Justice John Roberts, it’s his legacy, which he cares about but which is already on very shaky ground as a result of the court’s Trump-era rulings. For Amy Coney Barrett, it’s her self-respect and long-term interest in maintaining the appearance of independence in the decades that she may serve after Trump leaves office. Neil Gorsuch supposedly co-wrote a whole book criticizing the arbitrary use of executive power, and although that book was disingenuous and bad, his name was on it.

In the meantime, the latest Trump tariffs are just as much a political issue as they are a legal one. The president gets his tariff authority from laws passed by Congress, and if the Republican majority wanted to, it could block these tariffs.

Congressional Republicans don’t appear inclined to do that, but the November midterms are fast approaching, and the economy and affordability remain at the top of Americans’ minds. Voters will get to weigh in on all of this soon enough.

The Worst Argument to Confirm Todd Blanche

Even the Trump White House doesn’t believe it

The Senate Judiciary Committee is scheduled to vote on Thursday to advance the nomination of acting Attorney General Todd Blanche to the Senate floor, but at the moment, it remains unclear whether he has the necessary votes in the committee or the full Senate Republican conference.

It appears that Blanche’s last remaining obstacle in the committee is persuading Republican Senators Thom Tillis and John Cornyn that the so-called “anti-weaponization fund” is truly dead. Tillis and Cornyn, however, seem to want to get to “yes” on Blanche, at least based on the tenor of their public comments and the fact that they are entertaining this issue in the first place.

Even if the idea of the fund were not itself disqualifying, there is no big mystery about how to end it. Blanche and President Trump’s lawyers could sign a one-paragraph document that voids the earlier deal, or Republicans could insist that Trump sign a law that permanently blocks the fund and any other efforts to make payments to people charged in connection with the efforts to overturn the 2020 election. The whole display is like watching people fumble with a lock when they already have the key.

Still, as all of this continues to unfold, a particularly bad argument in favor of Blanche’s confirmation has been making the rounds — namely, that Blanche can continue to run the Justice Department even if he isn’t confirmed.

The idea has popped up among political reporters, in a Wall Street Journal op-ed by former Attorney General Bill Barr endorsing Blanche’s nomination, and in commentary from some legal analysts who are opposed to Blanche’s nomination. As a legal matter, they appear to be correct, and there is at least arguable precedent to proceed this way based on former President Joe Biden’s decision to let Julie Su serve as acting secretary of labor for almost two years without being confirmed by the Senate.

The problem with this argument is political, not legal, and it’s specific to the Justice Department, which holds much greater power and much greater significance in the eyes of the American public than the Department of Labor.

If the Senate doesn’t confirm Blanche, that outcome will correctly be interpreted by judges, lawyers at the department, and lawyers in the private sector as a vote of no confidence in Blanche. He would lack the political legitimacy to lead the department on a long-term basis after that, and all of his decisions would have a very large cloud hanging over them. The department’s standing among the public and the judiciary, which has already deteriorated on Blanche’s watch, would get even worse. On a personal level, Blanche would also have been publicly humiliated.

The Trump White House appears to understand the political dimensions of this. After all, Trump nominated Blanche for the permanent post in the first place. If the nomination falls through, it’s possible that the White House decides to keep Blanche in the acting role on an indeterminate basis, but that would come with considerable costs both politically and practically.

The Docket

In Memphis, an ‘anti-crime’ task force quietly turned into an ICE crackdown (NPR): At his confirmation hearing, Todd Blanche touted this supposed “anti-crime” model as something that he wants to extend to other American cities. It turned out to be another immigration crackdown.
Trump administration admits grants for clean energy were canceled based on politics (AP): As bad as it sounds.
Paramount says it will pause its Warner acquisition while legal challenges play out (NPR): The companies agreed to hold off on closing the merger until June 2027 so that the court can hold a trial instead of an expedited pretrial hearing.
Texas DA says substances found after fatal ICE shooting were not drugs (The Hill): The DOJ suggested that Lorenzo Salgado Araujo’s van had drugs in it. This was false, but even if it were true, it wouldn’t have justified his killing.
US appeals court upholds injunction that blocks Trump’s order to create a federal voter list (AP): The Trump administration may try to take this to the Supreme Court.

Todd Blanche Was Right About One Thing

Ankush Khardori — Fri, 24 Jul 2026 16:03:26 GMT

Todd Blanche leaving the Manhattan criminal courthouse in 2023 (BruceSchaff)

In this edition:

The Lead: Todd Blanche and the end of the “anti-weaponization fund”
Exhibit A: The criminal referral of Jack Smith
Objection: Conservatives debate the legislative prowess of JD Vance
The Docket: A roundup with notes on major legal stories
Off the Record: Some non-legal stories that caught my eye

Todd Blanche’s nomination to serve as Attorney General appears to be on track for a vote in the Senate Judiciary Committee late next week and, if he clears that hurdle, a vote in the full Senate during the week of August 3. At this point, one principal obstacle in the committee remains: ending the administration’s so-called “anti-weaponization fund.”

This is, of course, a problem of Blanche’s — and the administration’s — own making. The fund was a terrible idea, Americans oppose it by a 2:1 margin, and Blanche publicly passed on at least two opportunities last month to put the issue to bed — when he was asked in the House Appropriations Committee to confirm in writing that the fund was dead (he refused), and when a federal judge in the Eastern District of Virginia ordered him to confirm in writing that it was dead (he refused). Two Republicans on the committee — Thom Tillis and John Cornyn — have since said that they need to be satisfied that the fund is not moving forward before they vote for Blanche.

There has been a solution to this problem all along: Congress should pass a law. That law doesn’t require Blanche’s acquiescence or the DOJ’s sign-off, and if Trump were to veto it, he would simply be making clear that the administration will, in fact, try to make the same payouts through other mechanisms.

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Last week, when Cornyn pressed Blanche on this issue during his confirmation hearing, Blanche was effectively forced to concede that a law that would permanently bar the fund is unobjectionable. It’s “certainly something that could be done,” he said, and “we very much are okay with that.” In response to follow-up questions from the committee’s members this week, Blanche reaffirmed this position.

At the moment, however, there does not appear to be any bill text in circulation or any serious consideration being given to the idea beyond talking about it. Meanwhile, in Blanche’s response to the committee’s questions, he inadvertently underscored why the Senate cannot simply take his word that the fund is “dead.”

Asked what he would do if “the President directs you to reverse your decision and move forward with the Fund,” Blanche responded that it “would be inappropriate for me to comment on hypothetical communications I may or may not have with the President” before asserting again that the fund “is dead.”

Blanche’s word on this point is meaningless for two reasons. First, as Blanche has indicated before and at the confirmation hearing itself, he believes that he is constitutionally obligated to follow the president’s directives. Second, Blanche is not being nominated to serve as Attorney General for Life — he could be fired at any moment, and an acting official or successor could change course.

It would not be difficult to craft legislation to kill this ill-conceived idea for good.

The law could (i) permanently block the executive branch from spending any of the funds contemplated by the “settlement agreement”; (ii) prohibit any settlements with or payments to people charged by the Justice Department in connection with Trump’s effort to overturn the 2020 election and the siege of the U.S. Capitol on Jan. 6; (iii) impose criminal penalties on any person, either inside or outside of the government, who attempts to circumvent those prohibitions; and (iv) include an explicit and automatic claw-back mechanism for any payments made despite those prohibitions.

This isn’t rocket science. If Tillis, Cornyn, and other Republican senators were serious on this point, they would insist that Congress pass and Trump sign this law before voting to confirm Blanche.

Exhibit A

A close reading of a single document

On Wednesday, House Judiciary Committee Chair Jim Jordan sent a criminal referral to the Justice Department that claims that former special counsel Jack Smith lied to Congress about messages that his team obtained from lawmakers in connection with Smith’s investigation into Trump’s attempt to overturn the 2020 election.

The referral seems doomed to failure, even if all you do is read Jordan’s letter.

Here’s what actually happened: Smith was asked whether his team sought “a search warrant” for the content of text messages from members and whether “toll records” they obtained from phone companies included “the content” of any phone calls or text messages with members. Smith answered — accurately — “no” to both lines of questioning.

Republicans, however, recently disclosed that Smith’s team had obtained some lawmakers’ communications through a different investigative tool — a subpoena to the National Archives for text messages from executive branch officials. That is not inconsistent with what Smith said.

In his letter, Jordan writes that Smith’s testimony “gave the impression that neither Mr. Smith nor his team had access to the content of Members’ privileged text messages.” That phrase alone — “gave the impression” — is a tacit admission that this is a weak false-statements theory. It may have been spun up simply to throw some red meat to the GOP’s base.

You know what would have clarified this during Smith’s testimony if Republicans had actually been interested in this topic? Some competent questioning. Instead, they asked what they asked, and they don’t seriously dispute that Smith’s answers were accurate.

Objection

A difference of opinion

An amusing, legal-adjacent dispute recently took place among Trump-friendly conservative writers over the power of Vice President JD Vance.

A columnist at The Wall Street Journal kicked things off last week with a piece arguing that Vance was neglecting his duties as the president of the Senate and that this was complicating the GOP’s efforts to pass various bills before the midterms.

A pile-on from Vance supporters ensued. They argued, among other things, that the column omitted some key facts about Vance’s visits to Capitol Hill.

Today, the WSJ columnist returned with a piece rebutting the factual objections and arguing that Vance and his supporters need to toughen up.

This dispute might be interesting if it weren’t for one inconvenient fact: There is no meaningful evidence that Vance is, was, or could ever become a skilled negotiator or legislative tactician.

He accomplished nothing legislatively while he was in the Senate, and his highest-profile negotiation — the diplomatic effort to secure a deal to end the U.S. war with Iran — has been an unmitigated failure.

The Docket

Trump Imposes New Global Tariffs, Drawing Protests from Trading Partners (Reuters): This was bound to happen, as I wrote when Trump’s “emergency” tariffs were still pending before the Supreme Court.
U.S. Withdraws Subpoenas Issued to New York Times Journalists (NYT): Come for the headline, stay for the details about how DOJ prosecutors massively bungled this.
Trump Targets State Officials Via New DOJ Public Corruption Team (Bloomberg): “Former and current DOJ attorneys said they’re concerned the administration is standing up a partisan-driven unit after dismantling the public integrity section — a DOJ headquarters office that was stripped of its nationwide jurisdiction over cases involving elected officials abusing their office.”
DOJ’s ‘Alien Terrorist’ Court Tactic Set for Lengthy Legal Fight (Bloomberg): “The Trump administration faces an arduous legal path and due process questions as it activates a never-before-used court for suspected noncitizen terrorists.”
DHS Lawyer Calls Out Judges by Name as Judicial Threats Rise (Bloomberg): More unprofessional and unproductive complaints, this time from the Department of Homeland Security’s top lawyer.

Off the Record

Some non-legal stories that caught my eye

‘They Are Skilled at Chaos and Cruelty’

Ankush Khardori — Wed, 22 Jul 2026 16:37:52 GMT

LaMonica McIver in her office in Washington, D.C., on Tuesday

This column was originally published at openfile.news

LaMonica McIver was sitting in the audience last week for Acting Attorney General Todd Blanche’s confirmation hearing, but she had an unusual perspective on the proceedings.

Blanche is the reason that McIver, a first-term Democrat in the House of Representatives, is under criminal prosecution for allegedly assaulting immigration officers in May 2025 outside of Delaney Hall, a privately run ICE detention facility located in McIver’s district in Newark, New Jersey.

The case should never have been brought. You can watch videos from that day, or you can read a deeply reported account of the events, but the upshot is that the belligerence and ineptitude of the officials running the facility created needless chaos, and McIver became the Trump DOJ’s attempted scapegoat. The Third Circuit Court of Appeals is currently considering whether the case should be dismissed under the Constitution’s Speech and Debate Clause.

On Tuesday, I sat down with McIver in her office to discuss Blanche’s confirmation hearing and the professional and personal toll that the Justice Department’s case has already taken on her in the form of time, money (the case is on track to cost her $1 million in legal fees), and stress, even as she insists that the case will not derail her work on behalf of her constituents. “Even if I’m breaking in silence,” she told me, “I will never break in public.”

We also discussed congressional oversight of ICE, the latest killings by ICE officers, and McIver’s views on why it has become necessary to dismantle the agency.

This interview has been edited for length and clarity.

You sat in on Todd Blanche’s confirmation hearing last week. What was it like watching him vie for a promotion?

It’s honestly unreal, the moment that we’re in. Sometimes I have to keep pinching myself, like, “Oh my God, is this really happening? It cannot be this terrible. This cannot be happening.”

I think back about how he gave that order to have Mayor Ras Baraka in Newark arrested for no apparent reason, and he admitted to doing that in the hearing. That was one of many problems.

But the entire hearing was just a sham. His responses on so many issues, especially the Jeffrey Epstein survivors, he just honestly did not care. Many of the members were asking him, “Hey, will you meet with the survivors?” He’s like, “Oh, I have someone on my staff right now with me.”

I’m like, “What? Are you serious?” You didn’t need to come for this confirmation hearing to meet with those survivors.

But honestly, it’s just disgusting that this is where we’re at as a country — that we have him being recommended for this job, serving as acting, and at the end of the day, he’s just another bad character in this administration.

Blanche will probably not be any kind of improvement on Pam Bondi. In certain respects, he may be worse.

Correct.

It looks like he may be confirmed on a party-line vote.

I keep my hopes high because I feel like two Republican senators on the committee may sit this thing out and say no. But once again, you just never know. I know one of the requests from one of them was for Blanche to meet with the survivors, which he claimed he did, to check a box.

We should learn from all of these different appointments that we don’t need people who are literally there to serve Donald Trump and his interests. We need someone to serve the American people and defend the Constitution and the law.

The members that you were just referring to — Thom Tillis and John Cornyn — they’re not running again, so theoretically they have nothing to lose. Cornyn lost his primary after Trump endorsed his opponent. You had Tillis say, why don’t you meet with these Epstein victims and survivors. That happened, and Tillis seems okay with it, even though the other participants were offended by what happened.

There have also been reports about Cornyn working with the administration to get some sort of assurance on the so-called “anti-weaponization fund.”

Once again, this is crazy — that it even was thought up and literally made public.

It’s one thing that they thought it up, but even when Blanche was being asked about it or has been asked about it in the past, he’s just quick to say that it’s not happening anymore. And it’s like, no, no, no, let’s go back into, “What was your thought?” He’s in front of this hearing and talking to people as if, “I don’t have to explain myself, and I can give you the meekest or most I-don’t-give-a-crap answer.”

We saw Pam Bondi do that many times. She would have temper tantrum meltdowns in front of Congress.

But to me it was just the disrespect. These people do not have any respect for you as a Republican or Democrat to even answer your questions.

The settlement was the result of a sham lawsuit orchestrated by the president’s lawyers. The Justice Department didn’t defend it, then Blanche just supposedly settles it and creates a $1.8 billion fund for the president’s allies.

The real question is, “Why did you ever think this was a good idea?”

They haven’t gotten either. They didn’t get an explanation of why it was a good idea in the first place or any reassurances that it wouldn’t happen moving forward.

If you confirm him, he gets his job, they’ll be doing whatever they want to do.

He’s had multiple opportunities to put this to bed. Your colleague Grace Meng asked him to put it in writing. He said no. A judge in the Eastern District of Virginia ordered him to put something in writing. He said no.

Dismissive.

The thing of it is, a personal assurance from him is not sufficient for one very obvious reason, which is that he will not be the attorney general forever. So I don’t even understand —

Honestly, you just can’t trust anything from them. In their mind, they are above everything and they will do things that they know that they cannot do but they’ll still try to do them.

That is what their whole purpose and their agenda is. They are so skilled at chaos and cruelty that it’s truly unbelievable. It’s actually remarkable to watch.

And that’s most Americans right now are thinking every time they turn on the TV, just like my mom. She’s a news fanatic. She’s looking for the weather, looking for local things that happen. And she told me, “You know what? I get so tired of turning on the news.”

And I was shocked, I was like, “You?” My mom wants to be on the news if she could.

She’s like, “I just want to get back to hearing regular news, regular things happening.” I’m like, “Regular bad stuff, mom?” She’s like, “Anything other than hearing about Trump and the administration.”

That’s the attitude of Americans. They’re exhausted, and their personal experiences and their lives are not getting better while all of this chaos is happening around them.

It’s been over a year since the incident at Delaney Hall. What has it been like having this case hanging over your head personally and professionally?

I think every chapter or time period, it’s changed. In the moment that I’m in right now, I’m extremely exhausted. I think maybe it’s the pregnancy — the pregnancy hormones, me making a human life — that makes me more exhausted.

In the beginning, it was like, this is unbelievable. This is wrong.

Now we’re being pushed to the limit of this case — having to keep fighting it every step of the way, having to raise dollars personally for this case.

I think back when we had the hearing at the Third Circuit and one of the judges was saying, “It’s hard for me to look away from the point of this case, a case that you will not get a conviction on, but it doesn’t matter for you all because you’re just into putting a person through the pain and bleeding blood, sweat and tears for this. And is that right?”

Those words just continue to play through my head from that day, because it’s like, how unfair is it that these people, this Department of Justice, this president, gets to do something like this to me and many others, that they’re charging people with these hideous crimes that make no sense just because they can.

And all of the trouble that goes with that for me, for my family, for my staff, for everyone —who repays us or gets punished for that? Who’s to protect us from this happening?

That’s why I continue to talk about this case not just being about LaMonica McIver. This is about every member of Congress on both sides of the aisle. If an executive branch can do this to me, they’ll do this to anyone.

“If an executive branch can do this to me, they’ll do this to anyone.”

That’s what we try to push people to understand, to talk about the legal point of this all — the legislative immunity, the right for us to do our job. We continue to push that because people just see a black young girl and they’re like, oh, whatever, who cares? And it’s like, no, it’s not who cares.

Of course they’re doing this about who I am specifically, but it’s about my position too and the position that we have to protect the people that elected us to protect them and this executive branch being able to just do away with that and silence their critics.

You’ve been in politics for a while, but this is your first federally elected position. How did you see your first term playing out?

I thought it would be less chaotic and more dry. I didn’t think I would be appearing on MS NOW to talk about this.

Once Trump was elected and sworn into office, I knew things would change. There wouldn’t be much movement of anything [in Congress]. I didn’t predict it would be this nutty and crazy.

Still, I had my faith in Republicans that they would do what was right for the people that they represent, because our folks have the same issues no matter if they’re Democrats or Republicans, and still they failed to do that.

This president has created this environment where it’s his way or no way no matter what, but I will say that despite all of that we have continued to deliver. We have brought over $10 million back to the district. We make sure casework is up to par. We have been out in the community.

Even if I’m breaking in silence, I will never break in public and we will not break to the point where it will result in us not doing the job for the people of the 10th Congressional District. We’ve been steadfast in making sure that we continue to deliver, continue to show up at Delaney Hall, continue to speak up for people’s due process, because we’re not going to stop that and they’re not going to scare me out of doing the job for the people that I represent.

You have a very good lawyer, Paul Fishman.

He’s good and expensive. [Laughter]

That’s exactly what I was about to say.

He better deliver. Put that on the record. [Laughter]

About how much have you spent?

So far we’ve spent probably about close to $600,000 in legal bills, but our case itself is stretching out to a million dollars. Obviously we’re paying the bills as we get money in, as we fundraise.

It’s very difficult here in the House to be able to set up legal defense funds. There are so many layers of approval through Ethics and all of these things to get done, an independent person to run it, and we’re still navigating that space to get that done.

Right now we’re just fundraising into campaign dollars to pay for this case, because I’m not a millionaire. I’m just a regular young girl from Newark. So at the end of the day, it’s been tough.

Paul and the entire team there have been great, they’ve been understanding, but at the same time, it’s just the cost that I obviously did not factor in for. Honestly, I think us as Democrats did not factor [this in], especially how many of us have been attacked and had to get a lawyer. There’s no engine set up to be able to defend ourselves against this president.

Not only is it costing you money and the time to raise the money, but you also lose time attending meetings, preparing for hearings, attending hearings — time you could be spending doing other things.

It’s triple work all around.

A part of being in office, you’re always fundraising, right? You have to have a fundraising operation. I love the idea of getting money out of politics. It’s something that I 100% support. We’re a long way from there, and it’s not something that’ll happen overnight.

But everybody here in office has to fundraise and try to make sure they have dollars to be able to support a campaign.

I have another layer of legal funds, right? Then I have another layer of doing work for the community, right? Getting all of that done, but then having to prepare for these cases.

I think so far we might have missed one suspension vote [during this period]. I have literally walked out of court and headed to the airport to get back here for votes immediately.

I also don’t want my constituents to feel like this situation that’s happening — even though they know whose fault this is and they know the cruelty behind it — I don’t want them to feel like I’m focusing on me or doing this and not focusing on serving them. That’s my first priority.

Do you feel like you’ve learned anything about the criminal justice system that you didn’t know?

Oh my God. I’m like a lawyer now. I should just go study the LSAT at this point and go to law school. We have literally had to go through a learning curve and are still going through a learning curve through everything every day.

I’ve never been in trouble with the law before. The most I’ve had is like a ticket.

I don’t really think I ever told anybody this. When we got these charges, we had to go through the process of going to turn myself in, getting my picture taken —

Pretrial services…

Pretrial services. I’m like, what? Who’s this person I have to check in with?

And they have questions for you!

Yes, literally. Once a month, I have to check in with this lovely lady. She asks me these questions, like, “Are you okay?”

My husband, he owned a gun. I owned a gun. We had to turn these things in. These are the things I had no idea about.

It was me and my husband’s anniversary, and we wanted to go away real quick for a weekend. We were going to go to Bermuda or something like that, something quick. And I’m like, “Oh wait, I can’t go. I can’t go without permission.” And he’s like, “Wait, what do you mean?” I’m like, “I can’t go out of the country without permission from the courts.” He forgot about that, but even me, it wasn’t at the top of my dome.

I travel all the time in state and in the country to go to things, but I’m like, “I don’t know how fast we’ll be able to get permission to just do this weekend getaway, so let’s just stay local.”

You didn’t try?

I asked my lawyers about it, but I just didn’t want to get into a tizzy about it. I was like, “Let’s just go to the beach, spend a day doing that.”

These are the things that are affecting my personal life because I’m being treated like a person that committed a crime.

Also, if you had gone through with trying to get the approval through your lawyers, that would actually have cost you money.

Yes! I tell my team, I’m like, “Don’t call them for anything. Don’t call.”

The meter is running.

The meter is running. So when I reached out, I’m like, you know what, forget it. I’m not going to do it, scrap it, because it’s going to run me a good $2,000 to request this thing. No, thank you.

Legal services are too expensive in this country.

We really need a lot of revamping, a lot of restructuring of our legal system in this country.

For me, I have the ability to be able to raise, and I have people who can teach me the right way, but just imagine how many people in this country don’t. Look at immigrants who are not getting due process.

All of these things make me madder. We have a lot of work to do in this country.

It’s horrible — the system itself — and how it’s set up.

Last month you had a field hearing at Delaney Hall, and the very basic takeaway is that conditions have not improved. In some respects, it seems like they’ve deteriorated.

Oh, yeah.

Can you talk about what you’ve been able to learn, and also the process of learning it? This has been an administration where congressional oversight has been so challenging.

We have to rely a lot on detainees. Delaney Hall was actually one of the first facilities that opened up under Trump 2.0, and it opened up like overnight.

We reached out to the administration because that’s how I’m used to working. I’m like, “Let’s just reach out. Let’s send them a letter. Let’s call.” They were like, “Screw you. We’re not giving you any information.” Nothing.

That’s what sparked us in the first place to go to Delaney Hall. Because this administration would not answer a question, let alone pick up the phone with us to have a decent conversation.

Now, not only am I a member, but I’m also a member of the Homeland Security Committee. So you can’t answer any questions for me? Nothing. Squat.

So everything that we’ve had to find out and do investigations on, it’s been us working with detainees. That’s why the last time, when we went there during the field hearing, they told us we couldn’t speak to detainees anymore. They’re like, “They have to sign a privacy waiver.” We’re like, “Okay, well, let’s get some people some paper.” They’re like, “No, that’s not our job.”

There’s so much corruption going on inside of these facilities now, that they’re literally like, no one can talk to these people. And when they do talk to us, they end up getting transferred.

We’ve had multiple people who have spoken to us — people who have been on the hunger strike and labor strike, different things — but they’ve been transferred all around the country, specifically some of them to Louisiana. Anything that they can do to basically punish them and retaliate against them, that’s what they’ve done.

We learned the things that we already knew back last May, but now it’s worse. People are still not getting adequate food. Food is still spoiled. People are not getting access to medical care. We had women there who were pregnant, who miscarried. We have a bunch of high school students who were there who just turned 18, who’ve been sitting there for months, not able to graduate, for no reason.

“People are not getting access to medical care. We had women there who were pregnant, who miscarried.”

These people have no record, and many of them have some type of legal status protection. You have some folks that were on an approved work visa, student visa. Some of them had orders already from previous judges with no action. Still they’ve been picked up and are being held at these locations.

And then also, people who are terminally ill. You had a man who had stage four cancer. We were trying to help him. What did they do? They knew we were trying to help him. They picked him up and moved him to Louisiana.

This is a man with stage four cancer, an elderly man. What is he doing to you? Or what kind of harm or threat is he to the community that you even have him in here?

We always explain to people that Delaney Hall, before it was this detention center, it was a halfway house. So it’s always been a lower-level institution. It’s not meant to be a prison. The folks that you bring here, they’re not threats to the community, because at the end of the day, this facility is not equipped to hold high-security detainees.

So why are these folks here? It’s all about the money.

We also have a lot of people, a lot of detainees there who signed a voluntary deportation order. If Trump’s number one agenda is to deport people, why are you holding people there for over a year, months?

If they sign a voluntary deportation, wouldn’t you think they’re moving fast to get them back to the country they came from? No, they’re being held there, sometimes transferred again, just to come back to Delaney Hall. Because it’s about the dollars that they’re getting per detainee that they’re keeping.

In the last couple weeks, ICE has killed several more people. What do you think when you read these news reports?

There’s a mix of emotions — that we have a federal government agency that is being allowed to kill people without any accountability. Even thinking back to Renee Good and Alex Pretti, what has happened? What has been the disciplinary action or the investigation that the public has been aware of? Nothing.

“We have a federal government agency that is being allowed to kill people without any accountability.”

That would not happen with a police department in any town. They would not be able to do that, but this federal personal agency of Donald Trump is able to shoot and kill people in the broad daylight, middle of the street, in front of the world, and nothing happens to them.

And people don’t feel outraged about that? The entire country should be outraged about that, because that means they can do that to anybody and get away with it.

You’ve said that “we should definitely abolish ICE.” That’s a phrase that means different things to different people. What do you mean by that? What would you like to see happen to ICE and interior immigration enforcement?

There’s been too much corruption and chaos at this point to revive ICE. We’ve gotten too far away. It’s just like when we have police departments that are running rogue, they go underneath these consent decrees and different avenues to be able to straighten up their act. Well, we’re past that with ICE at this point.

People don’t understand that ICE is a relatively new agency. It came as a result of 9/11 and different other things.

At the end of the day, it’s possible that we can reform back to something safer, more structured, more effective, to the point where it’s not a rogue agency where they’ve hired all of these people we can’t account for. Literally they hire anyone.

We have to reform. We have to abolish what we have now because it’s just too far gone.

Am I saying that we should not have enforcement? We do need some type of enforcement, but not to that point.

I think back to many other presidents. We’ve had enforcement underneath these other presidents, and it’s never been this bad like this before — not this rogue, not this chaotic, not this unleashed behavior and activity.

I think [there’s] a possible way for us to do [that], but we need immigration reform altogether in this country that makes sense. I’m really hopeful and really dedicated to really getting there past this president.

The Docket

U.S. attorney who served for 54 minutes sues over firing by Trump (NBC): The Trump administration’s inability to confirm competent U.S. Attorneys continues to wreak havoc.
Judge says Paramount and Warner must halt merger for at least two weeks, granting states’ request (AP): A coalition of Democratic state attorneys general scored a critical first win in their effort to block the merger. The next phase — a preliminary injunction hearing in the coming weeks — could prove decisive.
US civil rights agency moves to end demographic data collection after 60 years (AP): “Former Democratic EEOC commissioners and civil rights organizations have denounced the proposal, saying it will deprive the agency of a critical tool for uncovering discrimination patterns and tracking how women and racial minorities have fared since the 1964 Civil Rights Act”

Closing Argument

In the coming editions, I’m planning to roll out more short items/features, but I’m still getting the hang of this thing, and I want your feedback.

What do you want to see more (or less) of? I’ve appreciated everyone’s thoughts so far.

More Killings by ICE: a conversation with Ankush Khardori

Ankush Khardori — Tue, 21 Jul 2026 22:47:26 GMT

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A conversation with Ankush Khardori

Ankush Khardori — Tue, 21 Jul 2026 20:48:28 GMT

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Why the Latest ICE Killings Were Different

Ankush Khardori — Sun, 19 Jul 2026 23:27:18 GMT

Joan Sebastian Guerrero

This column was originally published at openfile.news

In a particularly busy news week, the killing of Joan Sebastian Guerrero by an ICE agent in Maine last Monday was easy to gloss over.

There have been other pressing matters consuming the national media, including the deaths of two U.S. troops in Jordan and Trump’s speech on Thursday night.

There have also been legitimately interesting stories about the use of inside information by government officials to personally profit — like the news that President Trump’s media company is going to sell advance access to his social media posts, and a story about how Trump’s teleprompter operator used his knowledge about what would be in Trump’s speeches in order to make money on the prediction market site Kalshi. (Only one of them is under federal investigation.)

Still, the death of Guerrero — a 25-year-old man who was killed in Maine by an ICE agent who was evidently looking for someone else — seemed to merit more attention, particularly coming just days after a similar incident resulted in the death in Houston of Lorenzo Salgado Araujo, who had lived and worked in the U.S. for 35 years.

We heard nothing meaningful about their deaths at the confirmation hearing to promote Todd Blanche from acting Attorney General. There was some coverage on the Sunday shows today, but not enough. One political news site managed to publish a story last week about purported concerns among some Republicans about the shootings that managed to entirely omit the names of Guerrero and Salgado Araujo (unless you count a reference to one of them in a photo caption, which you should not).

In both cases, the deaths appear to have been unjustified. And in both cases, once again, the Trump administration appears unwilling to mount a serious investigation into the conduct of the federal immigration agents. (This is despite massive red flags. The ex-wife of David Brouillette, the agent who killed Guerrero, said, for instance, that Brouillette was racist and violent.)

That itself may have been part of the problem — the sense that we have fallen into a pattern. By now, we know what the federal government will do — which, as a practical matter, is probably nothing — and we know why, which is that the administration wants to continue its aggressive and indiscriminate immigration crackdown. We know that state and local authorities would face an uphill climb investigating and criminally charging federal officials, and we know that it would be very difficult, if not practically impossible, for the families of the victims to sue the ICE agents under federal law.

Another factor relevant to the volume and nature of the coverage was that, unlike in the deaths of Renee Good and Alex Pretti, the public did not have immediate access to video that directly contradicted federal law enforcement officials’ account. That video made it possible for honest observers to say, immediately, that Trump administration officials were lying when they blamed the victims for their own deaths.

Still, while it is hard to disentangle these things, the fact that Good and Pretti were white protestors, unlike Guerrero and Salgado Araujo, likely also played a role in the relatively modest attention from the political and media classes.

You can see these even in the tenor of the coverage, which tends to get muddled on the subject of the victims’ legal status in the country. Did they enter illegally? Were they authorized to work? Did they have a pending asylum claim?

The details can obscure more than they illuminate. Illegal immigration is not a capital offense.

The Docket

They Were Charged With Assaulting ICE Agents. The Cases Are Crumbling. (NYT): The Trump DOJ’s cases against immigration protestors have flopped in the courts.
Most Americans Disapprove of the Supreme Court’s Performance, Poll Shows (WP): “The approval numbers ... are among the court’s lowest in recent memory and reflect an ongoing trend of Americans viewing the court’s decisions as partisan.”
The Justice Department Is Pulling Back on Prosecuting Corporate Crime (WSJ): “In the past, the department has offered leniency to companies for helping to identify and prosecute the individuals who committed crimes. But white-collar lawyers say the Trump administration doesn’t seem to be emphasizing that strategy.”
Top US Tax Lawyer Forced Out After White House Clash Over Tax Audits (Reuters): The lawyer reportedly refused “White House demands to participate in tax audits.”

Closing Argument

This marks the end of the first full week of Open File. Thank you for your interest!

If you have any comments, questions, or suggestions, please send them my way. And please forward this along to folks who you think might be interested.

‘We Are Just Getting Started’

Ankush Khardori — Wed, 15 Jul 2026 23:55:51 GMT

Posters that were put up in Washington, D.C., in the run-up to Blanche’s confirmation hearing

This column originally appeared at openfile.news

Todd Blanche doubled down on the Justice Department’s work under the second Trump administration in his confirmation hearing today before the Senate Judiciary Committee.

“We are keeping America safe, and we are just getting started,” he promised/threatened in his opening statement.

Blanche’s testimony today made clear that the question before the committee — and, if the nomination gets voted out of committee, the full Senate — is a relatively straightforward one. At bottom, the nomination is a referendum on the Trump Justice Department, and a vote to confirm Blanche is a vote to endorse the department’s work over the last 18 months — the abuses, the false claims, the attacks on the judiciary, the incompetence, and the politicization.

Blanche largely confirmed what we already knew about him, for better and worse. He has no problem following Trump’s orders, and he apparently regrets nothing that he or anyone else at the department has done under his watch.

Here are some takeaways from the hearing.

1. John Cornyn Is Still Undecided

Texas Republican Cornyn used his time to ask Blanche about the supposed “anti-weaponization fund” that caused an uproar when it was first announced by Blanche.

Cornyn zeroed in on the fact that the settlement agreement contains a provision that states that the agreement can “be modified only with the written agreement” of the parties, and he suggested that Blanche’s various assurances that the fund is dead may therefore be insufficient.

Blanche struggled through these questions, though he could have put this issue to bed weeks ago — either by committing in writing to ending the fund, as he was asked and refused to do in a hearing before the House Appropriations Committee, or by submitting the declaration that was ordered by a judge in the Eastern District of Virginia, which he also refused to do.

On Monday, the federal judge who presided over the case issued a scathing opinion that effectively concluded that Trump’s lawsuit against the IRS was a sham and a fraud on the court and that criticized Blanche’s prior testimony to Congress on the subject as “at best, misleading and, at worst, disingenuous.”

In another time, this episode alone — settling a sham lawsuit in order to provide a payout to people who tried to overturn an election and misleading both Congress and the courts about it — would have been fatal to Blanche’s nomination.

2. Thom Tillis Is On Board

Tillis, the retiring Republican from North Carolina, made clear today that he supports Blanche’s nomination despite previously expressing concerns about elevating people who supported those who attacked law enforcement officers on Jan. 6. The fact that Blanche had publicly cheered Trump’s pardon of all of the Jan. 6 defendants did not move him.

It may have helped that Blanche misrepresented what he actually said — something he does with unfortunate regularity. When Democrat Sheldon Whitehouse pressed him on his prior comments at CPAC about the pardon, Blanche claimed that he was simply talking “about what President Trump did” and that he was “not celebrating that. It is a fact.”

This is not true.

Blanche was specifically — and positively — citing the pardons as part of the work that the administration and the DOJ have done since Trump’s inauguration to bring “justice” to the American people in response to the Trump prosecutions. The question he was responding to wasn’t even about the pardons. Here’s the video.

3. Blanche Continues to Misrepresent Facts on the Epstein Files

Blanche made two claims about the release of the Epstein files that were false.

First, he claimed that the department had been “prohibited by law” from producing any material from the DOJ’s investigative files, but this is not true. There is a legal prohibition on disclosing grand jury materials, and there are privacy laws that govern government disclosures involving third parties, but the vast majority of the material in the government’s possession was not grand jury material, and the government could always have redacted material concerning individuals.

Second, Blanche said that President Trump had “said from day one” to release the files. As anyone whose memory stretches all the way back to last year may recall, this is not true.

4. Blanche Evaded a Question on Sending Federal Law Enforcement Officials to the Polls

Democrat Amy Klobuchar asked Blanche whether he would comply with the law that prohibits sending armed law enforcement to polls, but he managed to get out from under this question simply by telling her, vaguely, “We’ll follow the law.”

It was fortunate for Blanche that this worked, since he struck a very different tone at CPAC.

“Why is there objection to sending ICE officers to polling places?” he said at the time. “Illegals can’t vote.”

No one on the Democratic side of the aisle appeared to have been aware of this remark.

5. Democrats Missed Other Opportunities to Press Blanche

The political impact of aggressive questioning in a context like this — where Republicans have already largely fallen in line with Trump — may be limited, but it was odd to see Democrats miss very obvious lines of inquiry.

Blanche, for instance, has said that there is “a ton of evidence that the [2020] election was rigged.” Ranking Democrat Dick Durbin mentioned this at one point, but someone could simply have pulled that video up and asked Blanche to describe the “evidence” that he was referring to and then keep pushing him on it.

It’s hard to believe that a competent line of questioning like that would’ve been unsuccessful, since the claim that there’s “a ton of evidence” that the election “was rigged” is a lie.

6. Blanche Was Rude

As I wrote on Sunday, Blanche does not handle difficult questions well — something we saw repeatedly during the hearing.

“That’s an extraordinarily obnoxious question, Senator,” he said to Whitehouse at one point.

“He’s allowed to lie,” he added. “Almost everything he just said is absolutely false.”

“I can answer the question or you can just interrupt me, Senator,” he said to Democrat Richard Blumenthal.

“I definitely did not say that, but nice try,” he shot back in response to questioning from Democrat Alex Padilla.

It’s small in the grand scheme of things, but it used to be the case that the nation’s top law enforcement official was expected to show some respect and decorum at a hearing like this, even with members of the other party.

7. The Nomination Is Still Up in the Air

Even if Cornyn votes to move Blanche out of the committee, Blanche still has a narrow margin to work with among the full Senate Republican conference, and it remains unclear whether Republican senators Bill Cassidy, Lisa Murkowski, and Susan Collins would ultimately vote for him.

The Docket

DOJ Sets Case Quotas for Line Prosecutors in Push to Boost Stats (Bloomberg): This is a bad idea that will incentivize prosecutors to boost their stats by focusing on low-level felony cases instead of complex investigations in areas like white-collar crime, public corruption, and national security. That may be a feature, not a bug.
Michael Cohen Helped Convict Trump. Now, He’s Making Nice Again. (NYT): Who could’ve guessed that Michael Cohen, who is notoriously dishonest and unreliable, would prove to be dishonest and unreliable?
Trump Administration Subpoenas Law Firms, Escalating Pressure Campaign (NYT): The Trump DOJ is trying to depose the leaders of the law firms that they targeted last year, including the firms that caved. The saga continues.
How Trump Transformed the DOJ’s Civil Rights Office (NOTUS): “Now it just seems like you need to not be a Democrat to get hired and you can fall into the job and fumble around.”

Objection

The following headline appeared this week at a political news site: “Trump notifies Congress of new war against Iran.” This was the subhed: “President Donald Trump’s notification that the U.S. is again at war with Iran gives the administration another 60-day clock for military action.”

There is no “new war,” the U.S. is not “again at war,” and the notice sent by the Trump administration does not provide “another 60-day clock for military action.”

What happened is that hostilities have resumed in the illegal war that the Trump administration started in February and that they have been unable to end. A self-serving notice from the White House does not magically change that. At a bare minimum, it should not be reported as fact.

Closing Argument

I’m interested in feedback. If there’s something you’d like to see or any thoughts that you have, please let me know. And if you like what you’ve seen so far, please share it with anyone you think might be interested!

What I Learned By Watching Every Todd Blanche Appearance

Ankush Khardori — Sun, 12 Jul 2026 13:53:26 GMT

Official White House Photo by Abe McNatt

This column originally appeared at openfile.news

The Trump Justice Department faces a political reckoning this week, when acting Attorney General Todd Blanche appears before the Senate Judiciary Committee for a confirmation hearing to serve in the post on a permanent basis. He will likely face sharp questioning from both Democrats and some Republicans on the committee on a wide range of issues, and the outcome is far from clear: He could eventually squeak by and secure confirmation, but it is also very possible that the nomination goes down in flames.

The timeline and confirmation math for Blanche have gotten increasingly muddled with the passing of Lindsey Graham overnight and the indefinite hospitalization of Mitch McConnell. Democrats appear unified in opposition, so Blanche’s nomination could falter either at the committee level if a single Republican votes “no,” or on the Senate floor if he loses three votes among the Senate Republican conference. (I am assuming that South Carolina’s Republican governor promptly appoints a temporary replacement for Graham before a full Senate vote.)

Two Republicans on the committee have at points expressed reservations about the nomination (Thom Tillis and John Cornyn), as have three more senators in the party (Lisa Murkowski, Susan Collins, and Bill Cassidy). At the moment, it is unclear whether McConnell emerges in time for a floor vote or, if he does, whether he ultimately supports Blanche.

As a practical matter, however the math ultimately shakes out, the question on the merits arguably boils down to whether Blanche is an improvement over Pam Bondi, who was fired by Trump in April. But as I learned last week — after watching every public appearance Blanche has made since joining the administration, re-reviewing his public record, and taking stock of public polling— the answer to that question is undoubtedly “no.”

A year-and-a-half into Trump’s second term, the department is in historic disrepair, and there are plenty of potential reasons — both substantive and political — that a critical mass of Republicans could sink his nomination.

Reviewing the Tape

Bondi may have been the most openly political and partisan attorney general in modern American history, but Blanche is prepared to inherit that mantle.

Among other things, Blanche has consistently backed Trump’s self-serving, false, and revisionist history surrounding the 2020 election and the siege of the U.S. Capitol. (This is not that surprising when you recall that the reason he is in his position is that he led Trump’s criminal defense concerning those events.) He has also doubled down on Trump’s abuse of the department to pursue his political opposition — patting himself on the back for the charges against Democratic congresswoman LaMonica McIver, for instance, and overseeing both the prosecutions of the Southern Poverty Law Center and the second case against former FBI Director James Comey following Bondi’s departure.

In public appearances — as you can see in the video that we’ve compiled below — Blanche is often hostile toward Democrats and the media and sycophantic toward allies. He has, for instance, separately professed his love to both Trump and Stephen Miller and described the Trump-Russia investigation as the “Russia, Russia, Russia hoax” — a verbatim echo of Trump’s own false claims about the investigation.

When faced with difficult questions, Blanche is often indignant, glib, angry, or simply plays dumb. The results are frequently awkward and almost always unproductive, like the time that he lashed out at a reporter in a press conference or when he said that “every American” should be “happy” about Trump’s social media post directing Bondi to prosecute his adversaries.

Blanche has also offered a litany of politically motivated falsehoods — among other things, claiming that there is “a ton of evidence that the [2020] election was rigged,” denying things that he has said on tape about the administration being at “war” with federal judges, blaming Democrats in Minnesota for the deaths of Renee Good and Alex Pretti at the hands of federal immigration officers, and claiming that Trump wanted maximal transparency concerning the Epstein files. The worst episode occurred last August, when he publicly lashed out at a judge for supposedly preventing the administration from “sending Guatemalan children back to their parents in Guatemala” — a claim so false that the department later abandoned it in court.

Video by Fred Koschmann

You can safely expect Blanche to make all sorts of commitments to senators to get confirmed, but on Friday, the DOJ established that Blanche’s promises are practically meaningless.

Prosecutors have subpoenaed several New York Times reporters over an unflattering story about Trump’s Qatari-gifted Air Force One. This comes just three weeks after the department withdrew subpoenas that it had issued targeting several reporters at The Washington Post and The Wall Street Journal over national security stories — and after Blanche insisted that “reporters are not our targets.” That was a markedly different tone than he had taken previously, prior to sustained criticism from press advocacy groups.

He has evidently now reversed his reversal.

Broad Public Disapproval of the Department’s Work

Blanche began his stint as Deputy Attorney General and is responsible for the same policy initiatives and priorities as Bondi — broadly speaking, the pursuit of Trump’s political adversaries, a historic reallocation of resources toward Trump’s unpopular immigration enforcement policy, and a severe degradation of the department’s work in areas like national security, political corruption, and white-collar crime.

As you can see in the chart below, the department’s work has proven unpopular with the public at large, with Americans disapproving of some of the Trump DOJ’s most publicly salient work, and with remarkably bad polling for the two officials most closely associated with it in the public eye — Bondi and FBI Director Kash Patel.

Blanche is of course entirely responsible for the slush fund billed as the “anti-weaponization fund,” which the DOJ first tried to implement in May, and he led the work on the department’s botched release of the investigative files related to the late convicted sex offender Jeffrey Epstein.

Blanche also shares responsibility for Trump’s $1.4 billion crypto windfall, which has generated broad public criticism, including from otherwise consistent Trump supporters. The crypto industry — which is mostly useless and works by systematically preying on retail investors — got a major boost when Blanche announced last year that the DOJ was retreating from criminal enforcement in the area, and he has similarly brushed aside questions about Trump’s pardon of Binance founder Changpeng Zhao.

Even before Trump’s financial disclosure, 59% of Americans believed that Trump was using the presidency for personal gain. That number is not going down anytime soon.

The “Weaponization” Canard

One of Blanche’s most consistent claims is that Trump was the victim of “weaponization” by the Justice Department under Joe Biden, and that the public rejected the DOJ’s prosecutions against Trump in the 2024 election. The claim is false, belied by readily available public data, and politically corrosive.

Trump was not the victim of “weaponization” by the Biden Justice Department. The DOJ was right to charge Trump over his efforts to overturn the 2020 election (they should have done it much sooner), and it was right to charge Trump over his retention and mishandling of classified documents after he stonewalled and attempted to mislead the government for over a year after leaving office.

The public does not share Blanche’s view, either.

After the DOJ’s cases against Trump were filed, I commissioned some polls with Ipsos to get a sense of how the cases were landing with the public. The results showed that roughly 60% of Americans believed that the DOJ’s prosecution against Trump over the 2020 election was based on a fair evaluation of the evidence and the law and that roughly 60% of Americans wanted him to stand trial before the 2024 election. (He was bailed out by the Republican appointees on the Supreme Court.) Even then, more people believed that Trump was guilty of weaponizing the legal system (53%) than Biden (45%).

As recently as last November, 58% of respondents to a poll maintained that the federal and state prosecutions against Trump “were justified.”

Trump was legitimately reelected — but that was despite the criminal cases against him, not because of them.

Crass and Misleading Political Rhetoric

Blanche has also publicly personified the politicization of the Trump DOJ in a wide range of contexts, repeatedly employing partisan rhetoric and, in at least one peculiar episode, falsely attributing comments to former President Barack Obama.

This has mostly occurred in the context of the administration’s immigration enforcement policy, but it has also occurred in other ways both trivial and telling. He has, for instance, referred to “the Democrat party” (a partisan swipe) and claimed that “Google has deplatformed conservative speech and has put its thumb on the scale politically for years,” an assertion that has been repeatedly rejected by credible independent analysts.

But the subject of immigration is where some of Blanche’s most over-the-top claims have been focused.

“Why is there objection to sending ICE officers to polling places?” Blanche said onstage at the Conservative Political Action Conference earlier this year. “Illegals can’t vote.”

This was both facile — in reality, voting by noncitizens is very rare — and disturbing given that Trump, who remains deeply unpopular headed into midterm elections that could flip one or both houses of Congress to Democrats, appears desperate to stave off an embarrassing defeat and is perfectly content to lie about voter fraud to do so. Blanche’s rhetoric was also both dehumanizing and beneath the standard that we should expect from the nation’s top law enforcement official.

Blanche has also decried “the invasion of criminal aliens” under the Biden administration and encouraged prosecutors to target “the insidious results of the four-year invasion of illegal immigration that we are now working to repel” — partisan political rhetoric that is deeply misleading. (When Blanche told a crowd “I love Stephen [Miller],” he appears to have meant it.)

At the CPAC event, Blanche also offered a pat defense of the administration’s lethal boat strikes in international waters against alleged drug traffickers — an initiative that has drawn sharp criticism even from longtime conservative lawyers like John Yoo and that has so far resulted in more than 200 extrajudicial killings. “We are now treating terrorists and treating these narco-dealers as they should be treated,” he said, using the administration’s preferred terms for alleged drug traffickers importing drugs into the U.S. “We’re blowing them up.”

In one particularly strange episode, Blanche misquoted Obama in an effort to defend the administration’s immigration policy.

Blanche, who was speaking at a Federalist Society event last November, told the audience that Obama had once said, “Even as we are a nation of immigrants, we’re also a nation of laws. Undocumented workers broke our immigration laws and must go.”

What Obama actually said was this: “Even as we are a nation of immigrants, we’re also a nation of laws. Undocumented workers broke our immigration laws, and I believe that they must be held accountable — especially those who may be dangerous.” He went on to say that his administration was “focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children.”

Beyond the problem of flatly misquoting the former president in public, it is also ridiculous to suggest that the Obama administration’s enforcement policy was anything like the aggressive and indiscriminate crackdown under the Trump administration.

At another event, Blanche criticized a judge who, he said, had issued “a 161-page immigration opinion that included a personal anecdote involving a postcard to a child” that had “nothing to do with the case.”

What actually happened is that the judge, an appointee of Ronald Reagan who has served on the bench for nearly half a century, ruled in that decision that noncitizens lawfully present in the U.S. have constitutional free-speech protections — a once-uncontroversial position that the Trump administration had rejected. The judge included an image on the first page of a threatening postcard that he had received from a Trump supporter — it was not “a postcard to a child” (?) — while the case was pending.

The best you can say about Blanche’s comments about Obama and the Reagan-appointed judge is that he was incredibly sloppy, if not mendacious, or perhaps relied on incompetent staffers. Neither of these scenarios is defensible for the lawyer at the helm of the Justice Department.

Excerpt from opinion in American Association of University Professors v. Rubio, September 30, 2025

The Epstein Debacle

Blanche led the department’s response to the public push for the release of the Epstein files, which has been marred by serious errors and omissions. Perhaps more importantly, though, he also repeatedly misled the public last summer in an apparent effort to provide cover for Trump amid the public and political uproar.

It was Blanche who went to the courts and filed motions seeking the release of grand jury transcripts in the prosecutions of Epstein and Ghislaine Maxwell. It was apparent from the start that this was unlikely to generate new information and designed to distract the public.

Two different presiding judges later confirmed as much. One of them issued a scathing opinion describing the department’s suggestion that the transcripts would produce valuable new information for the public as “demonstrably false” and called the department’s motion “disingenuous.” The second judge echoed the sentiment, concluding that the department’s motion “appear[ed] to be a diversion from the breadth and scope of the Epstein files in the Government’s possession” that could have been released without court intervention or legislation.

Blanche, of course, also spent two days questioning Maxwell in prison even though, for a variety of reasons, this made no sense as a prosecutorial matter. The effort was roundly panned as another substantively pointless effort to distract the public. (It was also a waste of time and taxpayer money.)

Blanche, however, sought to defend the effort as a bold fact-gathering initiative on behalf of the American public. “Justice demands courage,” he said after the interview was first announced last July. He echoed this claim as recently as this April, but it remains preposterous. A large plurality of Americans now believe that the Trump administration has hurt efforts to hold Epstein’s alleged associates accountable rather than help them.

There is little question that Trump himself and the Justice Department are largely responsible for the ensuing, rolling debacle, which has satisfied pretty much no one. The whole thing kicked off after Trump and top administration officials reversed themselves last year on releasing the files — an apparent effort to protect Trump from embarrassment over his own presence in the documents — and, in the process, inadvertently provided crucial momentum for the eventual passage of the Epstein Files Transparency Act.

Blanche has since insisted (repeatedly) that Trump always wanted full transparency and disclosure from the Justice Department and that the department could not have produced anything without the legislation. Both claims are demonstrably false.

Misrepresenting Data

“Since President Trump took office,” Blanche said at a press conference last month, “if you look at any stat across the board, it’s much better.” This too is untrue.

You can see this most clearly in the data on financial fraud, which has consistently risen for years according to the FBI’s own data, including under the second Trump administration. This has coincided with the ongoing, yearslong de-prioritization of white-collar prosecutions, according to long-term data compiled and maintained by the Transactional Records Access Clearinghouse.

It is tempting to chalk up this discrepancy to Blanche speaking off the cuff at a podium, but it is a telling encapsulation of several different problematic aspects of his tenure — the shift away from prosecuting white-collar crime as part of the administration’s immigration crackdown, the retreat from criminal crypto enforcement, and a persistent willingness to breeze past (if not deliberately misrepresent) politically inconvenient facts.

The Political Question

It remains to be seen whether any of this will ultimately move a critical mass of Republican senators to vote against Blanche’s nomination.

Thom Tillis, for his part, has said that he will not tolerate any “equivocation on January 6,” but that already happened when Blanche publicly celebrated Trump’s Jan. 6 pardons. Despite that, Tillis recently said that he had “a positive predisposition towards Blanche.” Blanche may try to walk back or equivocate on his prior remarks during this week’s confirmation hearing (or perhaps just misrepresent what he actually said), but it is not a good sign that Tillis, who is retiring from the Senate in January, appears prepared to look the other way.

That said, it remains possible that Bill Cassidy and John Cornyn — both of whom lost their reelection bids this year after Trump endorsed their primary opponents — will prove to be harder sells. Cassidy recently got in a shouting match with Trump in a closed-door meeting with Senate Republicans about the war in Iran, while Cornyn has criticized Trump for insisting on “slavish” loyalty to the president.

Meanwhile, Susan Collins continues to face a difficult path to reelection this year, notwithstanding the implosion of Graham Platner’s candidacy last week. Trump is deeply unpopular with Maine voters, and a vote to confirm Blanche would provide additional fodder for her eventual Democratic opponent to tag her as a Trump enabler.

Lisa Murkowski, for her part, is up for reelection in 2028, and that is closer than it may seem. Trump is unpopular in the state, and Murkowski has at times clashed with Trump, who has lashed out at her and recently accused her of having “Trump Derangement Syndrome.” This is not exactly the best way to whip up support for a controversial Cabinet nominee, but she has also voted to confirm virtually all of Trump’s Cabinet.

We’ll find out soon enough how this ends, but one thing is certain: No one who votes to confirm Blanche will be able to say that they didn’t know what they were getting.

Open File with Ankush Khardori

The Grim Implications of the Supreme Court’s Ballroom Ruling

The Docket

The Strange Legal Logic of the Meta Settlement

The Strange Legal Logic of the Meta Settlement

LaMonica McIver Is One Step Closer to Trial

See Also: Immigration Enforcement

The Trump DOJ Has a New Litigation Tactic

Exhibit A: The Bar Complaint Against Jeanine Pirro

Objection: A Lazy Critique of Legal Journalists

The Docket

Off the Record

Michael Cohen Walked Right into Trump’s Trap

Michael Cohen Walked Right into Trump’s Trap

The Docket

Off the Record

The Administrative State Is on Life Support, but It's Not Dead

Trump Is Trying to Blackmail the Supreme Court. Again.

The Docket

The Trump Administration Is Enabling Financial Crime

The Trump Administration Is Enabling Financial Crime

What to Make of the Truth Social Lawsuit

Exhibit A

See Also

The Docket

Off the Record

Samuel Alito Is Not Doing Himself Any Favors

Two Bad Arguments Carried Blanche Over the Finish Line

Charging Decision

Exhibit A

The Docket

Off the Record

Inside the Court Case that Could End Super PACs

Inside the Court Case that Could End Super PACs

The Blanche Confirmation Deal Is a Farce

The Reflecting Pool Debacle

The Docket

Todd Blanche Is Very Bad at His Job

The Blanche Debacle Continues

The Docket

Off the Record

Can Democrats Make Peace with the Tech Industry?

Can Democrats Make Peace with the Tech Industry?

The Docket

What to Know About the Legal Challenge to the New Trump Tariffs

The Worst Argument to Confirm Todd Blanche

The Docket

Todd Blanche Was Right About One Thing

Exhibit A

Objection

The Docket

Off the Record

‘They Are Skilled at Chaos and Cruelty’

The Docket

Closing Argument

More Killings by ICE: a conversation with Ankush Khardori

A conversation with Ankush Khardori

Why the Latest ICE Killings Were Different

The Docket

Closing Argument

‘We Are Just Getting Started’

1. John Cornyn Is Still Undecided

2. Thom Tillis Is On Board

3. Blanche Continues to Misrepresent Facts on the Epstein Files

4. Blanche Evaded a Question on Sending Federal Law Enforcement Officials to the Polls

5. Democrats Missed Other Opportunities to Press Blanche

6. Blanche Was Rude

7. The Nomination Is Still Up in the Air

The Docket

Objection

Closing Argument

What I Learned By Watching Every Todd Blanche Appearance

Reviewing the Tape

Broad Public Disapproval of the Department’s Work

The “Weaponization” Canard

Crass and Misleading Political Rhetoric

The Epstein Debacle

Misrepresenting Data

The Political Question